IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Photographic 

Sciences 
Corporation 


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WEBSTER,  N.Y.  MSSO 

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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microruproductions  /  Institut  canadien  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographicaily  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checlced  below. 


n 


n 


n 


n 


n 


0 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommag^e 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  pellicul6e 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


I      I    Coloured  maps/ 


Cartes  g^ographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  blacl(}/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli^  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  Mure  serrde  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certainen  pages  blanches  ajouttes 
lore  d'une  restauration  apparaissent  dans  le  texte, 
mais.  lorsque  cela  4tait  possible,  ces  pages  n'ont 
pas  6t6  film^es. 


The 
to  tl 


Additional  comments:/ 
Commfintaires  suppl^mentaires: 


L'Institut  a  microfilm^  le  meilieur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m^thode  normale  de  filmage 
sont  indiquds  ci-dessous. 


I      I    Coloured  pages/ 


D 
D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagdes 

Pages  restored  and/oi 

Pages  restauries  et/ou  peiiiculies 

Pages  discoloured,  stained  or  foxet 
Pages  d^colories,  tachet^es  ou  piquies 

Pages  detached/ 
Pages  d^tachdes 

Showthrough/ 
Transparence 

Quality  of  prir 

Quality  in^gaie  de  I'impression 

Includes  supplementary  materi{ 
Comprend  du  materiel  suppl^mentaire 


I — I  Pages  damaged/ 

I — I  Pages  restored  and/or  laminated/ 

r~T1  Pages  discoloured,  stained  or  foxed/ 

I      I  Pages  detached/ 

rri  Showthrough/ 

I      I  Quality  of  print  varies/ 

I      I  Includes  supplementary  material/ 


The 
posi 
of  tl 
film 


Orifl 

begl 

the 

sion 

oth< 

first 

sion 

oril 


The 
shal 
TINI 
whi( 

Mar 
diffi 
entii 
begl 
righ 
reqi 
met 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata.  une  pelure, 
etc.,  ont  6t6  filmtes  A  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


Various  paging$. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  reduction  indiquA  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

/ 

12X 


16X 


20X 


24X 


28X 


32X 


Th«  copy  filmed  h«r«  hat  b—n  raproducad  thanks 
to  tha  ganarosity  of: 

Supreme  Court  of  Canada 
Library 


L'axamplaira  filmA  fut  raproduit  grdca  A  la 
ginArotiti  da: 

Cour  (;<nrAme  du  Canada 
Biblioth^ue 


Tha  imagaa  appearing  hara  ara  tha  bast  quality 
possible  considering  the  condition  and  .  'glbiiity 
of  tha  original  copy  and  in  keeping  with   he 
filming  contract  specif icationa. 


Original  copies  in  printed  paper  covers  ara  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  imprea- 
sion.  or  tha  back  cover  when  appropriate.  All 
other  original  copiaa  ara  filmed  oeginning  on  the 
first  page  with  a  printed  or  illuatratad  imprea- 
sion,  and  ending  on  the  laat  page  with  a  printed 
or  illuatratad  impression. 


The  laat  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  -^(meaning  "CON- 
TINUED"), or  the  symbol  y  (meaning  "END"). 
whichever  appliea. 


Las  images  suivantas  ont  iti  reproduitas  avec  le 
plus  grand  soin,  compte  tanu  de  la  condition  et 
da  \j  nettati  da  raxamplaira  filmi,  et  an 
conformity  avec  las  conditions  df  contrat  da 
filmage. 

Lea  axemplairas  originaux  dont  la  couvartura  en 
papier  est  imprimAe  sent  fiimAs  an  commanpant 
par  le  premier  plat  at  an  tarminant  soit  par  la 
darniire  page  qui  comporte  una  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  las  autras  axemplairas 
originaux  sont  filmAs  an  commanqant  par  la 
pramiAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  at  en  tarminant  par 
la  darnlAre  page  qui  comporte  une  telle 
empreinte. 

Un  dee  symbolaa  suivants  apparaitra  sur  la 
derniAre  image  de  cheque  microfiche,  salon  le 
caa:  le  symboie  — »^  signifie  "A  SUIVRE",  le 
symbols  ▼  signifie  "FIN". 


Mapa.  plataa,  charts,  etc.,  may  be  filmed  et 
different  reduction  ratioa.  Thoaa  too  large  to  be 
entirely  included  in  one  expoaura  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  framea  aa 
required.  The  following  diagrama  illustrate  the 
method: 


Lea  cartes,  planches,  tableaux,  etc.,  pauvent  dtre 
filmAs  A  des  taux  de  rMuction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  fttre 
reproduit  en  un  seul  ciichA,  il  est  film^  it  partir 
de  Tangle  supArieur  gauche,  de  gauche  A  droite, 
at  de  haut  9n  bas.  en  prenant  la  nombra 
d'imagea  n^cassaira.  Las  diagrammes  suivants 
illuatrant  la  mithoda. 


1  2  3 


t 

2 

3 

4 

1       5 

6 

THI 


i 

* 


DEI 


Aiitlior  of  "  Th 
I'hrasesand 


'/'lure  ia, perh 
i"'^rt  hoptUssly  ill  , 


^.  Y  '/  '  1 


THE   ADJUDGED    CAsIs  '"■ 


INSANITY 


'f(^: 


A«>    A 


DEFENCE  TO  CRIME, 


WITH  NOTES. 


BY 


v.,       ■^»- 


JOHK  D.  LAWSOIS^, 

••  The  Comract/o.  CoJ^rcrWers'tr^S"^  '""""'^■"•- 


"  '/'litre  I, 


/"<rt  IS.  perhaps,  no  gtibject  connertetf  ,rUh 


JST.  LOUIS: 
F.  II.  THOMAS  &  CO. 

1.S.S4. 


Knier«.l  a.n.nlinK  t  .  iiPl  ,,f  Congress,  in  tUo  y.vir  l*M,  l,v 

John  i>.  i.awsox, 

IniheiMrceof  ,i,c  I.lbran.-m  ..f  C.njjre,.  m.  Washington. 


Tlic  (le,« 
tlic  report 
!i  (•riniinal 
justice  in  . 

tlie  topic  ( 

wore  othei 

insjinity  is 

contain  on  t 

'»'»()!<,  there 

in  the    trial 

.'luthorities 

tion  such  a  i 

labor  and  e.\ 

In  the  no 

•'^tatcnient  o 

('liminal  Ca? 


•*^i.    Loiis,   J 


.S7.  Lnuis.  Mo. 
Prtss  "/  Xiroii  Jouts  Printing  Co. 


PREFACE. 


The  (1 


L'>^iirn  of  this  \v(„.|^   is  1 


tlic  reported 


"   present  i 


^''''^^'•"^  wlicr,.  insMJiitv  hiis  I 


Ji  a  .siii<r|,.  volti 


nie  all 


■*'  ^•'•'"lin.'il  charge  and    li;,s    I 
justice  in  America  or  Great   li 


>^'<'»i  •^('t  up  in  defence  of 


"H-n  passe.l   upon    hy 


•'I  fourt  of 


'•'tain,     r  h 


vre) 


tl 


•y  reported  case  of  this  kin.l.     If 
'0  topic  of  Insanity  the.i  the 
were  other    ciuestJans  involved 


ive  endeavored  t 


f^  ffive 


the  case  turned  wholly 


on 


case   is   <rivo 


th 


given  in  full;   if  th 


ere 


en  on 


in. 


an  it}'  i 


s  frivcn. 


But 


ly  that 


part  relatinjr  t 


o 


contain  on  the  subject  will,  I  think,  be  fc 


'none  ^v^.y  or  another  all  that  the 


'>(»()k,  therefc 


'"  the   trial   of 


>■«'.  uiil  enable  the  jud 


>"ndinthis  vol 


I'opoit.s 


unie 


Th 


Is 


.'inthorities 


my  cause  wheie  this  <K.fc 


go  or  criminal  lawyer  to  have, 


in  the  court-room  at  one  t 


tion  such  a  result  could  only  1 
'•'il>or  and  expense  some  five  1 


inie 


>e  obtained  I 


In  the  notes  I  hj 


umdred  volume.^ 


nee   is   urged,  all  the 
Without  this  collec- 
>y  procuring  at  m-ait 


of 


.statement  of   the   law  rel 
Criminal  Cases 


ive  tried   to  set  out 


report." 


fai-cfid  and  thorou<^h 


'^ting  to   the  defence  of    Insanity 


in 


St.   Lot 


IS,  March,  iys4. 


''.  D.  L. 


Toe  Legal 


The  Blude 


DlUXKEXXE 


Klei'tomani 


KVTDENCE  A? 


IXSAN.TY  AT 


CONTENTS. 


'V.'  •!' 


CIIAI'TKK  I. 


The  Legal  Test  of  Insanity 


I'Ai.i:. 


CIIAPTKK  II. 
The  Blkden  of  Pkoof  of  Insanity 


.     327-532 


(IIAPTKH  HI. 


DiU-NKENNESS 


533-7G8 


CIIAITKR  IV 
Kleptomania  and  Sojinambilism    . 


7()9-781 


CilAlTEIi  V. 


KVTDENCE  and  PRACTICE 


.      7S.5-8.S0 


CHAPTER  VI. 
Insan.ty  at  Trial  ou  after  Conviction 


881-1)11) 
(V) 


TABL 


[TIk;  p.'ijro 
Tims:  , 


Vko  r.  Stat 
A'lurican  L 

Vll(l(TSOU   V 

Aiulersou  v 
Vnonynioijs 
\niiour  I',  f 
Arnold's  Cii; 

Cited  in 
11.  ;i(;; 
;!:»:)  (i 

Arnold  V.  St 


I{.icclgalupo 

Cited  in 

i5iicon  V.  Chf 

IJailcy  V.  Sta 

Cited  in 

Ualdwln  V.  S 

Cited  in  1 

(187U) 

ISall's  Case,  i 
lianks  V.  Goo 
Hurtholoniow 
HaxtLT  V.  Abl 
Ik'usiey  v.  St 
Cited  in  1 


TABLE  AiND  COXCORDANCE  OF  CASES. 


Tl.u>:  Anderson  ..  State.  4.  Cuuu.  .14.  i.  reportcc.  iu  full  on  p!^  12»."      ' 


Vko  J-.  State,  fi  Tex.  CA|)p.)  ;!;.h.    p.  84;}. 

A-urican  Life  Ins.  Co.  „.  A.ssotts,  I  Va.  St.  17.:,     p.  443. 

ViKlersou  V.  State,  4i'  Gu.  :t.    p.  jic. 

Amlersour.  State,  43  Conn.  514.     pp.  129,  Jro,  8C!). 

Viionymou.s,  1  Salk.  i:,-j.    p.  mk<;. 

\nnoiir  i-.  State,  i\:\  Ala.  17,!.     p.  htu. 

>n,ol,IVs  C«»c,  „;  „„„..  St.  Tr.  „.,-,.     „„.  ,;;,  ,„,  ,o«,  ,,3,  314,  3„-„  ;:,r,  «. 

Arnold  V.  State,  1.'3  Jnd.  170.     p.  12:,. 

H.icclgalupo  y.  Cora.,  33  r.ratt.  807.     pp.  24,5i'l. 

Cited  in  Dejarnette  v.  Com.,  75  Va.  8(;7  (1881). 
l5acon  V.  Charleton,  7  Cu.sli.  581.     p.  79.). 
lifiUcy  V.  State,  2(1  Ind.  422.     p.  753. 

Cited  in  FLsher  0.  State,  04  Ind.  435  (1878). 
lialdwm  ..  State,  12  Mo.  223.     pp.  13,  l.;,  395,  42.;,  428 

^as-.n'' tI'  '•  '''''  :'  ''"•  ''''  '''  ^''''^  =  State  ..  Redcmeier,  71  Mo  17. 
(18/ U);  Thomas  v.  State,  40  Tex.  (JO  (1874). 

liMlI's  Case,  2  City  Hall  Rec.  85.    p.  85(;. 

li='Mks  v.  GoodfcUow,  L.  R.  5  Q.  B.  54'J.     pp.  82,  83,  84. 

Hartholomew  v.  People,  104  IU.  (J05.     p.  76.S. 

Haxter  V.  Abbott,  7  Gray,  71.    p.  <jo. 

Ikasley  u.  State,  50  .\Ia.  149.    pp.  577,  74s. 

Cited  in  TidwcII  V.  State,  70  Ala.  33  (1881). 

vii 


i> 


Vlll 


TAULi:    AM)    CONCOKUAXCK    <»!•'   CASKS. 


Uilliimlianrs  Caso,  5  ('.  v*c  I'.  .Jti'.t.    pp.  CJ,  l'.i7,  :ilS,  lM'.',  l'l'o,  •_':ll,  -jjii,  ;i47,  ;ifl.', 
;i77,  Jii.i,  \\H,  ihii,  :;:.i . 

C/ie(J  in  State  (•.  Joiu-s,  '.0  N.  II.  ;;(;;»  (IH71);  Iloswcll  r.  State,  •:;',  Ala.  WSJ 
(lH7'.t);  State  J'.  MeCoy,  ;;t  Mo.  j;l.i  (lf'14);  Stale  /•.  ImIIci',  L'j  Iowa,  t;7 
(18118);  C'liole*'  r.  .Siatt",  ai  tiu.  4l'4  (1m(;());  UoIhtIs  r.  .stale,  ;>  lia.  I'.lo 
(1847);  (Jraliaiu  v.  Com.,  HI  H.  Moii.  587  (18.">.'i);  llopps  i\  IVople,  ;il  III. 
385  (JHt;;;);  state  r.  itartlelt,  J;!  N.  II.  2l.'4  (IM';I);  People  t'.  I'liiL",  L'  Marl.. 
Ct;i;  (ls|H);  People  r.  Montiioiiiery,  !:!  Al)h.  Pr.  (N.  s.)  l'o7  (1^70);  Peoi.le 
V.  Cuffniuu,  -Ji  Cal.  i.';;o  (18t;4) ;   U.  o.  Offonl,  o  C.  Jc  P.  Iti'.i  (lf<;!l). 

Hcuuett  i\  State,  Mart.  .<;  V.  i;i;;.     pp.  o71,  711. 

Cited  in  People  r.  Koliliisoii,  -'  Park.  l';ij  (18JJ). 
Ik-riiiii  '".  State,  ;;i  Ohio  St.  ill.     p.  .".18. 

Cited  ill  Ford  r.  state  (Ala.),  H;  Uep.  (;47  (i8!S:>).  • 

Ikverley'.s  Case,  4  Coke,  li'.V*.     pp.  ;'.12,  58t;,  (',28,  (Kll. 

Cited  in  People  r.  Ko^ers.  is  \.  Y.  !•  (1858);  State  r.  Pike,  4'.'  \.  II.  ^W 
(1X70);  Coniwell  r.  Stat*',  .Mart.  &  Y.  147  (l8L'7);  State  i-.  Tatfo,  50  N't. 
48i{  (1878). 

Hilmuirs  Case,  Whart.  C.  L.  :io.     p,  :',7. 

Uml  V.  State,  It  Ca.  4.'..     p.  542. 

lUnlsair.«*  Case.     p.  741. 

Biveiis  V.  State,  11  Ark.  4(;n.     p.  yM;. 

Blackhiini  )\  State,  L';?  Ohio  St.  14i;.     pp.  '_'5s,  270,  JKU. 

Cited  in  Boswcll  v.  State,  c;'.  Ala.  .121  (187'.')  • 
niaiichard  v.  Ncstlo,  .3  Dcnlo,  ;}7'.     )).  :114. 
Hlimin  v.  Com.,  7  lliish,  :'.2,'.     pp.  5^12,  07.»,  727. 

Cited  in  Siianiiaiiaii  r.  Com.,  8  Hiisli,  4(i;>  [8  Am.  Rep.  4ilj]. 

Koarilmaii  v.  Wooilmaii,  47  N.  II.  120.     pp.  s:!,  S4,  iU,  .■112,  r,U. 
Boml  V.  State,  2;'.  Ohio  St.  ;'.4'.i.     p.  518. 

Citrd  in  Heriiiu  r.  Stati',  111  Oiiio  St.  Ill  (18711);  State  r.  tiroar,  2'.>  Miuu.221 
(1882). 

Bond  V.  State,  17  Ga.  I'.i4.     p.  54(1. 

Bonds  ?'.  State,  ^lart.  &  Y.  14.!.     pp.  i)04,  '.'17. 

Bonfanti  v.  State,  2  Minn.  128.     pp.  I't2,  372,  518,  590,  010. 

Cited  in  State  v.  Feltcr,  .^2  Iowa,  40  (1871);  State  r.  Gut,  l.S  Minn.  34.'? 
(18(18);  Strauder  r.  State,  II  W.  Va.  745;  Boswell's  Ca.sc,  20  (iratt.  8(10 
(1871);  Slate  r.  drear,  2'.i  Minn.  221  (1882). 

Boswell  t).  Com.  (or  Boswell's  Case),  20   Gratt.   8(10.     pp.24,  521,  «92,  727. 

Cited  in  Strander  v.  State,  11  W.  Va.  745;  Dejarnette  v.  Com.,  75  ^'a.  8(17 
(1881);  Baeei.iraliip()?'.(;()m.,  I'.llCratt.  807,  lid  Am.  Hep.  7'.'5  (1880);  Pordc 
Statu  (Ala.),  l(i  Kep.  (147  (188;i)  ;  Statu  v.  Robinson,  20  \V.  Va.  713  (I882i. 

Boswcll  r.  State,  (53  Ala.  307.     pp.  300,  324,  352,  ."14. 
Cited  in  Ford  r.  State  (Ala.),  Id  Rep.  (147  (iss;;). 


Bovard 
Cited  I 
5'1  .N 
liowdth  r 

Bradley  '•. 
Citnl 
(1S7' 
(lb'' 

liiinkley  v. 
Briltain  v. 
Brotlierton 
Cit'd 

How 

Brown  r.  C 
Cited  ii 
Brown  C 
Bryan  v.  W 
Burke  r.  Al 
Biiri^e.ss  r.  ( 
Burrcll  r.  S 

Cnlvin  r.  St 
Cannldiael, 
Carr  r.  Clou 
i':irler  r.  St; 

Cited  in 
(ls7(V 

(Ai)p. 
Cirter  v.  St 
Cartwright 
Chamberlaii 
Chase  v.  Pe 

Cited  ii 
745; 
(1871 
C47  (: 

Choice  V.  Si 

Cited  i 
(1877 
45  Ga 

Clapp  V.  Fu 


TAHLK    AM)    <ONfOI{l»AN(K    OF    CASEt*. 


IX 


4 


HuMuil  '•.  Slalu,  ;10  Miss.  CoO.     pp.  4,  '2'M,  474,  «;I8,  N4(). 

CUM  in  Weld)  I'.  State, '.i  Tex.  (App.)  .')iH,  oil  (1>(H0);  (•iiniilunluuii  p.  State, 
ot;  Mi>.s.  L'i;'.i,  ;;i  Am.  \lv\).  Wu  (Is7!i). 

Uowdiu  r.  I'coplf,  12  IIiiii,  Kt.     pp.  H07,  ><^'<\  ■ 

Bradli'y  r.  Statr,  :!1  Iiid.  \'X2.     \)\).  114,  ;'.1'4,  7»s,  7'.M,  hiU,  h77. 

Cited  in  Flslior  t.  State,  lU  lud.  4;i,")  (1s7h)  ;  (iiiefiu  <'.  State,*;;;   Iii.l.  27s 

(IH78);  Suwyer  r.  State,  Do  Iiul.  80  (l»7l) ;    McDougal  u.  Slate,  88  Iiul. -'♦ 

(188^). 

ICinkk-y  v.  State,  58  (Ja.  l".m;.     pp.  l'.il',  hCO. 

Urittaln  w.  Allen,  li  Dev.  ll'O.     p.  88t;. 

HrotluTton  r.  People,  75  N.  Y.  IJii.     pp.  44,  45,  4il,  52,  5.'?,  501,  529. 

Citrd  in  O'Coiiiiell  v.  People,  H7  .N.  Y.  ;177  (I8b,i-  People  r.  O'Coiiliell,  'i-' 
lluw.  Pr.  4;it;  (1881);  Walker  «.  People,  I  .\.  V.  Ciim.  Uep.  7  (1881). 

IJiowii  r.  Com.,  78  Pa.  St.  1_'2.     |>p.  2«3,  444,  520. 

Cited  in  .Myers  r.  Com.,  8;5  Pa.  St.  141;  Pani.  !<  u. Com.,  80  P'.  St.  2(;()(1S78). 
Urown       Coin.,  It  Hush,  ;!it8.     p.  517. 
Uiyaii  V.  Walker,  20  (la.  4sii.     p.  542. 
Miirke  v.  Alien,  2:i  N.  II.  Km;,     p.  :!l;i. 
Miirge.ss  »•.  Com.,  Va.  Cas.  28;^.     p.  5^7. 
Miirrell  r.  State,  18  Tex.  71;!.     i».  854. 

C;ilviii  r.  State,  25  Tex.  7;t5.     p.  710. 

Carinlchael,  In  re,  :w;  Ala.  514.     i>.  H5. 

<';irr  /•.  ClouL'h,  2r,  N.  II.  4so.     p.  .".i;!. 

I'.irter  V.  State,  12  Tex.  500.     p[>.  2(;'.i,  5;i2,  5SS,  711,  74«,  870. 

Cited  in  Thomas  ?-.  State,  40  Tex.  "iO  (1S74)  ;  Zenibroil  v.  State,  25  Tex.  5i;t 
(1S7II):  U'en/.  >\  State,  1  Tex.  (App.)  ;i(l  (I87r,) ;  Webb  v.  State,  5  Tex. 
(Ai)p.)  5'.m;  (187'.0. 

('.irtcr  V.  State,  SC  (ia.  4(;8.     ji.  874. 

Cartwrlght  v.  State,  8  Lea,  37t;.     pp.  652,  754. 

Chamberlain  of  London  c.  Evans,  5  Bl.  Com.  14:».     pp.  .'513,  570. 

Cha.se  v.  People,  40  111.  352.     pp.  372,  4<;2,  471),  52(1,  5'.'!i. 

Cited  in  State  o.  Fclter,  32  Iowa,  4!)  (1871);  Strander  v.  State,  11  W.  Va. 
745;  State  r.  Crawford,  11  Kas.  ;'.2  (1875);  Boswell'.s  Case,  20  (iratt.  sr.o 
(1871) ;  Wright  v.  People,  4  Neb.  40U  (1871))  ;  Ford  v.  State  (Ala.),  hi  Uep. 
647  (1883). 

Choice  V.  State,  31  Ga.  424.     pp.  232  301),  538,  8(;0. 

Citrd  in  Pierce  r.  State,  53  (Ja.  3(15  (1874);  Brinkley  v.  State,  58  Ga.  2!t« 
(1877);  Humphreys  v.  State,  45  Ga.  IHO  (1872);  Westmoreland  v.  State, 
45  Ga.  225  (1872) ;  Estes  v.  State,  55  Ga.  30  (1876). 

Clapp  V.  FuUertou,  34  N.  Y.  I'JO.    p.  HI. 


TABLE    AMJ    CONCORDANCE   OF    CASES. 


Clark  V.  Ostraiidcr,  I  Cow.  441.     p.  H8f!. 

Clark  V.  StKc,  s  Ti-x.  (App.)  :'..V1.     pp.  260,  :.:'.l>. 

Clark  I'.  State,  12  Ohio,  48.'?  (40  Am.  Doc.  4KI.)     pp.  !)o,  2:11,  258,  4;;5,  ST'.l. 

Cited  in  McAllistiTf.  State,  17  Ala  4;$4  (18jn);  Slate  v.  Felter,  25  Iowa,  07 
(IHC.S);  ThoMia.s  V.  State,  40  Tex.  (!0  (1874  ;•;  Bcr^Mu  r.  State,  ;?1  v)liio  Si. 
HI  (1>!7(:);  Blaekhurii  v.  State,  23  Ohio  St.  14(!  (1872):  Farrcr  v.  State,  2 
Ohio  St.  70  (1853);  Loeffner  v.  State,  10  Ohio  St.  5'J8  (1857). 

Clark  V.  Sawyer,  2  N.  Y.  4'.i8.     p.  .".U. 

Clark's  Case,  1  Cit}-  Hall  Kee.  177.     pp.  2;;4,  2.S7. 

Cited  ill  Macfarland's  Case,  8  .Vbb.  Pr.  (\.  s.)  57  (1870). 

Clary  v.  Clary,    p.  404. 

Clem  V.  State,  31  Incl.  480.     i)p.  124,  12;) 

Cluck  V.  State,  40  Ind.  2(;3.     p.  748. 

Citod  in  Yisherv.  State,  (;4  lud.  435  (1878);  People  r.  llobinson,  2(i  \V.  Va 
713  (1882). 

Coffee  V.  State,  3  Yers.  283.     p.  509. 
Colbath  V.  State,  2  Tex.  (App.)  3;il.    p.  751. 

(■ol.''s  Case,  7  Abb.  Pr.  (n.  s.)  321.     pp.  220,  234,  270,  857,  8(10,  8(14. 
Cited  in  Macfarland's  Case,  8  Abb.  Pr.  (s.  s  )  57  (1870). 

Com.  V.  Braley,  1  INIass.  103.     pp.  27,881,  inc. 

Cited  in  J  ones  V.  State,  13  Ala.  153  (1848) ;  People  v.  Kleim,  Kdm.  Sel.  Cas   13. 

Com.  V.  Coc,  115  Mass.  418.     p.  801. 

Coin.  V.  Daua,  2  Mete.  340.    p.  4<;it. 

Com.  V.  Dorscy,  103  ^lass.  412.     p.  G(;7. 

Citfd  in  llopt  v.  People,  104  U.  S.  G31  (1882)  ;  State  v.  Kobinson,  20  W.  Va. 
713  (1882). 

Com.  V.  Dougherty,  1  Bro.  App.  XVIII.     p.  728. 

Com.  V,  Drum,  8  P.  F.  Smith,  22.     pp.  43'J,  040. 

Com.  V.  Kddy,  7  Cray,  583,  I'.t  Law  Rep.  t'dl.     pp.  301),  3!)4,  413,  489,  5t7,  599, 
854,  803. 

Cited  in  King  i'.  State,  9  Tex.  (App.)  558  (1880);  Boswell  v.  State,  03  Ala. 
325  (1879)  ;  State  v.  Iloyt,  47  Conn.  518  (1880) ;  State  v.  Lawrence,  57  .Me. 
574  (1870);  Strander  v.  State,  11  W.  Va.  745;  State  v.  Vann,  82  N.  C.  031 
(1880);  State  v.  Bartlett,  43  N.  11.  224  (1801);  BoswcU's  Case,  20  Gratt. 
800  (1871);  State  v.  Klinger,  43  Mo.  127  (1808);  State  v.  Grear,  29  Minu. 
221  (1882). 

Com.  c.  Fairbanks,  2  ,\Uen,  811.     p.  ill. 

Cited  in  State  v.  Stiekley,  41  I:i.  232  (1875). 
Com  r.  Farkin,  2  Pars.  4;V,i;  2  (.'lark,  20S.     pp.  2.>{),  300. 

Cited  in  Com.  v.  Freth,  3  Pliila.  105;  5  Clark,  455  (1858). 


TAULE   AND   COXCOHDAXCF   OB'   r.\si;s. 


XI 


('oi:i.  V.  Frcucli,  Tliatcli.  Cr.  Cas.  n;;;.     p.  -,si. 

I'om.  V.  Froth,  ;;  I'liila.  in:,,  r,  Clark,  45J.     pp.  :!7,  -Ji,'.),  -jo;,  2W). 

Ciird  in  Coin.  v.  Winnoniorc,  1   Jir.'wst.  .'!ji;  C1H(;!I);  Sayri's  v.  Com     f-s  Pa 
St.  L'lil  (18711).  '' 

(  om.  V.  Ilairgcrfy,  i  riark,  1N7.     pp.  4;!!),  CO!),  741,  742. 

Cited  iti  Xlchols  v.  State,  h  Ohio  St.  4:!5  (1R5«) :  Ortwciii  v.  foin     7(;  p.i   st 
414  (1875). 

I '0111.  0.  Hardy,  'J  Mas.s.  ;;i7.     p.  44(;. 

Coin.  0.  Hart,  'J  IJrewst.  oh\.     pp.  l'oI),  520,  72s,  Jir,. 

Com.  w.  ilaskoll,  4  Am.  L.  Kfv.  210.     j.p.  75,  Hi,  127. 

Cited  in  State  v.  Jones,  50  X.  II.  ;;(;;»  (1871);  Stevcn.s  y.  State,  ;il   Iml.  485 
(18G'J);  Bradley  v.  State,  ;il  Iiid.  4',t2  (I8f;'.i). 

Com.  V.  Hathaway,  l.'i  Ma.s.s.  2;i:t.     j).  27. 

Lited  in  People  v.  Kleini,  Edm.  Scl.  Cas.  i;!. 
Com.  V.  Hawkins,  ;?  (iray,  408.     pj).  407,  4sw,  ooo,  728. 

Cited  in  Hopt  v.  People,  104  V.  S.  I'll  (1882) ;  KafEerty  v.  People,  00  HI.  118 
(1872);  People  v.  Garliutt,   17  .Mich. 'J  (180K);  State  u.  Crear,  2;»  .Mhni 
221  (1882);  State  v.  liartlett,  43  \.  II.  224;  State  v.  Robiusou,  2o  W    Va 
713(1882).  ,  .        . 

Com.  V.  Heath,  11  Gray,  303.     pp.  17,  232,  478,  517. 

Cited  in  State  v.  Hoyt,  47  Conn.  518  (I.S80);  Wright  v.  People,  4  Neh.  40;. 
(1870);  Ilauo  V.  State,  11  Neb.  537;  38  Am.  Hep.  375  (1881);  Ford  t;. 
State  (Ala.),  10  Rep.  047  (1883). 

com.  I'.  Howe,  9  Gray,  110.    p.  705. 

Com.  r.  Jones,  1  Leigh,  012.     pp.  000,  741. 

Oited  in  yichols  v.  State,  8  Ohio  St.  435  (1858). 
Com.  V.  Kimball,  24  Pick.  300.     pp.  372,  400,  41(2. 
Com.  V.  Kncplcy.     p.  75. 

Cited  in  State  v.  Jones,  50  N.  H.  300  (1871). 

Com.  V.  Mackie,  1  Gray,  01.    p.  304. 

Com.  V.  Merriani,  7  Ma.ss.  108.     p.  010. 

Com.  r.  Moore,  2  I'lttsb.  502.     p.  303. 

Com.  r.  hosier,  4  Pa.  St.  204.     pp.  75,  DO,  250,  205,  296,  300,  ;;o,l,  305,  304,  427 
iM,  442,  581,  027.  .         .         , 

Cited  in  StatG  V.Jones,  50  N.  11.300  (1871);  State  i;.  Rcdomeier,  71  Mo.  177 
(1870);  Beasley  v.  State,  50  Ala.  153  (1873);  Roswell  v.  State,  C3  Ala. 
321  (1870)  ;  State  v.  Felter,  25  Iowa,  07  (180H) ;  Fonts  ,-.  State,  4(1.  Greene, 
500  (1854);  Com.  v.  Moore,  2  Pittsb.  602  (1804);  Com.  v.  Froth,  3  Phila. 
105,  5  Clark,  455  (1«5«);  Com.  v.  Winnemore,  1  IJrew.st.  350  (1807); 
Sayros  v.  Com.  88  Pa.  St.  2lil  (1870);  Ortweiu  v.  Com.,  70  Pa.  St.  4U 
(1875). 

Com.  r.  McKee,  1  Gray,  01.     pp.  451,  4(;o,  480,  84!t. 


Xll 


TABLE   AND    COXCOKUAXCE    OF    CASiES. 


Com.  i\  O'llara.     p.  CM. 

Com.  '•.  I'omcroy,  117  Mas.s.  14:5.     i)p.  799,  85'.i. 

Com.  I'.  Rogers,  7  Mote.  500  (41  Am.  Dec.  45«).  i)p.  5,  <',,  •^'2,  W,  7^^,  7r,,  ito,  95, 
ii.'7,  l.Vs,  171',  i:t7,  2:!i,  •-'.••.L',  '2:\:,,  \>ox,  :;(i;i,  :','j-2,  r.i'4,  ;;(;4,  ;;7:.',  ;'.78,  ;Jiil,  4io,  41^. 
423,  435,  4G'J,  474,  475,  47il,  4S«,  4'.ii',  4'.t7,  517,  578,  5in). 

Citrd  in  Kin;,'  v.  Statr,  1)  Tl-.x.  (App.)  554  (isso);  State  r.  Jones  50  N.  II 
I'.tl!)  (lH7it);  McAllLsttT  r.  State,  17  Ala.  4;;4  (1850);  Jleasley  v.  State,  5'' 
Ala.  150, 152  (1S7;}) ;  Ho.swell  v.  State,  (13  Ala.  ;!"l  (187:i) ;  State  r.  MeCoy, 
34  Mo.  53(i  (18(14) ;  State  v.  Windsor,  5  llarr.  (Del.)  512  (1851);  Steven- 
V.  State,  31  Ind.  485  (18i;;i);  State  v.  Felter,  25  Iowa,  <;7  (18(;8);  Stater. 
Lawrence,  57  Me.  574  (1870);  Roberts  v.  State,  3  (la.  310  (1847);  Stater. 
Felter,  32  Iowa,  4!)  (1871)  ;  People  v.  (iarbutt,  17  Alich. '.)  (18(;8)  ;  Bovardr. 
State,  30  Miss.  COO  (185(i) ;  draliam  v.  Com.  1(1  U.  Mon.  587  (1855)  ;  IJnid- 
ley  V.  State,  31  Ind.  4lt2  (18<i'J)  ;  Fonts  v.  State,  4  G.  Greene,  500  (1854) : 
Patterson  v.  People,  40  Barb.  <125  (18(111);  Rnssell  v.  State,  53  Miss.  3(17 
(1870) ;  State  r.  Sliippey,  10  Minn.  223  (18(15) ;  People  ?».  McCann,  Ki  N.  V. 
03  (1857);  Strauder  v.  State,  11  W.  Va.  745;  Stuart  v.  State,  1  Baxt.  isii 
(1873)  ;  Zembrod  v.  State,  25  Te.\.  Sl'.t  (18(10)  ;  Farrer  r.  State,  2  Ohio  St. 
70  (1853)  ;  Bradley  c.  State,  31  Ind.4'.i2  (18(;!i) ;  Loeffner  v.  State,  10  Ohio 
St.  5'J8  (1857) ;  State  ?•.  Bartlett,  43  N.  II.  224  (18(;i) ;  BoswelPs  Case,  20 
C.ratt.  800  (1871) ;  People  v.  Pine,  2  Barb.  6(i(!  (1848) ;  U.  S.  v.  Holmes,  1 
Cliff.  98  (1858);  Cunningham  v.  State,  5()  Miss.  209  (30  Am.  Rep.  200) 
(187!>)  ;  State  v.  Klinger,  43  Mo.  127  (18(>8)  ;  State  v.  Hundley,  40  Mo.  41 1 
(1870);  People  v.  Kleim,  Edm.  Sel.  Cas.  13  (1845);  IT.  S.  v.  Guiteau,  10 
Fed.  Rep.  101  (1882)     State  r.  Pike,  4'.i  N.  II.  399  (1870). 

Com.  V.  Sayres,  12  Pliila.  553.     p.  521. 

Affimied,  Sayres  v.  Com.  88  Pa.  St.  2111. 
Com.  V.  .Sherlock,  14  Leg.  Int.  33.    p.  37. 
Com.  V.  Smith,  15  Leg.  Int.  03;  0  Am.  L.  Reg.  257.     p.  040. 
Com.  V,  Webster,  5  Cush.  320.    pp.  107,  440,  515. 
Cora.  V.  Wilson,  1  Gray,  337.    pp.  Ill,  HOO. 

Cited  in  State  p.  Stickley,  41  la.  232  (1875). 

Com.  V.  Wiunemore,  1  Brewst.  350.     pp.  259,  268,  520. 
Com.  V.  York,  9  Mete.  93.     pp.  488,  4S9,  493,  497,  802. 
Corey's  Case.     pp.  70,  48!t. 
Cornwell  v.  State,  Mart.  &  Y.  147.     pp.  583,  047,  727,  741,  744. 

Cited  in  State  v.  Thompson,  12  Xcv.  140  (1877) ;  People  v.  Rob'nson,  2  Park 
235  (1855)  ;  Pirtle  v.  State,  9  Humph.  003  (1849). 

Coyle  r.  Com.     pp.  441,  520. 
Cranmer's  Case,  12  Ves.  445.    p.  317. 
Crowell  y.  Kirk,  3  Dcv.  355.    p.  405. 
Cross  V.  State,  50  Wis.  2G1.    p.  731. 


i 


f'unniiiirlia 

i:ited  i 

(Jurry  v.  Cc 

Dawson  v. 

Cited  ii 
Dtjarnette 
\^  Del'Uield  w. 
1  )i'w  ('.  Clai 
Dickinson 
Donuell  v. 
Doty  I'.  Sta 
Dove  V.  Sta 

Cited  in 
(1879 

Duchess  of 

1%     Duiiluim's  i' 

Kiistwood  V 
Kilger  u,  Stt 
Kruin  v.  Stf 
Mstcs  I'.  Sta 
Cited  in 

Fain  v.  Com 
Farrar  v.  St; 
Farrell  v.  P( 
KrlFs  Case, 
Fcrrell  v.  St 

Citi'd  in 
(App. 

Ferrer's  Ca.« 

Cited  it 
(1847; 

Ferris  v.  Pci 

Cited  in 

Fisher  v.  Pe 

Cited  in 

(1871 

(18G3 


TABLE    AND    roxrOUDAX(  K    OF    CASES. 


Xlll 


Cuuniii-Imm   -•.  State,  5.;  Aiiss.  i>.;!»  (;ii  Am.  K.'p.  .".CO).     ,,,,.   23;i,  3i'4,  470,  527. 

Cited  in  Vord  r.  Statu  (Ala.),  k;  Hep.  (;47  (l>iH;i). 
Curry  v.  Com.,  2  Bush,  (J7.     ]>.  754. 

Dawson  v.  State,  Id  Ind.  428.     p.  758. 

Cited  in  Fislier  r.  State,  (;4  Ind.  4;;5  (1878). 
DiJarnetle  v.  Com,  75  Va.  807.    pp.  18,  521. 
Dd'dieldr.  Parish,  25  N.  Y.  11.     p.  314. 
Dow  V.  Clarke,  3  Addams,  7-.».    pp.  81,  84,  314,  315. 
Dickinson  o.  Barber,  It  Mass.  225.    p.  7'jd. 
Dunuell  V.  Jones,  13  Ala.  4!)0.    p.  35IK 
Doty  I'.  State,  7  Blaekf.  427.     i».  4(;!). 
Dove  V.  State,  3  Ileisk.  348.    ])p.  2fi'.),  502,  531. 

Cited  in  Stuart  v.  State,  1   Baxt.  180  (1873) ,  Lawless  v.  State,  4  Lea,  179 
(I8<t0  ;  iord  V.  State  (Ala.),  l(j  Kep.  mj  (i883). 

Duchess  of  Cleveland's  Case.     p.  202. 

Dunham's  .Vppeal,  27  Conn.  193.    p.  m. 

Kastwood  V.  People,  3  Park.  25.    p.  7(JG. 

Kiiiror  V.  State,  43  Ala.  312.     p.  580. 

Krwin  V.  State,  10  Tex.  (App.)  700.     pp.  2(19,  748,  S45,  807. 

Kstes  V.  State,  55  Ga.  31.    p.  729. 

Cited  in  Marshall  v.  State,  59  Ga.  154  (1877). 

I'ain  V.  Com.  78  Ky.  183.     pp.  324,  772,  782. 
Farrar  v.  State,  2  Ohio  St.  70.    pj).  258,  519. 
I'arrell  v.  People,  103  111.  17.     p.  871. 
Kill's  Case,  9  Leigh,  613.    p.  915. 
IVrrcl]  V.  State,  43  Tex.  503.     pp.  71 1,  746. 

^'ipOSOa^r'''  '  '''"■  ^^''^'^-^  '''  ^^'"")'  ^^"^  -  ^t«^^".  1  Tex. 
Icm-r's  Case,  19  How.  St.  Tr.  947.    pp.  (;7,  197,  212,  217. 

Cited  VI  State  .Jones,  50  N.  H.  3.;9  (1871);  Roberts   ..  State,  3  Ga.  310 
(1840 ;  R.  V.  Iladlleld,  27  How.  St.  Tr.  1282. 
Furris  v.  People,  35  N.  Y.  125.     p.  44. 

Cited  in  Walker  v.  People,  1  N.  Y.  Crim.  Rep.  7  (1881) . 
Fisher  V.  People,  33  HI.  283.     pp.  372,  413,  451,  454,  520. 

^n8-n^T.  "•  '!T'  '"''"""•  '''  ^''''^'^  ^'''^^  '■  ^^^''tor,  32  Iowa,  49 
(18.1),  State  ..  Kimger,  43  Mo.  120  (1808) ;  IIopps  ..  People,  31  111.  385 


-ft 


XIV 


TABLE   AND    CONCOUUANCE   OF    CASES. 


Fislu'i-  V.  Statu,  ^j^  Ind.  4;5j.     p]).  748,  8tt9. 

Flanasian  v.  People,  f)-'  N.  Y.  4G7;  11  Am.  Rep.  7ol.     pp.  17,  37,  44,  47,  48,  50, 
251,  L'5;5,  3(14,  370,  478. 

Citfd  in  Boswcll  v.  State,  03  Ala.  321,  320  (1879)  ;  Moett  v.  People,  85  N.  Y. 
373  (1880);  People  u.  Waltz,  50  How.  Pr.  204  (1H74;;  People  «.  O'Coii- 
nell,  (12  How.  Pr.  230  (1881 ) ;  Wrijiht  v.  People,  4  Nel».  401t  (1870)  ;  Walker 
V.  People,  1  N.  V.  C'riiii.  Kep.  7  (1881);  Hawe  v.  State,  11  Neb.  537;  38 
Am.  Kep.  375  (1881)  ;  I'laniguu  v.  People,  80  N.  Y.  554. 

Flaiii'.xan  v.  People,  80  \.  V.  554.     p.  879. 

Cited  in  .State  v.  Kobinsou,  20  W.  Va.  7i;i  (1883). 

Ford  V.  State,  U\  Hep.  (;47.     p.  874. 

Fouts  V.  State,  4  G.  Greeue,  500.     pp.  37,  270. 

Francis  v.  State,  7  Tex.  (-Vpp.)  5()1.     p.  854. 

Frccinan   r.  People,  4   Denio,  9  (47   Am.   Dec.  21(i).     jip.  17,  38,  44,  75,  99,  234, 
240,  255,  27G,  322,  427,  479,  882,  910. 

Cited  in  State  v.  Joiie.'^,  50  N.  H.  309  (1871);  Flanagan  v.  People,  52  N.  Y. 
407  (11  Am.  Hep.  731)  (l873j  ;  State  r.  Redemeier,  71  Mo.  177  (1879): 
State  V.  Huthifi,  21  Mo.  404  (1855);  State  v.  Felter,  25  Iowa,  07  (1808): 
People  V.  Garbiitt,  17  Mich.  9  (1808);  Flouts  ».  State,  4  G.  Greene,  500 
(1854);  Guajiando  v.  State,  41  Tex.  626  (1874);  State  v.  Vanu,  84  N.  C 
722  (1881);  Cole's  Case,  7  Abb.  J'r.  (n.  .s.)  321  (1808);  Willis  v.  People, 
5  Park.  021  (1804)  ;  Willis  v.  People,  32  N.  Y.  715  ("1805)  ;  People  V.  Mont- 
gomery, 13  Abb.  Pr.  (x.  s.)  207  (1870) ;  U.  S.t).  Holmes,  1  Cliff,  98  (185S) : 
People  V.  MeCanu,  10  N.  Y.  58  (1857)  ;  Wrightr.  People,  4  Neb.  409  (1870) ; 
State  V.  Pike,  49  N.  H.  390  (1870);  Walker  v.  People,  1  N.  Y.  Crim.  Hep. 
7  (1881) ;  Hawe  v.  State,  11  Neb.  537,  33  Am.  Hep.  375  (1881) 

FrilliN  Case,  22  How.  St.  Tr.  307.     p.  889. 

Cited  in  F'reeman  r.  People,  4  Denio,  9  (1847). 

FMery  v.  People,  54  Barb.  319.     p.  732. 

Friery  v.  People,  2  Keyes,  424.     p.  732. 

* 

Gehrke  v.  State,  13  Tex.  508.     pp.  870,  871,  879. 

Cited  in  Thomas  v  State,  40  Tex.  00  (1874)  ;  Webb  v.  State,  5  Tex.  (.Vpp.) 
590  (1879). 

Gibsvju  V  Gibson,  9  Yerg.  329.     p.  508. 

Gibson  v.  Soper,  0  Graj',  279.     p.  313. 

Golden  v.  State,  25  Ga.  527.     pp.  727,  707. 
Cited  in  Estcs  r.  State,  55  Ga.  30  (1875). 

Gollihcr  V.  Com.,  2  Duv.  163.    p.  752. 

Goodwyn  v.  Goodwyn,  20  Ga.  000.    p.  543. 


(Iraham  v. 

Citi-d  I 
(l,so[ 

(187 

800 

t  ;raiit  v.  Til 

lirceuboroil 

(ireenley  v. 

(ini')er  r.  SI 

(luairando  i\ 

Guetig  ii.  Sll 
Cited  in 

(inetiir  I'.  St 
Cited  in 


^'1    llv'tin  V.  Sti 


Iluile  V.  Stal 

Cited  in 
(1858) 
401,  (: 
Ohio 
V.  Stal 

Hardy  v.  Me 

Hurt  V.  Peoi 

llatcli  V.  Sta 

Ilawe  V.  Peo 
Cited  in 

Huiddr.Thi 

Heath  v.  W( 

Heistcr  v,  L 

Ueury  r.  St£ 

Heuslee  v.  J 

Hewlett  V.  y 

Higgiubothi 

Holcomb  V. 

Ilolsiiibake 


TAIJLE    AM)    rONC01!DANCK    OF   CASES. 


XV 


i;r.ili;im  v.  Com.,  IC  11.  Mou.  587.    pp.  372,  373,  383,  489,  517,  GOO,  i!72. 

Cited  in  Kriil  r.  Com..  5  Bush,  3(;3  (18(;it)  ;  Smith  v.  Com.,1  Duv.  224. 
(18(i4);  Statu  v.  Fultur,  32  Iowa,  41)  (1871);  Urowu  v.  Com.,  14  Hu.'^h,  .".'.tS 
(187H);  Stiito  V.  Kiirtlett,  43  N.  11.  224  (1801);  Boswcll's  Case,  20  Gnitt. 
8G0  (1871);  Fonl  v.  State  (Ala.),  1(J  Kcp.  047  (1883). 

(Iraut  V.  Thompson,  4  Comi.203.     p.  7;t"J. 

(ireeuborough  v.  Uudcrhill,  12  Vt.  »;04.     p.  528. 

(ireonley  17.  State,  (;o  Iiul.  141.     p.  j27. 

(iruber  r.  State,  3  W.  Va.  C'J'J.     p.  {)12. 

(luaLraiulo  v.  State,  41  Tex.  (;2i;.     i).  V17. 

(iuotifj  i'.  State,  (',3  Ind.  278.     pp.  4j(;,  857,  8(17. 

Cited  in  Guetig  v.  State,  Ctl  lud.  'J4  (.•J2  Am.  Dec.  04)  (1379). 

(iuutii;  V.  State,  C,C,  lud.  94.     i)p.  455,  52);. 

Cited  in  Ford  v.  State  (Ala.),  Id  Rep.  ()47  (1883). 


Iliiixan  V.  State,  5  Baxt.  G15.     pp.  833,  8t;4. 

Ilaile  r.  State,  11  Humph.  15G.  pp.  573,  G08,  G55,  G59,  GG7,  6G9,  GOO,  704,  741,  754. 
Cited  in  Hopt  v.  People  104  U.  S.  131  (1882) ;  People  v.  Rogers,  18  N.  V.  "J 
(1858);  State  r.  Johnson,  40  Couu.  13G(1873);  Roberts  r.  People,  10  Mich. 
401,  (1870);  People  v.  Robinsoi),  2  Park.  235  (1855);  Nichols  v.  State,  8 
Ohio  St.  435  (1858);  Cartwriglit  w.  State,  8  Lea,  377  (1871);  Lancaster 
V.  State,  2  Lea,  675  (1879);  State  v.  Robinsou,  20  W.  Va.  713  (1882). 

Hardy  v.  Merrill,  5G  N.  IL  2G7.     p.  870. 

Hart  V.  People,  14  Neb.  375.     p.  874. 

Hatch  I).  State,  G  Tex.  (App.)  384.     p.  853. 

Hawe  V.  People,  11  Neb.  537  (38  Am.  Rep.  537).     pp.  16,  234,  527. 
Cited  in  Hart  v.  State,  14  Neb.  375  (1883). 

Ikald  r.  Thing,  45  Me.  392.     p.  95. 

ikath  V.  West,  28  N.  H.  101.     p.  313. 

Ihister  v.  Laird,  1  W.  &  S.  215.     p.  444. 

Heury  v.  State,  9  Tex.  (App.)  358.     p.  854. 

Ileuslee  v.  State,  3  Heisk.  202.    p.  759. 

Hewlett  V.  Wood,  55  N.  Y.  634.     p.  111. 

Higgiubotham  v.  State,  3  Tex.  (App.)  447.    p.  839. 

Holcomb  V.  State,  41  Tex.  125.     pp.  870,  879. 

Holscnbake  v.  State,  45  Ga.  57.     pp.  51G,  850,  869. 


M 


XVI 


r.MU.K    AM)    CONf'OUDANCK   OF    f'ASKS. 


Ilopps  V.  IVoplf,  ;;i  III.  ass.     pp.  17,  ;i7,  ;524,372,  411;,  44-t,4(;2,4Uy,  474,47;t,  52G, 

oil'.',  Stlo,  Slid. 

Citrdin  Kiiij?  v.  State,  H  Tex.  (App.)  5:A  (1880);  Clmso  r.  People,  40  111. 
3.'.2  (IKCi;);  State  v.  Feller,  ;{2  Iowa,  4!i  (1S71);  iVoplu  v.  (iarhiitt,  17 
Mieh.  Jt  (IHCH);  Straiuler  v.  State,  11  W .  Va.  745;  Statu  w.  Crawfonl,  11 
Kas.;:2  (187.'i);  BoswcH's  Case,  20  Gratt,  SdO  (1S71);  State  u.  Klliiiier,  4;i 
Mo.  127  (IHdM);  \Vriyht^>.  I'eople,  4  Neli.  409  (187t;);  Cuiinlnghain  v. 
State,  r.C  Miss.  2(;!»  (iU  Am.  Kep.  J'.f.O)  (187lt);  Uuwe  v.  State,  11  Neb. 
o'M;  ;ts  Am.  Kep-  :i75  (18«1). 

Ilopt  ?'.  People,  104  l'.  S.  (;;U,     pp.  (MU,  754. 

Citnl  in  Statf  i'.(irear,  20  Minn.  221  (1882);  State  r.  Hobinson,  20  W.  Va. 
7i;l  (1882). 

Howard  c.  State,  50  Ind.  I'.Ki.     j).  877. 

lluniplireys  v.  State,  45  Ga.  I'.tO.    pp.  232,  5U1. 

Insalis  r.  Slate,  48  Wis.  (147.     ]•.  712. 

.lohuson  r.  State,  1   Tex.  (App.)  HC.     pp.  G82,  815. 

Citrd  in  Wood  r.  State,  :U  Ark.  341,  3G  Am.  «ep.  13  (187'-). 

.lohuson  r.  State,  10  Tex.  (App.)  571.     pp.  532,  868. 
.loiies  r.  Com.,  75  Pa.  St.  403.     pj).  ({38,  (Ii!7,  754. 

Cited  in  Ilopt  v.  People,  104  C.  S.  131  (1882) ;  State  v.  Robinson,  20  W.  Va. 
713  (1882). 

.loues  r.  State,  13  Ala.  153.     pp.  91(>,  917. 

.lones  r.  State,  2!)  Ga.  (i07.    pp.  612,  754,  7(;7. 

Cited  in  Marshall  v.  State,  5!t  C.a.  154  (1877);  Estes  v.  State,  55  (ia.  30 
(1875). 

Jones  r.  State,  13  Tex.  (App.)  1.     ]>.  532. 

Kay  r.  State,  40  Tex.  20.    p.  853. 

Keeuan  v.  Com.,  44  Pa.  St.  55.     pp.  G08,  (;G7,  (i'JO,  715,  754. 

Cited  in  Ilopt  v.  People,  104  U.  S.  131  (1882);  State  r.  .loh  !"-.,  k'>  Conn. 
13r>,  (1873);  Kobertsv.  People,  19  Mich.  401  (1850);  oi  .  '  ^.jiuson, 
20  W.  Va.  713  (1882). 

Kelly  (".  Com.,  1  Grant.  484.     pp.  ()(!7,  754. 

Citedin  Ilopt  v.  People,  104  U.  S.  131  (1882);  State  r.  Kobiusou,  20  W.  Va 
713  (1882). 

Kelly  r.  State,  3  S.  &  M.  518.     pp.  630,  690,  704,  706,  727,  741. 

Cited  in  People  v.  Kogers,  18  N.  Y.  9  (1858) ;  Roberts  v.  People,  19  Mich. 
401  (1870);  People  v.  Robinson,  2  Park.  235  (1855);  Bartholomew  v. 
People,  104  111.  G05  (1882). 

Kenny  v.  People,  27  How.  Pr.202;  18  App.  Pr.  91.    p.  727. 


Ki  niiy  (' 

Cil< 
14 
P 

Kiufi  V. 
Citii 

(A 

Kin^rens 
Kiune  II 
Kirlanil 
Krlcl  r.  < 

Lake  x'.V 

Cited 

l.iuieastei 

Cited 

I.aiiersan 
I.aiiergan 
I.iuia;  V.  W 
Liiros  )'.  C 
Lawless  v. 
Lcvcfs  Ca 
Ley's  Ca.sc 
Cited  I 
Lindsay  v. 
Lincoln  v. 

LilUt;  V.  SI 

Lueffncr  u. 
Cited 
(188 
111  I 

Luoney  v. 

l.opoz  0.  S 

Lo/.a  I'.  St; 

Cited  i 

Lumpkin  v 

Lynch  v.  C 
Cited  \ 
141; 
411 


TAIILK    A\r)    COXroUDANCi:    OK    CASKS. 


XVII 


Kiiifi  «.  State,  II  'IVx.  (App.)  515.     j.p.  844,  HOH,  875. 

CUrain.lo\umm  v.  Stat..,  lOlVx.  (App.)  578  (1881);  WVhl,  ..  staf   -»  Tex 
(App.)  515  (1880);   Ki„.  ..  Stat,,  Hi  Te.x.   (App.)  L'8;5  (1882) 
..::^'  ('.  State,  i;!  Te.x.  (App.)  28:i.     p.  875. 
Kiii,L'eii.S7'.  State,  45  Iiid.  51.     p.  877. 
Kiiiiie  n.  Kiune,  0  Conn.  10l>.  ,  p.  7i(;). 
Xirhiiul  ('.  State,  4.'!  Ind.  140.     j).  877. 
iM'icI  r.  C(„n.,  5  Uu.sh.  ;!(;;!.     pp.  270,379,  517. 

Lake  ,:  People,  1  Park.  4!15.     pp.  '>?,h,  5;il,  8^7,  850,  800. 

Citrd  in  Wohh  V.  State,  !i  Tex.  (App.)  507  (1880). 
l.a.ieaster  v.  State,  2  Lea,  57<;.     ,,p.  (157,  658,  754. 

card  in  Cartwrlght  v.  State,  8  Lea,  ;]77  (1871) . 
I.auergan  y,  I'oople,  (!  Park.  200.     p.  7'>4. 
I.aiiergan  ?;.  People,  50  Uarb.  2(;(;.     p.  ;o4. 
I.ang  V.  Wkklen,  2N.  IL  4;}5.    p.  313. 
I-ai-os  V.  Coin.,  84  Pa.  St.  200.     j.p.  44;],  824,  85C,  858. 
l.awles.s  u.  State,  4  Lea,  1711.     j).  531. 
l-'vct's  Ca.se,  Cro.  Car.  438;   1  IJale,  42.     pj,.  2G5,  324. 
I.'.v's  Ca.se,  1  Lewin,  23'J.     pp.  88!»,  (UC. 

Cited  in  Freaman  v.  People,  5  Denio,  'j  (1847). 
l.i'Hisay  t;.  State,  1  Tex.  (App.)  327.     p.  854. 
''-:ii"oIn  V.  lJuckma.ster,  32  Vt.  052.     p.  313. 
!'"le  V.  State,  45  Ga.  57.     p.  232. 
;.' offner  ..  State,  10  Ohio  St.  508.     pp.  257.  370,  371,  372,  413,  432,  518,  8(5G 

1      mW^     r;         ,";.  ''  '""■"'  '•'  ^''''^'  ^''^^^  '■'  St'^t^'.Sl  Ohio  St 
111  (18(0);  State  y.  Klinger,  43  Mo.  127  (18G8). 

I-'^oney  r.  State,  10  Tex.  (App.)  520.     pp.  769,  781,  867. 

l.opcz  0.  State,  42  Tex.  208.    p.  854. 

Loza  V.  State,  1  Tex.  (App.)  488.     pp.  (182,  758. 

Cited  in  Wood  v.  State,  34  Ark.  341 ;  300  .\in.  Rep.  13  (1870), 
'umpkin  V.  WiUlams,  10  Ga.  5(10.     p.  542. 
Lynch  V.  Com.,  77  Pa.  St.  205.     pp.  146,  441,  443,  520,  854 

Cit^ul  in  King  «.  Com.,  0  Tex.  (App.)  558  (1880)  ;   My.Ts  ..  Con,.,  S3  Pa  Sf 

'nJ-lT    "■  ^''''"■'  ''  ^'"'  ^'-  '''  ^''''^  '  ^'-t^^-^'i"  ''■  C-'".  70  Pa.'  St.' 
^11   (10/ 5), 


XVI II 


TAIJLK    AM)    CONCORDANCE    OF    CASES. 


MacFarland's  Case,  h  Abb.  Pr.  (\.  s.)  57.    p.  285. 

Macounuhey  v.  State,  5  Oliio  St.  77.    |>.  751. 

Cited  in  Stato  v.  Uobiuson,  20  W.  Va.  713  (1882). 

Maher  v.  Puoplo,  10  .Mich.  i:'.2.     pp.  4G9,  C8'J. 

Marler  v.  State,  C7  Ala.  55.    p.  8(i(]. 

Marshall  v.  State,  59  Ga.  154.    p.  729. 
Marshall  v.  State,  40  Tex.  290.     p.  854. 
Martin's  Case.    p.  311. 
Martin  v.  State,  47  Ala.  5(;4.     pp.  579,  580. 
Mercer  v.  State,  17  Ga.  14f>.    p.  727. 

Cited  in  Estes  v.  State,  55  Ga.  30  (1875). 
Miles  V.  State,  1  Tex.  (App.)  510.     p.  854. 
Moett  V.  People,  85  N.  Y.  373.     pj).  253,  5;!1. 
Molton  V.  Cannoue,  2  W.  II.  &  G.  487.     p.  ;513. 
Mooney  v.  State,  33  Ala.  419.     pp.  G90,  758. 

Citnl  in  Uoljerts  v.  People,  19  Micli.  401   (1870)  ;  Ticlsvell  v.  State,  70  Ala   3," 

(1881). 

Morgan,  in  re,  7  Paige,  23(;.     p.  893. 

Myers  v.  Com.,  83  Pa.  St.  141.     pp.  444,  520. 

Cited inVunmll  r.  Com.,  8G  Pa.  St.  2G0  (1878) ;  Coyh-  v.  Com.,  p.  442. 
McAdam  v.  Walker,  1  Dow.  P.  C.  148.    p.  405. 
McAllister  v.  State,  17  Ala.  434.    pp.  95,  231,  3G7,  514,  799,  8G0,  879. 

Cited  in  Boswell  v.  State,  G3  Ala.  324  (1879) ;  State  v.  Felter,  25  Iowa   67 
(18G9)  ;  State  v.  Hays,  22  Lu.  Ann.  39  (1870) ;  Ford  r.  State  (Ala.),  IG  Kep 
(J47  (1883).  "  ^' 

AlcClackcy  v.  State,  5  Tex.  (App.)  320.     pp.  870,  879. 

McDouough's  Case.     p.  741. 

-McDougal  V.  State,  88  Ind.  24.    p.  875. 

.Alclntyre  v.  People,  38  111.  515.     p.  745. 

Cited  in  Rafferty  v.  People,  GG  111.  us  (1872). 

McKee  v.  People,  3G  N.  Y.  113.    p.  867. 

McKenzie  v.  State,  2G  Ark.  334.     pp.  370,  514,  533,  727. 

Cited  in  Boswell  v.  State,  G3  Ala.  32G  (1879) ;  Ford  v.  State  (Ala.),  IG  Rcd 
C47  (1883).  ^  ^' 

McLean  v.  State,  IG  Ala.  G72.     pp.  799,  8G0. 

Cited  in  McAllister  v.  State,  17  Ala.  434  (1850) ;  State  r.  Hays,  22  La   Ann 
39  (1870).  ■ 


TABLE    AND    CONCORDANCE    OF    CASES. 


XIX 


McNiiKlitun's  Case,  10  CI.  &  F.  200  (l  C.  &  K.  130,  8  Scott,  N.  R.  595).  pp.  :5S,  47, 
,);i,  •;!>,  70,  77,  78,  !i:>,  (111,  107,  150,  172,  221,  2U,  2(10,  .lOi),  ;t03,  310,  321,  324, 
33'.t,  3(;0,  3(i4,  377,  427,  454,  479,  48(1,  497,  523,  553,  GOO,  83(;,  837,  875,  891. 
Cited  in  Webb  v.  State,  9  Tex.  (App.)  500  (1880) ;  State  v.  Jone.s,  50  N.  11. 
309  (1871);  Fl:iiiai;:iii  r.  IVople,  52  N.  Y.  407  [11  Am.  Kej).  731];  State  )' 
Redeiueior,  71  .Mo.  177  (1879);  State  ??.  Iliitlng,  21  Mo.  404  (1855) :  ilos- 
well  V.  State,  03  Ala.  310,  320  (1879) ;  Westmoreland  v.  State,  45  (Ja.  225 
(1872);  State  r.  Mewlierter,  40  Iowa,  '>8  (1887);  Stater.  FeUer,  "5  Iowa, 
G7  (1808)  ;  Choice  r.  State,  31  Cia.  424  (1800) ;  (}raham  r.  Com.,  ;(i  \i.  Man. 
587  (1855);  Hoiifaiiti  r.  State,  3  Mluii.  123  (1858);  People  v.  MeCanii,  10, 
N.  Y.  58  (1857);  IIoi)ps  v.  People,  31  111.385  (1803);  Com.  ?;.  Farkin,  2 
Par.  Sel.Cas.  439,  2  Clark,  208  (1844) ;  Com.  v.  Fretli,  3  Phila.  105,  5  Clark, 
488  (1858);  Com.  r.  Wiunemore,  1  Brew.st.  350  (1807);  State  v.  Bi;rtlett, 
43  N.  II.  224  (1801)  ;  R.  v.  Layton,  4  Cox,  149  (1849)  ;  State  v.  Spencer,  21 
N.  J.  (L.)  190  (1840) ;  R.  r.  Ilaynes,  1  F.  &  F.  GOli  (1859) ;  People  v.  Coff- 
man,  24  Cal.  230  (1804);  U.  S.  v.  Ilolme.s,  1  Cliff.  98  (1858);  Sayres  »•. 
Com.  88  Pa.  St.  292  (1879)  ;  People  v.  McCann,3  Park.  272  (1857)  ;  Wria;ht 
V.  People,  4  'Wh.  409  (1870);  U.  S.  v.  (Juiteau,  10  Fed.  Rep.  101  (1882); 
State  V.  Pike,  49  N.  II.  399  (1870) ;  Freeman  v.  People,  4  Denio,  9  (1847) ; 
Walker  v.  People,  1  N.  Y.  Crim.  Rep.  7  (1881);  State  v.  Grear,  29  Aliuu. 
221  (1882) ;  Ford  v.  State  (Ala.),  10  Rep.  C47  (1883). 


Newcomb  v.  State,  37  Mis.s.  383.     pp.  233,  527. 
Newton  v.  Jackson,  23  Ala.  705.    p.  359. 
Xicliols  V.  State,  8  Ohio  St.  77.     pp.  607,  75s. 

Cited  in  State  v.  Robinson,  20  W.  Va.  713  (1882). 
Norrteet  v.  State,  4  Snecd,  345.    p.  757. 
Norton  v.  Moore,  3  Head,  480.     p.  508. 
Norwood  V.  Morrow,  4  Dev.  &B.  442.     p.  799. 


i 


O'Brien  v.  People,  48  Barb.  274.     pp.  529,  727,  748. 
O'Brien  v.  People,  30  N.  Y.  570.     pp.  270,  727. 

Cited  in  State  v.  Stickley,  41  la.  232  (1875). 
O'ConncU  v.  People,  87  N.  Y.  377.     pp.  52,  409,  531,  727. 

Cited  in  Walker  v.  People,  1  N.  Y.  Crim.  Rep.  20  (1881). 
o'Conuell  V.  State,  18  Tex.  343.    p.  854. 
0!?letree  v.  State,  28  Ala.  (i93.     pp.  402,  474,  489,  599,  089,  877. 

Cited  in  State  v.  Crawford,  11  Kas.  32  (1873) ;  Boswell's  Case,  20  Gratt.  800 
(1871);  Cunningham  v.  State,  50  Miss.  209  (31  Am.  Re|).  300)  (1879); 
State  V.  Bartlett,  43  N.  H.  224;  McDougal  v.  State,  88  Ind.  24  (1883). 

o'llirrin  v.  State,  14  Ind.  420.     p.  758. 

Cited  in  Dawson  v.  State,  IG  Ind.  428  (1801);  Fisher  v.  State,  04  Ind.  435 
(1878). 

Omby'sCase,  2  Str.  700;   Ld.  Ray.  1845.     p.  480. 


AX 


TABLK    AND    CONCOUDANCE    OF   CA8KH. 


Oi-twfiii  I-.  Coin.,  "C.  I'a.  St.  411.     pp.  WW,  488,  44:'.,  444,  ,J20,  H54. 

CitnUn  Kin«  r.  State,  1)  Tl-x.  (Apii.)  5o.s  (iH'io);  Uoswrll  v.  State,  <;;i  Ala. 
:!2(;  (187!i);  Hrown  c.  Com.,  7S  I'a.  St.  Vl'l  d^Tu");  Myers  «.  Com.,  8H  Pa. 
St.  Ill ;    '.amiell  r.  ('oni.,  8ii  i'a.  St.  L'tIO  (1H7H 

OHtraiii'ici  r.  People,  1.'8  lliiii,  I'.S.     p.  HM 

Ottawa  \\  (Jraliaiii,  l'h  111.  7;;.  p.  5l.'!i. 

Pauuoll  i\  Com.,  Ht;  I'a.  St.  l'i;o.     pp.  444,  520,  521. 

Citrd  in  State  v.  Groar,  2'.»  Miiiii.  l'l'1  (1881');  Coylo  r.  Coni..  p.  Hi'. 
Parker's  Case,  Coll.  on  Lim.  477.     i)p,  (.7,  l'.i7. 

Cilod  ill  State  r.  .loiies,  .JO  N.  II.  .'id!)  (1S71);  IJoberts  r.  Stale,  .'.  (ia.  ;510 
(1847). 

Patterson  c  Peoj)!!',  ji;  Harl).  i;l'5.     ]).  'H'l. 

Peck  r.  Slate,  I'.i  hid.  170.     |t.  4711. 

Pclamoiirges  ».  Clark,  !•  la.  IK),     pj).  '.t4,  111. 

Peuusylvauia  r.  McFall,  Add.  255.     pp.  045,  724,  7:50,  742,  758. 

Citpd  in  Moonoyr.  State,  S.l  Ala.  41!)  (185!t);  State  v.  Bullock,  l.i  Ala.  41H 
(1848);  State  (».  McCauts,  1  Siieurs,  393  (1843);  Swan  v.  State,  4  Humph 
130  (1843). 

People  P.  All  Vlug,  42  Cal.  18.     ]).  !I17. 

People  ('.  BattiniJ:,  4;»  IIow.  Pr.  3;)2.     p.  7.j5. 

People  i\  Belencia,  21  Cal.  544.     pp.  (1(;7,  ti!)0,  754. 

Cited  in  llopt  v.  People,  104  U.  S.  O:!!  (1882);  People  v.  King,  27  Cal.  .'.07 
(1805);  People  v.  Williams,  43  Cal.  344  (1872);  Boberts  v.  ],'e0|»le,  I'.i 
Mich.  401  (1870)  ;  State  v.  Hohinsoii,  20  W.  Va.  713  (1882). 

i'eople  r.  Bell,  4'.)  Cal.  485.     p.  515. 

Citrd  ill  State  r.  Grear,  2',i  .Minn.  22!  (1882). 
People  r.  Best,  ;!il  Cal.  OHO.     p.  231. 
People  V.  Buml)er;j:er,  45  Cal.  (120.     p.  807. 
I'eople  V.  Carnel,  2  Kdiii.  Sel.  Cas.  200.     p.  875. 
I'eople  y.  Cavaiiaufili,  02  IIow.  Pr.  187.     p.  2  ".4. 
I'eople  I'.  Clark,  3  Seld.  ;!85.     ]).  033. 
People  D.Corfman,  24  Cal.  220.     pp.  231,  514. 

Citnlin  People  v.  Best.  30  Cal.  C'-tO  (1870);  People  u.  Wilson,  4;>  Cal.  13 
(1874). 

People  I).  Coleman,  1  N.  Y.  Criiii.  Hep.  1.     ]>.  254. 

People  V.  Cummins,  47  Mich.  334.     pp.  (»95,  727. 

People  c.  Dennis,  31)  Cal.  025.     p.  S(>7. 

People  V.  Devine,  1  Edm.  Sel.  Cas.  5'.U.     \t.  234. 

People  0.  Eastwood,  4  Kern,  3'J2.     p.  747. 


TAULK    AM)    COXCOKDANCK   OF    CASKS. 


X.\l 


I'l'oplo  V.  Farrt'll,  ;U  Cal.  570.    i.p.  »00,  '.'lii. 

I'copli'  ('.  Fliiluy,  :{8  Mich.  481.'.     pp.  UO,  lilW,  ;io:i,  oJ7. 

I'foplf  V.  Francis,  ;;s  r:il.  18.!.    j).  H63. 

Pfoplf  V.  Fuller,  'i  Park.  Kl.     i).  TS.K 

IVoplo  ?>.  Garbutt,  17  Mii'li.  !>.  pp.  ;'.7;i,  t<;L',  4({.'J,  47'.t,  .•)L'7,  i;'."!!,  i;ii!),  ;.'7,  sni, 
877. 
Cited  in  King  v.  State,  !)  Tex.  (.*. ,  p.)  554  (18S0);  Stiite  r.  Iloyi,  47  Conn.  .-,!*< 
(1880);  State  i;.  Felter,  ;i2  lowii,  <'.)  (1.^71  j;  St.ite  r.  Crawford,  II  Kas  :;j 
(187:5);  State  r.  Welch,  lil  Minn.  IJ  (M74j;  Wriglit  y.  I'eopl.',  4  Sr\>.  4M't 
(187(;);  State  v.  I'aulk,  18  S.  C.  51  ■.  (I88i'j;  Ford  r.  State  (Ala.),  1  iJ  Hep. 
047  (1888);  McDouical  v.  State,  8;i  Ind.  L'4  (188;;;. 

IVople  r.  Griflln,  1  Kdm.  Sel.  Ca.s.  IL'C.     p.  l';]4. 

People  V.  Ilammill,  '2  I'ark.  223.    pp.  407,  50i>,  030,  Olio,  "00. 

Citfd  in  Kenny  t'.  People,  31  N.  V.  330  (1805) ;  People  i».  Itouers,  18  N.  V.  '.' 
(1858) ;  People  v.  Garbutt,  17  Mieli.  !i  (\»t\H) ;  Koberts  f.  Peoi)h',  I'.i  Mlcli. 
41)1   (1870). 

People  V.  Harris,  2\)  Cal.  (178.     pp.  O'J'J,  701,  75'.t. 
Cited  in  State  v.  Welch,  L'l  Minn.  '-'2  (1874;. 

People  y.  Ilobson,  17  Cal.  4U4.     pi).  281,  251. 

People  V.  Iloon,  10  Cent.  L.  .J.  57.     p.  231. 

IVople  V.  Huntington,     pi).  322,  405. 

I' 'oplc  V.  Jones,  2  Edm.  Sel.  Cas.  88.     p.  745. 

l'>(>ple  V.  King,  27  Cal.  507.     j)p.  705,  754. 

Citeitin  People  v.  Williams,  43  Cal.  ,i44  (1872). 

I'r  )ple  V.  Kirby,  2  Park.  28.     p.  51;;. 

IVople  V.  lOcim,  Kdm.  Sel.  Cas.  13.     pp.  26,  75,  OM. 

Criticised  in  Cholcii  v.  State,  31  Ga.  424  (18(;0). 
People  V.  Lake,  2  I'iiwk.  215.     p.  238. 
People  V.  Lake,  12  N.  Y.  358.     pp.  238,  850. 
Peoi)le  V.  Lewis,  30  Cal.  531.     pp.  744,  754. 

Cited  in  State  v.  Thonip.son,  12  Nev.  140  (1877). 
IVople  V.  -March,  0  Cal.  543.     p.  800. 

rcjople  I'.  Mcssersmith,  57  Cal.  575.     p.  514. 

Cited  in  Ford  v.  State  (Ala.)  10  Rep.  047  (1883). 
PeopU'  r.  Mes.sersmith,  01  Cal.  247.     p.  510. 
IVople  V.  Milgate,  5  Cal.  127.    p.  481). 
People  V.  Moett,  23  Hun,  GO.     p.  253. 
People  r.  Moice,  15  Cal.  829.    p.  878. 


XXll 


TAHI.K    AND    CONCOKUANCE   OF    CASKS. 


I'copli'  i».  M»mti.'<>iiu'ry,  1".  A1>1».  I'r.  (n.  s.)  207.    |..  244. 

Cited  ill  lVoi>lc  u.  O'Conuell,  tlL'  How.  I'r.  4;it5  (1881). 

People  V.  Myers,  'JO  Ciil.  61H.     pp.  ;?72,  014,  fi'.tO. 

Citfil  in  I'eoj)!*'  v.  .MosstTsmllli,  57  Cal.  .■■)7:.;  Stiite  ».  Fflter,  ,12  Iowa,  4!t 
(1H71);  Struiidor  v.  State,  11  W.  Va.  7»:);  Mo.swell's  Case,  2ti  (iratt  8G0 
(1871)  ;   People  v.  Coffamn,  24  Cal.  2;i"J  (18(;4). 

Peoplf  r.  MeCaiin,  16  N.  Y.  C8.     pp.  8i»,  47,  ".2,  ;;72,  412,  401,  4(52,  HW),  470,  474, 
48'J,  400,  Ml,  WJ. 

Citrd  in  Flaimgaii  r.  l»eople,  52  N.  Y.  4<;7  (11  Am.  Uep.  7:il) ;  State  v.  Foltor, 
;{2  Iowa,  4;»  (1871) ;  l'eoi)lo  V.  Grtrbutt,  17  Mieli.  It  (18(;8);  in^lk  v.  State, 
lit  liid.  170  (1H(;2);  Patterson  r.  People,  4ti  Harli.  );2o  (18(1(1);  llopps  <?. 
People,  ;tl  111.  ;i8,-,  (18(!;5);  Straiuler  c.  State,  11  W.Va.74:>;  Slate  r.  IJart- 
k'lt,  4a  N.  II.  224  (1801) ;  State  v.  Crawfonl,  11  Kas.  :!2  (1873) ;  BoswcH's 
Case,  20  (iratt.  8C.0  (1871);  People  ?-.  Coffiiiaii,  24  Cal.2.^0  (1864);  Stater. 
K linger,  4 ;{  Mo.  127  (18(;8);  Ciiniiliifiliam  ?-.  State,  5(1  .Miss.  2(;ii,  31  Am. 
Rep.  3ii0  (187!t) ;  Walker  v.  People,  1  N.  Y.  Crim.  Uep.  7  (1881). 

People  V.  McCanu,  3  Park.  272.     jip.  372,  631 . 

Citrd  m  Kliitf  ".  State,  y  Tex.  (App.)  554  (1880) ;  Uonfantl  v.  State,  ?  Minn. 
123  (1858). 

People  )'.  McDoimeil,  47  Cal.  134.     i)p.  231,  3(J4,  ;;70,  514. 

Cited  in  lloswell  v.  State,  C3  Ala.  321  (187'.t)- 

People  V.  Nichol,  34  Cal.  212.     p.  754. 

People  V.  O'Coiinell,  62  How.  Pr.  43t;.     )..  727. 

People  r.  Odell,  1  Dakota,  l!t7.     p.  751. 

People  V.  Olwcll,  28  Cal.  45(;.     p.  8(1(;. 

People  r.  Pine,  2  Barb.  5(JG.    pp.  37,  234. 

Citi'd  in  Fonts  v.  State,  4  G.  Greene,  500  (1854);  Willis  v.  P^'ople,  5  Park 
621  (1864). 

People  r.  Porter,  2  Park.  14.    p.  744. 
People  «.  Kobinson,  1  Park.  i;4;i.     p.  733. 

Cited  in  State  v.  Iloyt,  47  Conn.  418  (1880);  Kenny  v.  People,  31  X.  Y.  330 
(1865);  People  c.  Rogers,  18  X.  Y.  'J  (1858). 

Pcoi)le  0.  Robinson,  2  Park.  235.     pp.  569,  630,  66!),  6i)0,  7.39. 

Cited  in  Roberts  v.  People,  ID  Jlicli.  401  (1870) ;  Nichols  v.  State,  8  Ohio  St. 
435  (1858). 

People  V.  Rogers,  18  N.  Y.  ;•.  pp.  566,  5(;7,  569,  580,  624,  661,  666,  727,  732,  733, 
755. 
Cited  in  Hopt  v.  People,  104  U,  S.  631  (1882) ;  Kenny  v.  People,  31  N.  Y.  330 
(1865)  ;  Cluck  v.  State,  40  Ind.  263  (1872)  ;  Triery  v.  People,  54  Barb.  31!) 
(1865)  ;  People  v.  Odell,  1  Dakota,  197  (1875)  ;  People  v.  Batting,  49  How. 
Pr.  392  (1875)  ;  State  v.  Tatro,  50  Vt.  483  (1878)  ;  Lanergan  v.  People,  50 
B.irb.  266  (1867)  ;  State  v.  Grear,  29  Minn.  221  (1882) ;  State  v.  Robinson, 
20  W.  Va.  71,3  (1882). 


TAHLK    AND    CONCOUDANCK   OF    (  ASK8. 


Will 


I'lnplc  r.  |{ii>s,  L'  Kdiii.  }*t'I.  Ciis.  4l.'M.     p.  S7,-,. 

I'.  o|)U;  V.  Siiuclit'Z,  18  How.  I'r.  71'.     |).  80". 

I'toplc  V.  Scliryvor,  4l'  N.  Y.  1.     p|».  ;i'.»,  511. 

I'.oplu  V.  Scott,  t;  Mitli.  li'.it;.     p.  CM'.t. 

I'.oplo  tj.  Scott,  51)  C'al.  ;J41.     p.  '.tl«. 

IVoplc  V.  Sinltli,  31  Cal.  UW,      p.  HtU. 

I'.ople  V.  Smith,  67  Cal.  l:Ji).     p.  «t!l. 

I'cople  V.  Sprauuo,  l'  I'ark.  43.     p.  770. 

1'.  oplu  V.  Sullivan,  3  Scld.  3!m;.     p.  033. 

\',o\)U-  V.  Thurston,  2  I'ark.  4'.i.     pp.  83(;,  837,  H7".t. 

Cited  in  Wobb  v.  State,  t)  IVx.  (Ai)p.)  605,  507  (1880). 
I'coplc  V.  Trlpler,  1  Wheeler,  48.     p.  805. 
I'fople  V.  Vane,  12  Wcuil.  78.     p.  44t;. 
I'.ople  V.  Waltz,  50  How.  Pr.  204,    j).  248. 
I'cople  r.  WiUey,  2  Park.  1!).     j).  744. 
I'topk-  r.  Williams,  43  Cal.  344.     pp.  Otw,  727,  744,  764. 

Citrd  in  Hopt  i\  People,  104  U.  S.  (!31  (1882)  ;  State  v.  Thompson,  12  Nev.  410 
(1»77);  State  0.  Kobiuson,  20  W.  Va.  713  (1882). 

IVople  ('.  Wilson,  4'J  Cal.  13.     pp.  514,  515. 

Cited  ill  People  v.  Wreden,  51)  Cal.  341  (1881). 

IVople  I'.  Wreilen,  51)  Cal.  341.     pp.  515,  8(51. 

Pienovi'.s  Case,  3  City  Hall  Kee.  123.     \).  850. 

Pierce  1-.  State,  53  Ga.  3<J5.     p.  801. 

Pierce  r.  .State,  13  N.  H.  630.     p.  3111. 

Piersou  V.  State,  12  Ala.  1411.     p.  578. 

Pius,'  V.  State,  43  Tex.  108.     p.  871). 

i'i£t;nan  n.  State,  14  Ohio,  555.    pp.  008,  007,  008,  OHO,  0112,  0I)!>,  704,  720,  742,  758, 


Cited  in  Hopt  v.  People,  104  U.  S.  031  (1882) ;  Moouey  v.  State,  33  Ala.  410 
(1851»)  ;  State  v.  Johnson,  40  Conn.  130  (1873) ;  State  v.  Garvey,  11  Miun. 
154  (1800)  ;  Loza  v.  State,  1  Tex  (App.)  488  (1877)  ;  Koberts  v.  People,  lit 
Mich.  401  (1870);  People  v.  Hobinsou,  2  Park.  235  (1855);  Nieiiols  r. 
State,  8  Ohio  St.  435  (1858)  ;  State  v.  Welcli,  21  Minn.  22  (1874)  ;  Bartholo- 
mew V.  People,  104  HI.  005  (1882)  ;  State  v.  Kobinson,  20  W.  Va.  713 
(1882). 

Piitle  V.  State,  9  Humph.  C03.     pp.  407,  574,  570,  51)5,  021,  022,  645,  050,  059,  007, 
oOit,  090,  098,  704,  742,  754,  757,  758. 

Cited  in  Hopt  r.  People,  104  U.  S.  031  (1882) ;  Mooney  v.  State,  33  Ala.  419 
(1959) ;  State  v.  Cross,  27  Mo.  335  (1858) ;  People  v.  Beleucia,  21  Cal.  544 


XXIV 


TABLE   AM)    CONCORDANCE    OF   CASES. 


Pirtlo  r.  State  —  Continued. 

(18C;5)  ;  lV()i>le  v.  Hoffors,  18  N.  Y.  !)  (1858) ;  People  v.  Garbutt,  17  Mich.  !• 
(18GS)  ;  Nortlcet  r.  Stati-,  4  Snei'd,  34  J  (1857)  ;  Hi)l)iTts  v.  Pe()i)Io,  I'J  Midi. 
401  (1870);  Pooplo  v.  Kohiuson,  2  Parle.  2;55  (1855);  Nichols  v.  State,  8 
Ohio  St.  4;55  (1858);  Cartwriirht  v.  Stato,  8  Lea,  ."77  (1871);  Bo.swellV 
Case,  20  Gratt.  SCO  (1S71) ;  Ilaih-  r.  State,  1 1  Huinpii.  1,^4  (1850) ;  State  r. 
Welch,  21  Minn.  22  (1S74);  Tiiiwell  r.  State,  70  Ala.  38  (1881);  State  r. 
Ro))Iuson,  20  W.  Va.  (;47  (1^82). 

Polk  ?'.  State,  l!"  Ind.  170.     pp.  ;;73,  451,  402,  474,  520,  590,  877. 

Cited  in  Kini;  r.  State,  !i  Tex.  (.\pp.)  554  (1880)  ;  State  v.  Felter,  32  Iowa,  4'.i 
(1871);  IIopp.s  ?'.  People,  ;U  III.  o85  (18i;;i);  Straiider  r.  State,  11  W.  Va. 
745;  State  v.  Crawford,  11  Kas.  32  (187;'.):  Boswell's  Case,  20  Gratt.  S^n 
(1871);  Ciinniniihani  r.  State,  5"!  Miss.  2i;;t  (iU  Am.  Hep.  liOii)  (187'.') :  Mc- 
Douii-al  V.  State,  88  Ind.  24  (188.".). 

Pollard  V.  State,  53  Miss.  410.    p.  471. 

Potts  V.  House,  (!  Ga.  324.     p.  54".. 

Powell  V.  State,  37  Tex.  348.     p.  si;:. 

Prescott's  Case.     p.  7('.. 

Pugh  V.  State,  2  Tex.  (App.)  5"i'.i.     j).  S54. 


i{. 

■.  Cv\ 

Vile 

40 

Ci 

i;. 

)•.  Cul 

K. 

)•   '  'a\ 

it. 

r.  I)a> 

1{. 

i\  Dix 

i;. 

r.  Dul 

1!. 

V.  Dw 

R.  r.  Allunt.     pp.  31),  252. 

li.  r.  Barton,  3  Cox  C.  C.275.     p.  ±11. 

Cited  in  U.  S.  r.  Holmes,  1  Cliff.  '.i6  (1858). 

R.  V.  Bleasdale,  2  C.  &  K.  7r.5.     p.  ;'.7. 

R.  r.  Bowler.  Coll.  on  Lun.  073.     pp.  2r.i,  311,  553. 

Cited  in  Choice  v.  State,  31  Ga.  424  (1803) ;  State  i-.  Jones,  50  X.  H.  .'.O'.t 
(1871). 

R.  V.  Briscey,  1  Ben.  >)t  II.  L.  Cas.     p.  311 . 

R.  v.  Bimlett,  4  B.  &  Aid.  120.     p.  52!l. 

R.  ('.  Burrow,  1  Lew.  C.  C.  75.     pi).  508,  Mo,  021),  071,  740,  74S. 

Cited  in  Kenny  r.  People,  31  N.  Y.  330  (1805) ;  People  r.  Rogers,  18  N.  Y   ;> 
(1858)  ;  People  v.  R()l)iiis(.n,  2  I'ark.  235  (1855) ;  Bn^well's  Case,  20  (ii  ati 
800  (1871):  State  r.  Tatro,  50  Vt.  483  (1878):  State  r.  Robinson,  20  \V. 
Va.  713  (1882). 

R.  )-.  Burton,  3  F.  &  F.  772.     i)p.  310,  324. 

R.  v.  Carroll,  i  C.  &  P.  145.     pp.  508,  021,  020,  031,  048,  "24,  742,  758,  780. 

Cited  in  State  r.  Cross,  27  Mo.  335  (1858) ;  Kenny  v.  People,  31  N.  i .  330 
(1805);  People  r.  Rogers,  18  N.  Y.  '.»  (1858);  State?;.  McCants,  1  Spear.s, 
303  (1843);  State  t\  John,  8  Ircd.  (L.)  330  (1S4S^:  State  r.  Avery,  44  X. 
II.  302  (1802);  IVople  i'.  Robinson,  2  Park.  235  (1855) ;  Pirtle  v.  State,  0 
Humph.  003  (1840). 


JABLK    AM)    COXCOHDAXCE    OF   CASES. 


XX  \ 


!.  r.  Cruis..,  HV.&  p.  54(;.     pp.  ,]8<l,  (J;i,),  704,  742,  7.18,  705. 

''4m  a^'p^'T'^/ '.''""'■ '''  ('^'"^>=  ^^"^--^^  -J'-pio,  l^  Mich. 

i.  '••  Cullender, (J  How.  St.  Tr.  700.     j..  .U;,. 

!.'■   '•^vies,lJ^.&F..ii);3C.&K.;J28;  C  Cox  C.  C.  ;J2(;.     pp.  223,  l.iy. 

:.  '•.  Davis,  14  Cox,  oO.}.     p.  874. 

:.  r.  Dixon,  II  Cox,  241.     j).  74!i. 

:.  '•.  Duflln,  K.  &  r.  ;^(;4.     p.  08!). 

.  V.  Dwerryhousc,  2  Cox  C.  C.  44(i.     p.  did. 

■  '••  Dy.son,  7  C.  &  P.  305.     pp.  888,  III8. 

''»',.':.  4  o»v,."""'-" '  •"'"""  ^'■' '''  ^''''""'  "■■'•■'■■"'"'■  '■■'■-'■'«.* 

/•.  Francis,  4  Cox  C,  C.  07.    j).  87!i. 
. '•.  (iamlen,  1  K.  &  F.  !iO.    p.  767, 

■  '■•  (lOOflc,  7  Ad.  &  El.  -.;;(;.    pp.  sso,  91, s. 

Cited  in  Freeman  v.  People,  4  Denio,  ',)  (1847). 
c.  (loodier.    p.  7(;7. 

'•■  (irindley,  1  Ru.ss.  on  Cr.  12.     pp.  ,;21.  029,  C48,  049,  C.;i,  724,  742,  757,  758 
Cited  in  State  .'.Cross,  27  Mo.  335  (1858);  People  r.  IJo-^ers    18  N   Y   9 

^n^,Ti:f'''T' ' '''''''''''  o843)/pirt,e..i;t;^;,'o  1;, 

3  (1849)  ;  State  ..  Tatro,  50  Vt.  483  (1878)  ;  R.  ..  Carroll,  1  C.  &  P.    45 
(I800) ;  Swan  V.  State,  4  Humph.  13(i  (1843) . 


R. 


201,  220, 


ii 


;••  Iladfleld,  27  How.  St.  Tr.  1282.     pp.  37,  GO,  07,  70,  84,  197,  198 
■I'S  ;U4,  31C,  339,  3G2,  448,  474,  551,  552,  .!72,  073,  sill  ' 

""•V^O  ri8?rs^' f°"i  '',''•  "•  '''  ^''''^  '  ^''^^^•^''  -  State,  03  Ala.  319 
I  O       '  Vn  n^'p  r    :"■'  V"-  ^''"'-^  '''  ^'"'^^-^  ^''---  State, 

1I3  ori8r;^SM^^^^^^^^^^^  ^''■^')'  "0PP«  «•  People, 

..1  111.380  (18(,.{);  State  ?;.  Spencer,  21  N.J.  (L.)  i-hj  (184(1)  •  State  t-  PI-.. 

(18<9) ;  R.  V.  Oxford,  9  C.  &  P.  525  (1840). 

'■•  Haynes,  1  F.  &.  F.  (JOG.    pp.  48,  309. 

Citrd  in  People  r.  Waltz,  50  How.  Pr.  204  (1874) :   Walker  v.  People,  1    V    V 
Crnn.  Rep.  7  (1881).  '     '  '•''■>■ 

*•.  Iligiiinson,  1  C.  &  K.  129.     pp.  08,  220,  480,  7!l0. 

(IKl.)  512(l8ol);  State  ^,.  John,  8  Hed.   (L.)  330  (1848);   State  v    H-.r, 
lett,  43  N.  H.  224  (1801) ;  Ford  ..  State  (Ala.),  10  Rep.  047  C^3) 

''•  Hodges,  8  C.  &  P.  195.     p.  918. 

'■•  Holt,  7  C.  .M:  P.  518.     p.  089. 

0.  Israel,  2  Cox,  203.     p.  9 Hi. 


XXVI 


TABLE   AND    CONCOUDANCE    OF   CASES. 


H.  V.  Jones,  1  Leach,  120.  p.  1)18. 
H.  V.  Jones,  9  C.  &  P.  208.  p.  (189. 
U.  V.  Law,  2  F.  &  F.  83(;.    p.  226. 

U.  r.  Layton,  4  Cox  C.  C.  140.     p.  522. 

C'j>d  t«  U.  S.  V.  Holmes,  1  Cliff.  08  (1858)  ;  State  u.  Grear,  21)  Minn.  221 
(1882). 

n.  V.  Leigh,  4  F.  &  F.  015.     p.  749. 

H.  0.  Marshall,  1  Lewiu   C.  C.  70.     pp.  742,  7i;7. 

R.  V.  Mfiuro.     p.  207. 

Citei  iti  R.  v.  lladfleld,  27  How.  St.  Tr.  2782. 

R.  V.  Meakin,  7  C.  &  P.  297.     pp.  030,  031,  035,  001,  704,  725,  740,  742,  704,  788. 
Citf'd  in  People  v.  Rogers,  18  N.  Y.  9  (1858);  State  v.  McCants,  1  Spears, 
303  (1843);  State  v.  John,  8  Ired.  (L.)  330  (1848);  State  v.  Avery,  44  N. 
H.  302  (18<!2)  ;  People  v.  Robinson,  2  Park.  235  (1855)  ;  State  v.  Tatro,  60 
Vt.  483  (1878). 

R.  V.  Monkhonse,  4  Cox,  55.    p.  763. 

R.  r.  Moore,  3  C.  &  K.  310;  10  Jur.  750.     pp.  000,  704,  742,  705. 

Cited  in  Roberts  v.  People,  19  Mich.  401  (1870)  ;  People  v.  Robinson,  2  Park. 
235  (1855). 

R.  c.  Offord,  5  C.  &  P.  108.     pp.  08,  107,  219,  235,  240,  250,  427,  480,  553. 

Cited  in  State  v.  Jones,  50  N.  II.  300  (1871)  ;  State  v.  Redemeier,  71  Mo.  177 
(1870);  State  v.  Windsor,  5  Harr.  (Del.)  512  (1851);  Choice  v.  State,  31 
Ga.  424  (1800)  ;  Roberts  v.  State,  3  Ga.  310  (1847)  ;  State  v.  Bartlett,  43 
N.  II.  224  (1801)  ;  R.  v.  Townley,  3  F.  &  F.  839  (1802)  ;  People  v.  Waltz, 
50  How.  Pr.  204  (1874) ;  People  v.  Pine,  2  Barb.  5(i6  (1848) ;  People  v. 
Montgomery,  13  Abb.  Pr,  (U.  S.)  207  (1870) ;  U.  S.  v.  Holmes,  1  Cliff.  98 
(1858). 

R.  -■.  Oliver,     p.  214. 

Cited  in  R.  v.  Hadfleld,  27  How.  St.  Tr.  1282. 
R.  V.  (jxford,  9  C.  &  P.  525.  pp.  08,  00,  74,  90,  142,  219,  225,  320,  345,  454,  891. 
Cited  in  State  v.  Jones,  50  N.  H.  309  (1871);  State  v.  Felter,  25  Iowa,  07 
(1808);  IIopps  u.  People,  31  111.  385  (1803);  People  v.  Finley,  38  Mich. 
482  (1878)  ;  State  v.  Spencer,  21  N.  J.  (L.)  106  (1840)  ;  R.  v.  Townley,  ;'. 
F.  &  F.  839  (1802)  ;  U.  S.  v.  Holmes,  1  Cliff.  08  (1858)  ;  State  v.  Pike,  49  N. 
H.  309  (1870) ;  Freeman  v.  People,  4  Deuio,  8  (1847) . 

I{.  r.  Pate.     pp.  311,  321. 

Cited  in  State  v.  Pike,  40  N.  II.  300  (1870). 
K.  r.  Patrick,  7  C.  &  P.  145.     p.  740. 
]{.  r.  Poarce,  0  C.  &  P.  007. 
R.  '•.  Pearson,  2  Lewin,  144. 

R.  r.  Pritchard,  7  C.  &  P.  303.    pp.  889,  919. 

C:frd  in  State  v.  Harris,  8  Jones   (L.)  137  (1800)  ;  Freeman  «.  People,   4 
Denio,  9  (1847). 


TABLE   AND    CONCORDANCE   OF   CASES. 


XXVU 


H 

n 
\i 

H, 
R, 

K. 


li 


V.  RadclifEc,  1  W.  Bl.  3.     p.  nso. 

1-.  Rennle,  1  Lewin,  7G.    pp.  740,  748. 

c.  Richards,  1  F.  &  F.  87.    p.  224. 

V.  Richards,  5  C.  &  P.  318.    p.  C,27. 

V.  Rosser,  7  C.  &  P.  048.     p.  529. 

V.  Ryan,  2  M.  &  R.  213.     p.  (i8!). 

V.  Searlc,  1  M.  &  R.  75.    pp.  21,  879. 

C<Y«?m  Wobb  V.  State,  9  Tex.  (App.)  50.J  (1880) ;  R.  ,;.  Wrmiit.  Russ.  &  Ry. 
4do  (1821) ;  Dejarnotte  v.  Com.,  75  Va.  8G7  (1881 ;. 
V.  Smith,    p.  553. 
Citedin  Choice  v.  State,  31  Ga.  424  (1800) . 
:.  V.  Southey,  4  F.  &  F.  04.     pp.  227,  918. 
:.  c.  Stedman,  Fost.  292.    p.  298. 

Citedin  Com.  v.  Moslcr,  4  Pa.  St.  204  (1840). 
)'.  Steel,  1  Leach,  507.    p.  918. 
'•.  Stokes,  3  C.  &  K.  185.    pp.  09,  407,  524,  599. 
Cit^  instate  v.  Joues,  50  N,  H.  309  (1871)  ;  People  v.  Garbutt,  17  Mich.  9 

«7?   '  f^^'^'^'V-  ^'■''''''  11  W.  Va.  745.    Boswell's  Case,  20  Gratt.  80,) 
(1871) ;  U.  S.  V.  Holmes,  1  Cliff.  98  (1858). 

i:  Taylor,  4  Cox  C.  C.  155.    pp.  407, 408,  599. 
Cited  in  People  v.  Garbutt,  17  Mich.  9  (1808)  ;  Straiuler  v.  State,  11  w  Vi 
745;  Boswell's  Case,  20  Gratt.  800  (1871). 

.V  Thomas,  7  C.  &  P.  817.     pp.  595,  022,  630,  031,  033,  035,  030,  704,  726,  740 
<4l.',  703,  700,  707,  788.  '         ' 

Citedin  State  ^•.  Cross.  27  Mo.  330  (1858);  Rafferty  ^.  People,  00  III   118 

•If  ?«i.?''Sl'r  ^T^'  ''  ^-  ^'-  '  ^''''^  '  ^''''  "•  ^^^Cants,  1  Spears, 
oJ3  (1843)  ;  State  v.  John,  8  Ired.  (L.)  330  (1848)  ;  State  v.  Avery,  44  N 

1.392  (1802);  People  v.  Robinson,  2  Park.  235  (1855);  Boswell's  Case, 
-0  Gratt,  800  (1871) ;   State  v.  Robinson,  20  W.  Va.  713  (1882). 
'••  Thomas,  1  East  P.  C.  417.    p.  089. 
>■.  ToAvnley,  3  F.  &  F.  839.    pp.  224,  251,  314,  321,  324. 

'1f  3^7l87o'  "■  ^^''"''  "^  ^'''^'  ^'"   "^*    ^^^"^^'   ^'^''^'  "•  ^''''"""'  ^•'  ^^^■ 
'■.  Turton,  0  Cox  C.  C.  385.     p.  522. 
■>:■  Vaiighan,  1  Cox  C.  C.  80.    p.  221. 

Cited  in  U.  S.  v.  Holmes,  1  Cliff.  98  (1858). 
»••  Vyse,  3F.  &  F.  247.     p.  78;l. 
»••  Whitflold,  3  C.  &  K.  121.     p.  -Jia. 
'•■  Wright,  R.  &  R.  450.    pp.  20,  879. 

Cited  in  Dejaruette  v.  Com,,  75  Va.  807  (1881) 


XX  VI 11 


TABLE   AND   CONCOKDANCE   OF   CASES, 


RafEcrty  v.  Pcoi)le,  GC  111.  118.     pp.  7-'7,  :,■■)«. 
liL'ul  /'.  i\'Oplo,  i'J  N.  Y.  1'70.     pp.  Ill,  75.2. 

Cited  ill  State  v.  Sticklcy,  41  la.  232  (1.S75). 
UcnigcT  V.  Fogos.sa,  Plowd.  1!).     pp.  58(;,  <;28,  (UO. 

Cttedin  Cornwcll  v.  State,  Mart.  &  Vcg.  147  (1827). 

Rospuhllca  ?>.  Woitlle,  2  Dall.  88.     p.  728. 

Reynolds  v.  U.  S.  08  U.  S.  145.     p.  177. 

Richardson  v.  State,  7  Tex.  (App.)  4«(;.     p.  854. 

Ifoberts  v.  People,  10  Mich.  401.     pp.  (i08,  687,  fi!)8,  700,  758. 

Cited  in  State  ij.  Johnson,  40  Coua.  Uid  (187:5)  ;  State  <'.  Welch,  21  Minn   '>" 
(1874). 

Roberts  v.  State,  15  Ga.  310.    pp.  193,  232,  474. 

Cited  in  Cunningham  v.  State,  5(;  Miss.  2(;!)  (;U  Ain.  Rep.  SCO)  (l,si;<(). 

Robinson  v.  State,  5  Te.\.  (App.)  511).     )>.  853. 

Rogers  v.  People,  3  Park.  (i31.    p.  727. 

Cited  in  Rafferty  v.  People,  (JO  111.  118  (1872)  ;  State  v.  Robinson,  20  W.  Va. 
713  (1882). 

Rogers  v.  State,  33  Ind.  543.    p.  782. 

Russell  V.  State,  53  Miss.  3f;7.    pp.  527,  8GC,  86{>. 


Sanchci,  v.  People,  22  N.  Y.  147.     pp.  292,  857. 

Cited  in  MacFarland's  Case,  8  Abb.  Pr.  (x.  s.)  57  (1870). 
Sanchez  v.  People,  18  How.  Pr.  72;  4  Park.  535.    p.  857. 

Cited  in  Sanchez  v.  People,  22  N.  Y.  147  (1800) . 
SuAvyer  v.  State,  35  Ind.  80.    pp.  790,  857,  807. 

Cited  in  Guetig  v.  State,  03  Jnd.  278  (1878) . 
Sayres  v.  Com.,  88  Pa.  St.  2!)1.    pp.  520,  531,  858. 

Cited  in  ^OY^v.  State  (Ala.),  10  Rep.  047  (1883). 
Schallcr  v.  State,  14  Mo.  502.    pp.  727,  741. 

Cited  in  People  v.  Robinson,  2  Park.  235  (1855) . 
Schlenckerr.  State,  9  Neb.  241.     pp.  752,  754. 
Scott  V   Com.,  4  Met.  (Ky.)  227.     pp.  37,  100,  136,  270. 

Cited  in  State  v.  Felter,  25  Iowa,  07  (1808). 
Scott  V.  State,  12  Tex.  (App.)  31.     pji.  686,  727. 
Seaver  v.  Phelps,  11  Pick.  304.     p.  313. 
Sellick's  Case,  1  City  Hall  Rec.  185.    p.  807. 
Shailer  v.  Bumstead,  99  Mass.  112.     p.  801. 


TABLE   AND    CONCORDANCE   OF   CASES. 


xxix 


rjs. 


Miannahan  v.  Com.,  8  Bush  (8  Am.  Rep.  4(15)  404.     pp.  J.-,;,  c.QS,  7 

Cited  in  State  v.  Joliiisou,  4rt  Conn,  l.'ic  (187;i). 
^luilt/.  V.  State,  13  Tex.  401.    ]).  soi. 
SiiKlram  v.  People,  88  N.  Y.  19(].    p.  802. 
S^itl.  ..  Com.,  1  Duv.  224.     pp.  .7.  00,  100,  270,  .83,  4.;2,  5,7,  5.;2,  6«9,  .;75,  727. 

^''nVn,  'm-'  "■  ""T-  '  ''"•'"■  "''  ^•«"'^^'    S*'^*^  "•  I'^^^'tor,  25  Iowa,  07 

2/1873?.'  Sh""'"''  :•       "'-A'  ''"■'''  "'  ^^'''"^  '  '^*«*«  -  Crawford   11  Kas. 

Paul   ;8k   c  'Tfn«;>;^^^^^^     '  ''"■^"'  "''  ^' '•'■"•  ^^''-  4<-);  State  .. 
Paulk,  18  S.  C.  014  (1882);  State  v.  Kobiuson,  20  W.  Va.  713  (1882). 

Smithr.  Tebbltt,  L.  K.  l.P.  ^D.  ;5.,8.     pp.  82,  84,  ;]14. 

Suyder  v.  State,  39  Ind.  105.     p.  877. 

Cited  in  McDougal  0.  State,  88  Ind.  24  (1883). 
Spann  v.  State,  47  Ga.  oS.    pp.  309,  304. 

Cited  in  Uoswell  v.  State,  03  Ala.  321  (187!)). 
Spauu  V.  State,  47  Ga.  540.     pp.  90s,  om. 
State  V.  Arnold,  12  Iowa,  470.    ]>.  917. 
State  V.  Avery,  44  N.  II.  302.     p.  703. 
State  V.  Baber,  74  Mo.  202.    p.  518. 

St.ue  V.  Bartlett,  43  N.  II.  224;   il  Am.  L.  Reg.  (x.  s.)  o^      pp   87   -U    '^-9   .,•> 
1'-'.  174,  480,  527,  500,  877.  ^  PP- »<,  -14,  o<2,  412, 

'''^^n>^i^^^;yV7'"'-  ^^''"••^  '''  ^''''^■'  «tate..Jones,50N..II. 
Va  745    U.f;-  'f ";  ''  '''''''  ''  ^''''^->  «^--'«r  V.  State,  11  W 
8^0    IP  it:;  """;-"■'•  ''  ''^"  '-  ^''''^  '  ^"--^"'«  C-so,  20  Gratt. 

'   !n        V  C"'"""Sham  ..  State,  50  Miss.  209  (31  Am.  Rep.  360)  (1800)  ■ 
McDouga!  v.  State,  88  Ind.  24  (1883).  '.^<'»^- J  . 

State  V.  Bell,  20  Iowa,  310.     pp.  682,  098,  758. 

Cited  in  Stat,  v.  Maxwell,  42  Iowa,  208  (1875)  ;  State  „.  Welsh,  21  Minn.  2- 

State  r.  Bowen,  1  Iloust.  Cr.  Ca.s.  91.     j).  7i>8. 

■Statu  V.  Brandon,  8  .Tones  (L.)  403.     pp.  OO,  100,  lU,  300,  500 

W  ^•H  State  r.  Felter,  25  Iowa,  07  (1808) ;  Strauder  ..  State,  U  W   Va 
/4o;  Boswell's  Case,  20  Gratt.  800  (1871). 

^tat,.  ..  Brinye.,  5  Ala.  241.     pp.  231,  349,  300,  372,  407,  514,  500,  010 

''n«-n  ''f  "'f  ^^  ^-  ^'^'''  1^  ^^1'^-  -^34  (1850) ;  State  ..  Feltor,  32  Iowa,  40 
-1   ;  People  v    Garbutt,  17  Mich.  05  (,S08) ;  Strauder  ..  State,  11  W 
^ .».  <4.;;  Boswell's  Case,  20  Gratt.  800  (1871). 
iJistimjuished  in  Boswell  v.  State,  (^3  Ala.  32,3. 
Stat.'  .-.  Brown,  1  Iloust.  Cr.  Cas.  530.     ;,p.  l'iki.  231,  801 


XXX 


TABLE    AND    CONCOUDANCE   OF   CASES. 


State  P.  Bruce,  48  Iowa,  530.    |).  51 1;, 

Cited  in  State  v.  Grcar,  '2'J  Miuii.  22\.  (1882). 
St'itc  P.  Bullock,  i:!  Ala.  41:?.     p.  7;!0. 

Cited  in  Tldwull  v.  State,  70  Ala.  ;;;i  (1881). 

State  V.  Christmas,  t;  Jones  (L.)  471.    p.  820. 
State  V.  Coleman,  '27  La.  .Vnn.  (I'.tl.     p.  517,  758. 

State  r.  Crawford,  11  Kas.  :!2.     pp.  427,  459,  474,  527,  352,  877. 

Cited  in  Cmuiinsham  v.  State,  5(1  Miss.  2);'t  (.'U  Am.  Rep.  .^CO)  (187!t) ;  Ford 
r.  State  (Ala.),  KrUep.  (147  (188;?) ;  McDougal  i\  State,  88  Ind.  24  (1883) ; 
State  V.  Hedenieier,  71  Mo.  177  (187'J)- 

State  V.  Cross,  27  Mo.  332.     pp.  «1»,  757. 

Cited  in  State  ?>.  Kdwards,  71  Mo.  ,124,  325  (1871)) ;  State  r.  Dearinsi,  i!5  Mo. 
533  (1877) ;  State  v.  Hundley,  40  Mo.  4  (1870). 

State  V.  Cunuiniiham,  72  N.  C.  4{I!i.    p.  8(14. 
State  V.  Curtis,  70  Mo.  5".)4.     p.  14. 
State  V.  Cashing,  2ll  Mo.  215.    p.  41G. 
State  r.  Danby,  1  Houst.  Cr.  Cas.  1(17.    pp.  231,  331,  514. 
Cited  in  Ford  v.  State  (.Via.),  IG  Rep.  047  (1883). 

State  r.  Dcarinc:,  (15  Mo.  530.     p.  757. 

Cited  in  State  v.  Edwards,  71  Mo.  324  (187!»). 
State  V.  De  Ranee,  14  Rep.  208.    p.  517. 
State  r.  Dillahunt,  3  Ilarr.  (Del.)  551.     pp.  220,  231,  748. 
State  V.  Donovan,  10  N.  W.  Rep.  20(1.    p.  678. 
State  r.  Edwards,  71  Mo.  312.    p.  757. 

State  r.  Erb,  9  Mo.  (App.)  580. 

Reversed,  State  v.  Erb,  74  Mo.  19!). 
State  V.  Erb,  74  Mo.  I'.tO.     pp.  10,  233,  518. 

Cited  in  State  v.  Baber,  74  Mo.  2i.t2  (1881)  ;  State  r.  Kotovsky,  74  Mo.  247 

(1881). 

State  r.  Felter,  25  Iowa,  (17.     pp.  75,  92,  lOil,  107,  113,  270,  371,  8G0,  8C4. 

Cited  in  State  v.  Jones,  50  N.  II.  3(19  (1871) ;  Boswell  r.  State,  C3  Ala.  320 
(1879) ;  State  r.  Mewherter,  46  Iowa,  88  (1877) ;  State  r.  Stickler,  41  Iowa, 
222  (1875). 

State  V.  Felter,  32  Iowa,  49.     pp.  370,  371,  510,  517,  800. 

Cited  in  State  v.  Bruce,  48  Iowa,  530  (1878);  Ford  v.  State  (.Via.),  10  Hep. 
047  (1883). 

State  V.  Ferguson,  2  Hill,  019.    p.  725. 

State  V.  Gardiner,  Wright,  372.    pp.  5,  267. 


(187!));  Ford 
il.  24  (1883); 


iriug,  Cj  Mo. 


74  Mo.  247 

804. 

63  Ala.  32*; 
sy,  41  Iowa, 


),  IC  Hep. 


TABLE   AND    CONCOUDAXf'K    OF   CASES 


XX  \i 


state  V.  Garvey,  11  Minn.  154.    pp.  i-ji,  ,iOs,  ojis,  75},. 

8  '   :  s    r  "  ,?;      '  ''  ''"'"•  ''  ^''"'^  '  '"''^*«  -  «^^''^'-  ^'«  Minn.  2-'l 
(188-') ;  btate  v.  Robinson,  20  W.  Va.  7V6  (1882). 

State  V.  Graviotte,  22  La.  Auu.  587.    p.  785. 

State  V.  Grear,  28  Minn.  42(i.    pp.  727,  jco. 

State  V.  Grear,  27  Minn.  221.     pp.  518,  7i.'7. 

State?'.  Gut,  13  Minn.  341.     pp.  189,  270,  518,  <;!KH. 

Cited  iti  State  w.  Welch,  LM  Minn   '"'  n.srn.   «tot,        r. 
n«8.»\     n      I        0  -uiiui.  __  (,iN,j);  State  t?.  Grear,  2'J  Mi lui   ""1 

state  r.  Harlow,  21  Mo.  44(1.     i)p.  727,  757. 

Cited  iti  State  v.  Edwards,  71  Mo.  324  (1871)). 
State  V.  Harris,  8  Jones  (L.)  I'M),    p.  (»18. 
State  V.  Hays,  22  La.  Ann.  3<l.     pp.  797,  851),  8(i0. 
State  ,'.  Haywood,  Pliil.  (N.  C.)  37(5.     p.  257. 

Cited  in  State  v.  Payne,  8U  N.  C.  (iO'J  (1882). 
State  y.  Henley,  1  Houst.  Cr.  Cas.  28.     p.  514. 
State  /'.  Holme,  54  Mo.  153.     pp.  420,  800. 

Cited  in  State  v.  liederaeier,  71  M-^.  170  (187!)). 
State  V.  Hopper,  71  Mo.  425.    p.  15. 
State  r.  Hoyt,  40  Conn.  330.    p.  510. 

am  ..^tate  ..  Ho,t,  47  Conn.  518  (1880);   Kord  ..  State  (Ala.),  IG  Rep. 

State  v.  Hoyt,  47  Conn.  518.    pp.  510,  SCO,  805. 

State  r.  Hundley,  40  Mo.  414.     pp.  415,  410,  417,  420,  752,  757,  800 

C',^.d».  State  ..  Edwards.  71  Mo.  312  (1879)  ;  State  ..  Redemeier,  71  Mo.  170 
1     'aS-sT  in     r"^'  f '  """•  ''-'  '•"'  ^''''^  '  State  ..  Hol^e,  54  Mo 
■'07  (1875)!  '  '•  ^'''''  '•'  '''''■  '''  ^''''^  '  St-te  ..  Smith,  53  Mo. 

State  ..  Hurley,  1  Houst.  Cr.  Cas.  371.     pp.  231,  727,  748,  700,  707 

State  ..  Huting.  21  Mo.  404.     pp.  13,  234,  372,  409,  411,  412,  418,  420.  514,  518, 

""aifv'stJ"  ''^rV''  ''"  '"'  ^''''^-'  ^'''''  '•  R-»enieier,  71  Mo.  170 
S  ate  ..  McCoy.  34  Mo.  530  (1804);  State  v.  Felter  32  Iowa,  4- 
8-     ;  Strauder.  State.  11  W.  Va.  745;  Boswell's  Case,  20  Gratt  8  0 
4U  (1870)         '■  ''''  ''  ''"  '''  ^''''^  ■•  ^'-''^  '■  "»»dley.  40  Mo 

State  ..  John,  8  Ired.  (L.)  330  (49  Am.  Dee.  31I0).     pp.  741,  787,  71.3    857 


XXXIl 


TABLE   AND   CONCOllDANCE   OF   CASES. 


Stato  V.  Jolinsou,  40  Coim.  13G.     pp.  270,  510,  603,  liO'.t,  lUl,  M'2,  OCT,  754,  8C1. 

Cited  in  Hopt  v.  Peoplo,  104  U.  S.  H\3  (1882)  ;  Statu  v.  JoliUHOii,  41  Conn.  584 
(1874);  State  v.  Tatro,  50  Vt.  483  (1878);  Stato  v  Robinson,  20  VV.  Vu. 
713  (1882). 

Stiito  V.  Johnson,  41  Conn.  584.    pp.  609,  •ii!2,  067,  757. 

Cited  in  Ilopt  v.  People,  104  U.  S.  103  (1882);  State  v.  Tatro,  50  Vt.  483 
(1878);  State  v.  liobiusou,  20  W.  Va.  713  (1882), 

State  V.  Jones,  50  N.  II.  30i}  (1)  Am.  Kep.  242).     pp.  64,  185,  323,  47'J,  527. 

Cited  in  Wright  v.  People,  4  Neb.  401)  (1870)  ;  U.  S.  o.  Guitcau,  10  Fed.  Rep. 
101  (1882);  Ford  y.  State  (Ala.),  l<i  Rep.  047  (1883). 

Stale  V.  Jones,  17  N.  W.  Rep.  'Jll.    p.  877. 

State  V.  Kcath,  83  N.  C.  020.     p.  727. 

State  V.  Kelly,  57  N.  II.  399.     p.  85!). 

State  V.  Klinger,  43  Mo.  127.     pp.  372,  410,  415,  417,  418,  420. 

Cited  in  State  v.  Redemeler,  71  Mo.  170  (1871));  8  Mo.  (App.)  10  (1870): 

State  V.  Iloyt,  47  Conn.  518  (1880);  State  >:.  Felter,  32  Iowa,  49  (1871); 

State  V.  Smith,  53  Mo.  207  (1873) . 

State  V.  Klinger,  40  Mo.  229.     p.  14. 

Cited  in  State  u.  Erb,  47  Mo.  205  (1881). 
State  V.  Kotovsi<y,  74  Mo.  247.     p.  233. 
State  V.  Kring,  1  Mo.  (.•^pp.)  438.     p.  851). 

Overruled  in  State  v.  Kring,  04  Mo.  591  (1877). 

Stale  V.  Kring,  04  Mo.  591.     pp   859,  800. 

State  V.  Kring,  74  Mo.  012.     p.  858. 

State  i\  Lawrence,  57  Me.  574.     pp.  17,  232,  370,  386,  478,  517. 

Cited  in  Boswell  v.  State,  03  Ala.  320  (1879)  ;  Wright  v.  People,  4  Neb.  409 
(1870);  Ilawe  v.  State,  11  Neb.  537;  38  Am.  Rep.  275  (1881);  State  v. 
Grcar,  29  Minn.  221  (1882);  Ford  v.  State  (-Ua.),  10  Rep.  G47  (1883). 

State  V.  Lee,  00  3Io.  107.     p.  16. 

State  V.  Mahn,  25  Kas.  182.     pp.  232,  527. 

State  0.  Marlcr,  2  Ala.  432  [36  Am.  Dec.  398].     pp.  346,  351,  305,  307,  451,  469, 
514. 

Cited  in  S*:aLL  n.  Brinyca,  5  Ala.  241  (184;!) ;  People  o.  Garbutt,  17  Mich.  9 
(1808)  ;  IIopps  V.  People,  31  111.  385  (1803). 

Distinguished  in  IBoswell  v.  State,  03  Ala.  322  (1879). 

State  f.  Martin,  3  Crim.  L.  Mag.  44.     p.  514. 

.State  r.  Maxwell,  42  Iowa,  208.    p.  758. 

State  y.  Mcwlierter,  46  Iowa,  88.    pp.  102,  324,  517. 
Cited  in  State  v.  Bruce,  48  Iowa,  530  (1878). 

State  V.  Mullen,  14  ]>a.  Ann.  590.     p.  727.  ' 


TAHLK    AXI)    CONC'OItDANCE    OF    CASES. 


XXXllI 


statu  V.  McCaiits,  1  Spears,  384.    pp.  ()21,  Cofl,  722,  7l'7,  707. 

Cited  in  Kaffcrty  v.  People,  fifi  111.  118  (1872) ;  Peoplu  v.  RoRors,  18  N.  Y.  !' 
(1858);  Statu  y.  Cross,  27  Mo.  ;5:5l>  (1858);  Stato  u.  Robiusoii,  20  W.  Va. 
713  (1882). 

.Stiile  ('.  McCoy,  34  Mo.  531.     pp.  408,  412,  415,  418,  42r,,  518. 

fjiteilin  iState  v.  Rock-mcicr,  71  -Mo.  17t;,  (IHTH)  ;  8  Mo.  (App.)  1  (1879)  ;  State 
V.  Iloyt,  47  Conn.  518  (1880);  State  ??.  Smith,  58  .Mo.  2(17  (1873) ;  State  V. 
Klinjier,  43  Mo.  127  (18t)8);  State  v.  llumlley,  4(1  Mo.  414  (1870). 

State  r.  McGonigal,  3  Ilarr.  510.    p.  752. 
State  ('.  Nash,  7  la.  347.     i>.  373. 
State  V.  Ostrander,  18  la.  435.     p.  373. 
State  ('.  Patten,  10  La.  .Vnii.  2'.i',i.    j).  {)01. 
State  V.  Paulk,  18  S.  C.  314.     p.  727. 
State  V.  Payne,  8(i  N.  C.  tiO;>.    p.  518. 

Cited  in  Ford  v.  State  (Ala.),  Hi  Rep.  G47  (1883). 
State  V.  Pike,  4!)  N.  II.  3!t!».     pp.  85,  8(J,  91,  127,  311,  527. 

Cited  in  State  v.  Jones,  50  N.  II.  309  (1871);  Bradley  v.  State,  31  lud.  492 
(18G;i). 

State  V.  Poison,  29  la.  133.    p.  112. 

State  V.  Pratt,  1  Iloust.  Cr.  Cas.  249.     p.  327. 

State  V.  Preseott.    p.  490. 

State  V.  Reddiek,  7  Kas.  144.    pp.  527,  S^j'tj. 

Statu  V.  Redemeier,  71  ^lo.  173.    pp.  13,  14,  233,  424,  518,  809. 

died  in  State  v.  Kotovsky,  74  Mo.  248  (1881);  State  w.  Erb,  74  Mo.  203, 
204  (1881);  State  v.  Sims,  71  Mo.  538  (1880);  Ford  ?;.  State  (Ala.),  IG 
Rep. 047  (1883). 

State  V.  Redemeier,  8  Mo.  (App.)  1.    p.  424. 

Slate  V.  Richards,  39  Conn.  591.    pp.  1,  270,  783. 

Slate  V.  Robinson,  20  W.  Va.  745.     pp.  872,  873. 

siaie  V.  Samuel,  3  Jones  (L.)  74.    p.  793. 

state  V.  Schingen,  20  Wis.  74.     pp.  098,  759. 

Cited  in  State  v.  Welch,  21  .Minn.  22  (1874). 
Statr  r.  Scott,  1  Hawks,  24.     p.  858. 

cited  in  State  v.  Vaun,  82  N.  C.  031  (1880). 
State  r.  Sewell,  3  Jones  (L.)  245.     pp.  816,  8G3. 
State  V.  Shippey,  10  Minn.  l'23.     pi).  190,  233. 

Citedin  State  i\  Gut,  13  :Miini.  343   (1808). 
^late  w.  Sinnns,  08  Mo.  305.     pp.  420,  7S2. 

Citedin  State  v.  Redemeier,  71  Mo.  170  (1879). 


XXXIV 


TAMLE    AND    CONCOUDANCK    OF   CASKS. 


Stttto  V.  Smith,  40  Conn.  37f!.    p.  874. 

.State  r.  Smith,  o.'l  Mo.  L'f,:.     pp.  .'Klit,  418,  42(i. 

Citrd  in  Sliili'  r.  Kfdcmclcr,  71  Mo.  17(>  (1870);  HoswoU  v.  Stuti',  M  AI;i. 
JiL'd  (187'.i);  Stiitf  V.  (Jmir,  2!t  .Minn.  221  (1882). 

Slate   ('.  Spencer,  21    N.  J.  (L.)  I'.m;,     pp.  5,   70,  2:54,  251,  835,  ;'.:2,  ;578,  4ii7,  4(18, 
48i5,  48'.i,  4'J2,  41t8,  514,  r)llt,  6!l!l,  858,  SCI . 

Citrd  in  State  i>.  Jones,  50  N.  II.  .'5(1!)  (1871);  State  r.  Feltor,  32  Iowa,  4!» 
(1871) ;  I'eople  v,  GiU'butt,  17  Mich.  It  (1880;, ,  Gmhani  v.  Coin.,  HI  B.  Mon. 
587  (1855);  People  v.  McCanu,  KJ  N.  V.  02  (1857);  Straudor  v.  State,  1 1 
VV.  V'a.  745;  State  r.  Hartlett,  43  N.  11.224  (1801);  IJoswell'.s  Case,  2i) 
Oratt.  800  (1871);  People  v.  Waltz,  50  How.  I'r.  202  (1874);  People  r. 
McCann,  3  Park.  272  (1857);  Ford  i'.  State  (Via.),  10  Hep.  047  (1883). 

Stater.  St,  Louis  Pnbllc  School.^,  30  Mo.  lOo.    |t.  4lo. 

.State  r.  Stark,  1  Strolth.  47il.     i)p.  407,  48'J,  581,  850. 

Cited  in  IJeasley  r.  State,  50  Ala.  153  (18''3);  People  v.  Garbutt,  17  Mich,  i) 
(1808);  Strander  v.  State,  11  W.  V'a.  745;  State  v.  Bartlott,  43  N.  II.  224 
(ISOl);  Boswell's  Case,  20  Gratt.  800  (1871);  Ford  r.  State,  (.Via.)  10 
Hep.  047  (1883). 

State  r.  Starlinj^,  0  Jones  (L.)  300.     pp.  370,  372,  518,  51l'J. 

Cited  in  Boswell  r.  State,  03  Ala.  32i!  (187'.i);  State  v.  Hoyt,  47  Conn.  518 
(1880);  State  v.  Pelter,  32  Iowa,  A'J  (1871):  State  v.  Strauder,  11  \V.  \'a. 
745;  Boswell's  Ca.se,  20  Gratt.  800  (1871). 

State  i\  Stickley,  41  Iowa,  2.12.    pp.  108,  270. 

State  V.  Strander,  11  W.  Va.  745.    p.  521. 

Citedin  l-'ord  v.  State  (Ala.),  10  Rep.  047  (181)3). 

State  ('.  Summons,  9  West.  L.  J.  408.    p.  258. 

State  V.  Tatro,  50  Vt.  48:5.    p.  «G0. 

state  r.  Thomas,  1  Iloiist.  Cr.  Cas.  511. 

State  V.  Thompson,  12  Nev.  140.     !>.  743. 

State  V.  Thompson,  Wright,  022.     p.  730. 

state  V.  Till,  1  lloust.  Cr.  Cas.  223.     |i.  74&. 

State  V.  Toohey,  2  Kice  Uig.  105.    p.  725. 

State  r.  Turner,  Wriglit,  20.    p.  730. 

."^late  V.  Trivas,  32  La.  Ann.  1080.    p.  758. 

State  V.  Vann,  82  N.  C.  o:'.l.    pp.  858,  861. 

State  1'.  Vann,  84  N.  C.  722.     p.  !ill>. 

State  V.  Welch,  21  Miuii.  22.    pp.  697,  75;i. 

State  c.  West,  1  Iloust.  Cr.  Cas.  371.     pp.  231,  514,  800. 

State  V.  Willis,  03  N.  C.  20.     pp.  000,  802,  803. 

Cited  in  Boswell's  Case,  20  Gratt.  800  (1871). 


TABLE    AND    CONCOKUANCE    OF   CEASES . 


XXXV 


State  r.  Windsor,  5  Iliirr.  (Del.)  512.    pp.  'M,  2^1,  :?*J4. 

Stovc'US  r.  State,  31  Ind.  485.     pp.  TC,  87,  127,  324,  373,  4f.2,  r.2(;. 

Cited  in  State  t).  Joiie.s,  50  N.  II.  3i;!»  (l*<7!t);  Statu  r.  Keltcr,  32  Iowa,  4',» 
(1H71):  IJradlcy  r.  State,  31  Iiid.  41)2  (ISC'.));  State  r.  Crawford,  11  Kas. 
32  (187;!). 

Stewart  r.  Mspeiiard,  2(1  Wend.  255.     |>.  .".H. 

Stiid.stlll  r.  State,  7  CJa.  202.     p.  232. 

Stuart  V.  State,  1  Baxt.  IHO.     pp.  2i;'.t,  8«(». 

Sullivan  r.  People,  31  Mkii.  I.     p.  SCI. 

Sutton  V.  Sadler,  3  C.  B.  (x.  s.)  87;   1  Kng.  (.".  L.  87.     pp.  48(1,  52li. 

Sutton  V.  State,  41  Tex.  513.     i>.  854. 

Swan  V.  State,  4  Ilunipli.  13(;.     pp.  574,  570,  5!»5,  043,  C4!),  (151,  (155,  (157,  (ijii, 
(i(U»,  085,  0110,  0;»8,  704,  730,  741,  742,  754,  758. 

Cited  in  Mooney  v.  State,  33  Ala.  4i;t  (185!t);  Golden  r.  State,  25  (iii.  27 
(1808);  State  v.  Bullock,  13  Ala.  413  (1848);  I'eople  v.  Koyers,  18  N.  V. 
!t  (1858) ;  State  v.  Bell,  2t)  Iowa,  310  (1870) ;  Lo/.a  v.  State,  1  Tex.  (App.) 
488  (1877);  Roberts  u.  People,  1!)  Mich.  401  (1870);  People  t>.  Kobinson, 
2  Park.  235  (1855);  Nichols  u.  State,  8  Ohio  St.  435  (1858)  ;  Plrtle  v.  State, 
9  Humph.  063  (184!));  Cartwright  v.  State,  8  Lea,  377  (1871);  Boswell's 
Case,  20  Gratt.  SCO  (1871);  Hallo  u.  State,  11  Humph.  154  (1850);  Lan- 
caster V.  State,  2  Lea,  578  (187!i) ;  State  v.  Welch,  21  Minu.  22  (1874) ; 
Bartholomew  v.  People,  104  111.  005  (1882). 

Taffe  V.  State,  23  Ark.  34.    p.  !)18. 
Thomas  v.  State,  40  Tex.  00.     pp.  20!i,  807. 
Tidwell  V.  State,  70  Ala.  33.     p.  731. 
Tyra  v.  Com.,  2  Met.  (Ky.),  1.     p.  727. 


Underwood  v.  People,  32  Mich.  1.     p.  iHrt. 

U.  S.  V.  Bowen,  4  Cranch,  C.  C.  004.     p.  758. 

U.  S.  V.  Clarke,  2  Cranch,  C.  C.  I5S.    pp.  741,  7.'>1. 
Cited  in  People  v.  Robinson,  2  Park.  2;;5  (l«j.j). 

U.  S.  V.  Claypool,  14  Fed.  Rep.  127.     pp.  728,  745. 

U.  S.  Drew,  5  Mason,  28.     pp.  420,  407,  555,  580,  5'.i(;,  5'.i7,  5;i8,  001,  030,  000,  727, 
7-H. 

Cited inHopt  v.  People,  104  U.  S.  631  (1882);  People  f.  Rogers,  18  N.  V.  9 
(1858);  Choice  v.  State,  31  Ga.  424(1800);  People  v.  Garbutt,  17  Mich.  It 
(1808)  ;  Fisher  v.  State,  04  Ind.  435  (1878)  ;  State  v.  Mullen,  14  La.  Ann.  570 
(1859)  ;  People  v.  Robinson,  2  Park.  235  (1855)  ;  Boswell's  Case,  20  Gratt. 
SCO  (1871);  State  v.  Hundley,  40  Mo.  414  (1870);  State  i'.  Robinson,  20 
W.  Va.  713  (1882). 

U.  S  V.  Forbes,  Crabbe,  558.    pp.  728,  745. 


XXXVl 


TAI»LK    ANU    CONCOKDANCK   OF   CA8K8. 


U.  S.  »'.  (iiilk'iiu,  I  MiicUiy.    p.  858. 

IT.  S.  «.  (iiiltomi,  10  Fi'd.  Hep,  1(!1.     pp.  1«S,  I'.lU,  H58,  KoH,  8(:4. 

IT.  S.  V.  IIew.soii,  7  Law  Rep.  ;ti;i .     p.  7^;'. 

U.  S.  V.  Ilolmus,  1  Cliff,  W.     pp.  l.'7i),  ;!'.)I,  ;iiM,  85!l,  HtiJ. 

Cited  in  Statt-  r,  Luwrt'iiuc,  57  .Mf.  574  (1870). 
r.  S.  V.  LanciisttT,  7  JM.ss.  140.     p.  H1>7. 
I'.  S.  V.  Lawrence,  4  Craiu-h,  C.  C.  r)lH,    i)p.  ;iL'4,  874. 

r.  S.  w.  McGliU',  1  Curt.  1 .     pp.  I'l,  54,  2ol,  270,  420,  47(j,  489,  580,  Bill,  5'JIJ,  CiJO, 
(KJC,  727,  741,  741,  852. 

Cited  in  Ilopt  r.  IVoplo,  104  U.  S.OiU  (1882);  State  v.  Hoyt,  47  Conn.  f,18 
(1880);  IVoplc  r.  Uof^ers,  18  N  V.  U  (1^58);  Tlionms  v.  State,  40  Te.\. 
00  (1874);  Stato  v.  Thomp.son,  12  Nev.  140  (1877);  IVoplo  v.  Robinson, 
2  Parlx.  2155  (1855)  ;  State  r.  Bartlctt,  i?,  N.  II.  224  (1801)  ;  Carter  v.  State, 
12  Tex.  500  (1854) ;  Roswell's  Case,  20  Gratt.  8(i0  (1871)  ;  People  v.  Waltz, 
50  IIow.  Pr.  202  (1874);  State  v.  Ilundiey,  40  Mo.  414  (1870;)  Dejarnotte 
w.  Com.  75  Va.  807  (1881);  Cnnninjihani  v.  State,  5(J  Miss.  2G9  (lU  Am. 
Rep.  300),  (18711) ;  State  v.  Robinson,  20  W.  Va.  713  (1882). 

U.  S.  0.  Perez,  0  Wlieat.  57l».     p.  015. 

U.  S.  V.  Rondenbnsli,  Bald.  514.     pp.  081,  085,  O'.IO,  0!i2,  701,  758,  765. 

Cited  in  IMooney  v.  State,  33  Ala.  41!i;  State  v.  Bell,  21)  Iowa,  31(;  (1870); 
Loza  V.  State,  1  Tex.  (App.)  488  (1877);  Rol)erts  r.  I'eople,  I'.l  :\rieii.  401 
(1870)  ;  Wood  V.  State,  34  Arl<.  341 ;  30  Am.  Rep.  13  (187'J)  ;  Bartholomew 
0.  People,  104  111.  005  (1882). 

II.  S.  V.  Shultz,  0  :\IcLean,  121 .     p.  813. 

Vanaulven,  in  re,  2  Stoeiv.  180.     p.  '.15. 
Vance  V.  Com.,  2  Va,  Case.,  132.    p.  800. 
Vincent  v.  State,  '.»  Tex.  (App.)  203.     p.  854. 


Wagner  v.  People,  4  Abb.  Apn    Dec    50'.t.     p.  530. 
Walker  y.  People,  20  Hun,  07,  '  N.  G.  Cr.  Rep.     p.  40. 
Walker  v.  People,  1  N.  Y.  Cr.  Rep.  7.     pp.  4%  234. 
Walker  v.  State,  7  Tex.  (App.)  202.     p.  830. 
Walker  v.  State,  42  Tex.  300.     p.  843. 
Walker  v.  Walker,  14  Ga.  242.     pp.  542,  543. 

Walter  v.  People,  32  N.  Y.  147.     pp.  44,  470,  513. 

Cited  in  State  v.  Hoyt,  47  Conn.  518  (1880) ;  People  v.  Garbutt,  17  Midi.  <i 
(1808);  O'Brien  v.  People,  48  Barb.  274  (1807);  Patterson  c.  People,  4'J 
Barb.  025  (1800);  Walker  v.  People,  1  N.  V.  Crim.  Rep.  7  (1881), 

Ward  V.  People,  3  Hill,  305.     p.  027. 

Wariny;  v.  Wai'lnu',  0  Moore  P.  C.  341.     pp.  82,  315. 


TAUI.E    AND    COXCOKDANCK    Ol"    CASKS. 


XXXVll 


Warren  v.  Coin.,  87  Pa.  St.  4o.     p.  SOU. 

Wiirrcii  I'.  Stall',  9  Tvx.  (App.)  <;i:i.     p.  SUI. 

Wobl)  I'.  Sttttf,  5  Tc'x.  (Ai)p.)  o!m;.    pp.  L'(i!»,  -'70,  8;;;i,  S(M>,  h?'.'. 

CitPd  in  Williams  r.  .State,  7  Tt-x.  (App.)  KIS  (187!>);  .lohiisoii   r.  State,  10 

Ti'X.    (App.)    .•):,■.    "H   (IMHl);    W<.l)li  W.  State,  !l    Tl'X.  (Ap|).)  4'.iO    (1»(<0); 

Wari-fu  r.  state,  :•  IVx.  (App.)  ii:);!  (188ni. 
\\\l)l)  r.  State,  !t  Tex.  (App.)  4'.in.     pp.  o.VJ,  83.'>,  84<;,  H5H,  8i!8,  875. 

CV/^-t/  f»i  .lolm.son  r.  State,  10  Tex.  (App.)  .-.77,  578  (1881) ;  KIiik  v.  State,  !• 
Tex.  (App.)  557  (1880);  Fonl  c.  Slate  (Al;i.),  IC  Kep.  (i»7  (I88a) ;  Kiii^' '•. 
Stale,  i;}  Tex.  (App.)  L'8;!  (188-*). 

Wehh  V.  Ware,  :)-J  Mlcli.  77.     ii.  141. 

Weiizr.  Slate,  1  Tex.  (Ap|).)  :)n.     pp.  (182,  70H,  758. 

Cited  in  Loza  r.  Slate,  1  Tex.  (App.)  488  (1877);  \\\hh\  r.  state,  ;;4  Ark. 
:U1,  :;"i  Am.  Kep.  l;i  (187!i). 

We.stmorelaiid  r.  State,  45  (la.  L'L'5.     pii.  I'.'iL',  51(1. 

Whaley  v.  Slate,  H  Tex.  (App.)  805.     !>.  854. 

Williams  V.  State,  7  Tex.  (App.)  Hi;;,     p.  20{>. 

Williams'  Ca.se,  '_'  (Jralt.  5(17.     p.  015. 

Willis  V.  People,  5  Park.  di'l.     p.  243. 

AxfJrmed  in  Willis  r.  People,  ;12  N.  V.  713  (I8f!5). 

Willis  V.  People,  V.'J  N.  V.  715.     pp.  :57,  ;'.8,  W,  243,  L'tC,  251,  27*1,  531. 

Cited  in  Flana-^au  v.  People,  52  N.  Y.  4(i7  (11  Am.  Kep.  7;!I) ;  Cole's  Case,  7 
Abl).  Pr.  (.\.  s.)  »2l  (l8tiS;;  Wagner  v.  People,  4  Al)l>.  App.  Dee.  50'.': 
People  V.  Waltz,  50  How.  Pr.  204  (1874);  People  v.  Montgomery,  1.".  Abl>. 
Pr.  (\.  8.)  207  (1870);  People  v.  O'Connell,  <;2  How.  Pr.  4;;o  (1881); 
Walker  v.  People,  1  N.  Y.  Crlm.  Hep.  7  (1881). 

WomaeU  r.  Circle,  2'.i  Gratt.  Iii2.     p.  21. 

Wilson's  Case.    p.  741. 

Withan  v.  Lewis,  1  Wils.  53.     p.  ;U!i. 

Wood  V.  State,  34  Ark.  341 ;  3G  Am.  Kep.  13.     pii.  680,  75!t. 

Wright  V.  People,  4  Neb.  407.    pp.  17,  2.34,  477,  527. 

Cited  in  Ilawe  v.  State,  11  Neb.  537;  38  Am.  Hep.  375  (1881)  ;  Hart  >•.  State, 
14  Neb.  375  (1883);  Ford  r.  State  (.Via.),  l(j  Hep.  (14  (1883). 

Wriiiht  V.  Tathani,  1  Ad.  &  t:.  3;  34  E.  C.  L.  178.     i)ii.  248,  540. 
Wyinun  v.  Gould,  47  Me.  15'.i.     p.  111. 

Young  V.  Martin,  8  Wall.  354.    p.  fiOd. 
Young  i\  Stevens,  48  N.  H.  133.    p.  313. 


Zembrod  v.  State,  25  Tex.  ol'J.    p.  875. 


Tost  o: 

Test  oj 
1 
( 

I'articv 
] 

Test  of 


Test  ()1 
( 

Test  of 
I 

T.St  of 

T.St  of 
1< 

Samo  Ci 

Test  of 
fc 

N'o  Lcgii 

No  Test 

Insane 

P< 

Uncontr 

of 

Moral  Ii 
io 


TABLE  OF  CONTPJNTS. 


(H AFTER  J. 

Thk  Lkoal  Tkst  ok  Insanity. 

Tost  of  Insanity-  Dementia  -  Responsibility.     State  v.  Bichards,  .i!)  Conn'.'""' 
591 

1 

Test  of  Insanity -.Vet  must  be  Result  of  Insanity  to  })e  Exensablc-Bar. 
barity  of  .let  no  Pres.nnptiou  of  Insanity.    Bomrd  v.  State,  30  Miss. 

4 

Particular  Riglit  and  Wrong  Test -Burden  of  Proof  -  Opinions  of  Non- 
Experts.     State  V.  Erb,  74  Mo.  109 j,^ 

Trst  of  Jnsanity-IIypocliondria.  State  v.  Hawe,  11  Neb.  537;  38  Am.  Rep. 
•575     ... 

k; 

T.St  of  Insanity- Irrelevant  Questions -Burden  of  Proof.    Dejarnette  v 
Co7n.,  75  Va.  8(i7 

Test  of  Insanity -Insanity  at  Trial -Practice -Form  of  Oatli- Experts 

People  V.  Kleim,  Edni.  Sel.  Cas.  13 '     ^(. 

T.St  of  Insanity  -Ability  to  Distinguish  as  to  Right  or  Wrong  of  Act  Flan- 
a<jan  v.  People,  52  N.  Y.  4<;7;  11  Am.  Rep.  731        . 

Test  Of  Responsibility -Burden  of  Proof.     Walker  v.  People,  1  N   Y  Crim 

Rep.  7;  2(i  Hun,  (J7  .        .         .        .  '  "     .^ 

40 

Same  Case  (In  the  Court  of  Appeal)         .... 

Test  of    Insanity  -  Experts  -  Delirium   Tremens  -  Intoxication   no   De- 

fence -Burden  of  Proof.     United  States  v.  Mc  Glue,  1  Cm-t.  1     .        .  54 

Xo  Legal  Test  of  Insanity.     State  v.  Jones,  50  N.  II.  36!>;  9  Am.  Rep.  242     .  (U 

No  Test -Burden  of  Proof.     Stevens  v.  State,  inind. -iSo      ....  87 

Insane  Impulse -Prior  Insanity  -  Insanity  <•!  Father  -  Evidence  of  Ex- 
perts,     ^-'nte  V.  Fetter,  25  la.  <!7      .         .        .        .  j,. 

Uncontrollable   Impulse  -  Insane  Delusion -Test  of  Insanity -Evidence 

of  Appearance  and  Conduct.     State  v.  Mewherter,  4(J  la.  88  .         .        .  102 

Moral  Insanity -Insanity  must  Directly  Cause  Crime  to  Excuse  it-Ooin- 

ions  of  Witnesses.     State  v.  Stickley  41  la.  232      .  .        .  "     .  108 

(xxxix) 


xl 


TABLE    OK    CONPEXTS. 


lAiu;. 
Test  of   Insanity  —  rndcrstanUinii'  and  Will  —  IJunloii  of   Proof  —  I{easoii- 
aiile   Doiilit  —  l)rnnkL'nnt.'s.s — llorcditury   Insanity  —  Rooks  of    Sci- 
ence—  Export  —  Compensation.     Bradley  v.  State, '.il  Ind.  2'J'2     .        .   lU 

Moral  Insanity  —  Now  Trial  ou  Ground  of  Newly  Discovered  Evidence,'  — 
Dcirroi'S  oi  Crime.  Anderson  v.  State,  4;!  Conn.  51 +  :  '21  Am.  Kep. 
ecu !•_'!» 

Moral  Insanity.     Scott  v.  Com.,  4  .Mete.  (Ivy.)  227 l;'.t! 

Emotional   Insanity  —  Burden    of    I'roof  —  Iieasonal)lo   Doutit.     People   v. 

Finlei/,  .".8  Mich.  4f<2 \in 

Moral  Insanity  Disapproved — Test  of  Insanity.     S/a/c  v.  CmucZon,  8  Jones 

(I..),  40;; 1  u 

Moral  Insanity  —  Burden  of  Troof  —  Sanity  Presumed  to  Continue.     L>jnch 

V.  Com.,  11  Pa.  St.  14(i no 

Insane  Delusion  —  Responsibility —  Test  of  Insanity  —  Burden  of  Proof  — 

Opinions  of  Medical  Men.     McNaohten's  Case,  \0  C\.  ik  V. 'im     .        .  l.JO 

Insane  Delusion  —  Tost  of  Insanity  —  Burden  of  Proof  —  Opinions  of  E.\- 

perts.     Com.  V.  i?o[/(?/'s,  7  Mete.  SOU;   1  B.  &  II   L.  Cas.         .         •         .15^ 

In.saue  Delusion  —  Distinsuished  from  Erroneous  Opinion  —  Burden  of 
Proof  —  Test  of  Insanity — Evidi'uee.  U.  S.  v.  Guitean,  10  Fed. 
Rep.  li;i Ui;i 

Insane  Delusion  —  Instructions  —  Intoxication  —  Committed  Intentionally 
does  not  Chauirc  (Jrade  of  Crime  —  Burden  of  Proof.  State  v.  Gat, 
13  Minn.  343 I8'.i 

Test  —  Insane  Delusion.    liobert!<  \.  State,  W  Ct-x.'^XO l!i:'- 

NOTES. 

Section  1.  Acts  of  an  Insane  Person  not  Punisliable 200 

2.  The  Cliild  Test 200 

3.  Tlie  Wild  Beast  Test 200 

4.  Iladfleld's  Ca.se  — Er.skine's  Argument I'nl 

5.  Test  of  Knowledge  of  Right  and  Wrong  in  the  .Vbstract     .        .  'Hi 
(!.  Test  of  Knowledge  of  Riglit  and  Wrong  as  applied  to  the  Pai- 

ticular  Case 2 lit 

7.  Tlic  English  Tests  in  tile  American  Courts 2;il 

8.  Riglit  and  Wrong  Test— Alabama 231 

It. California 2:!1 

10. Delaware 231 

1 1 .  Georgia 232 

12.  Kansas — JIaine 2;;2 

13.  Massachusetts 232 

14-15.  — —Michigan — Minnesota  —  Mississippi 233 

IG.  ^ — -Missouri 233 

17.  Nebraska— Now  Jersey 234 

18.  New  York 234 

I'.i.  North  Carolina 257 


TABLE    Ol'   COXTEXTS. 


Xli 


20. 


Ohio 


^'  •  ■  Pennsylvania  ... 

2-^  Tcnncssoc  — Te.\;i.'< 

2."..  Unit(!(l  States  Conrta 

24.  Moral  Insanity  — Irrcsistiblo  Iinpul.sc 

25.  Doctrine  of  Moral  Insanity  Disapproved 
2G.  The  New  Hampshire  Rule  — No  Test 

27 State  v.  Piku  —  Elaborate  Opinion  of  I),,,.,  .r 

28.  lusaue  Delusions    . 


I'.Vfii:. 

.  2,J7 

.  L'."»'.i 

.  2i;!) 

.  2(i:» 

.  27n 

.  no^ 

.  ;ui 

.  ;;i  1 

.  324 

CHAPTKH  ir. 


The  Burden  of  Proof  of  Insanity. 

IJurdou  of  Proof  on  Prisoner  -  Test  of  Insanity.     Stat.  v.  Pratt,  1  llonst 
Or.  Cas.  249;  State  v.  Daaby,  Id.  ICT     ... 

""■''tiorTn  '"  ^'"r-'-T-^t-Continnanee  of  Insanity  1  Declara- 
tions of  Deceased.     State  v.  Sprncer,  21  N.  J.  (L.)  vm; 

Uurden  of  Proof- Reasonable  Doubt  of  Guilt.     State  v.  Marlr-r,  2  Via   43  • 
30  Am.  Dec.  31)8        ....  ' 

Insanity  Mu.st  be  Proved  Be.vond  Reasonable  Doubt  -  Insanitv  After  Ver- 
dicUuKl  Before  Sentence  -  ( .pinionsof  Witnes.ses.     Stat'e  v.  Brin.ea, 

Burden  of  Proof  -  Right  to  Ope.,  and  Close.     State  v.  FrUer,  32  la.  49 

Bunlen  of  Proof- Jury  Must  be  Satisfied  of   In.sanity.     Graham  y.   Com., 
1<)  B.  Mon.  373  ... 

Burden  of  Proof  _  Presumption  of  Sanity  _  Moral  Insanity  -  Drunkenness. 
And  V.  Com.,  5  Bush,  3(;3       .... 

Burden  of  Proof  on  Prisoner.     State  v.  Laxorence,  57  Me   574 

Burdenof  Proof-Opinion  ofWitnessos-Insanity  Presumed  toContinne- 
Test  of  Insanity  -  Insanity  of  Relatives.     Baldxoin  v.  State,  12  Mo. 


Oo7) 

34t; 

34:i 
371 


371) 
3  Si; 


Burden  of  Proof.     State  v.  McCoy,  34  Mo.  531 

""""mo^.  f:^^-^"''*"^"'*'^'-  ^'g'^t  'i"^'  Wrong  Test.     State  v.  Klinoer,  43 

Burden  of  Proof -Instructions -Court  Must  not  Instruct  as  to  Wei^^ht  of 
Evidence  -  Reasonable  Doubt  on  Whole  Evidence.     State  v.  Smith,  53 

Burden  of  Proof  _  Intoxication  -  Instructions  as  to  Weight  and  Suinclency 
ofEvulcnce.     Statev.IIundleii,^^Uo.n^.        .        .        . 


4i\S 
410 

413 
417 


xiii 


TABLK    OF   CONTENTS. 


PAGE. 

Bunkii  of  Trool'  —  Particular  Right  and  Wrong  Tost  —  Now  Trial  —  Ciinui- 

lativo  Evitlc'iice.     State  \.  Rede.mci('.r,~\.  'Slo.  \1^  ....  424 

Burflcn  of  Proof  — Test  — Plea  of  Not  Guilty  — Right  to  Open  and  Close. 
Zof/nerv.  ,SY««e,  10  OhioSt.  598 432 

Burden  of  Proof  —  Quautum  of  Proof  Required.    Ortwein  v.  Com.,  70  Pa.  St. 

414 438 

Burden  of  Proof  —  "Moral  Insanity"  —  Kvidence  —  Attempt  at  Suicide. 

Coyle  V.  Com 44 1 

Burden  of  Proof  —  Reasonable  Doubt  —  Test  of  Insanity  —  Evidence  of 
Good  Character  —  Evidence  of  Another  Crime.  Hopps  v.  People,  31  111. 
385 444 

Burden  of  Proof  —  Frenzy  Arising  from  Anger  or  Jealousy  —  Opinion  of 
Experts.     Guetig  v.  State,  (iC  Ind.  1)4;  32  Am.  Rep.  'J9      .        .        .         .  455 

Burden  of  Proof .     State  v.  Craicford,  II  Kas.  o2 459 

Burden  of  Proof — Drunkenness  —  Hereditary  Insanity — Insanity  in  Rela- 
tives—  Evidence.    People \.  Garbutt,  17  Mich.  0 4G3 

Burden  of  Proof  —  Test  of  Insanity  —  Moral  Insanity.     Cunningham  v.  State, 

5(J  Miss.  2(iU;  31  Am.  Rep.  3G1 470 

Flurden  of  Proof  —  Test  of  Insanity.     Wright  v.  People,  ^'iHah.  \01  .  .477 

Burden  of  Proof  on  Prosecution.     State  v.  Bartlett,  43  N.  II.  224    .  .  .480 

Burden  of  Proof  on  Prosecution.    People  v.  McCann,  IG  N.  Y.  58  .  .  490 

Burden  of  Proof  on  Prosecution.     O^  Connelly.  People,  87  N.  Y.  377  .  .  499 

Burden  of  Proof  —  Tost  of  Insanity  —  Experts  —  Hypothetical  Case  —  Charge 

of  Court  —  Plea  of  Insanity.     Doue  v.  (S'fafc,  3  Ileisk.  348      .        .        .602 

NOTES. 


Skctiox  29.  Presumption  of  Sanity 

29a.  Burden  on  Prisoner  —  First  Theory  . 
29&.  Burden  on  Prisoner  —  Second  Theory 

30.  Alabama 

31.  Arkansas 

32.  California      . 

33.  Connecticut 
;14.  Georgia 

35.  Iowa 

36.  Kentucky 

37.  Louisiana 
88.  Maine     . 

39.  Massachusetts 

40.  Minnesota 

41.  Missouri 

42.  North  Carolina 

43.  Ohio      . 

44.  Pennsylvania 


513 
513 
514 
514 
514 
514 
51G 
51G 
51G 
517 
517 
517 
517 
518 
518 
618 
618 
620 


TAHLE   OF    C<X\TK\TS. 


45 

Virprinia 

4f; 

West  \'ir;riiiia      .... 

47. 

English  Rule 

48. 

Burden  of  Proof  mi  Prosecution  —  Third  Tlicory 

49. 

Illinois           .... 

50. 

Indiana         ... 

51. 

Kansas 

62. 

Michigan 

68. 

Mississippi 

64. 

Nebraska      .... 

55. 

New  Ilampshin' 

6(;. 

New  York 

67. 

Tennessee 

58. 

Texas    . 

xiiii 


PAGE. 
.  521 
.  521 
.  522 
.  525 
.  o2(J 
.  02(5 
.  527 
.  527 
.  527 
.  527 
.  527 
.  52!) 
.  531 
.  632 


CHAPTER    111. 

DlUXKKXNKSS. 

Drunkenness  no  Excuse  -  Burden   of    Proof.    McKemiev.  State,2i>  Av^^. 
335    . 

533 

Drunkenness -Voluntary  Drunkenness  no  Excuse -Particular  Ri-ht  and 
VVrong  Test  -  Oinoraania-  Moral  Insanity  -  Evidence  -  Starements 
of  Prisoner -Reputation -Order  of     Proof  -  Experts  -  Opinions 
Choice  V.  State,  31  Ga.  424 

Voluntary  Drunkenness  does  not  Mitigate  Crime.     Shannahan  v.  C(y,n  ,  8 

Bush,  413;  8  Am.  Rep.  4G5      ....  ktt 

Voluntary  Intoxication  no  Defence.    Kenny  v.  People,  31  N.  Y.  330      .        .  5C2 

Intoxication  no  Defence  —  Madness  Produced  Thereby.    Bennett  v   State 

Mart.  &  Yere.  133    ,        .  '  '  ^>, 

5/1 

Drunkenness  — No  Aggravation  of  Crime  —  Degree  of   Murder.    Haile  v 

State,  li  Humph.  154        ,        .  '  .-„ 

.  oio 

Drunkenness- Intoxication  and  Mental  Unsoundness.    Beasleu  v   State  50 

Ala.  149     ...  ,.., 

5<7 

Intoxication  of  Infuut.     Com.  v  French,  Thatch.  Cr.  Cas.,  1<;3      .        .  531 

Drunkenness -Insanity   Resulting  Therefrom.     Cornwell  y .  State,  Mart  & 

''^'--   ''' ■    .  583 

Intoxication  — In.sanity   Resulting  Therefrom— Test  of  Insanity  — Partial 

Insanity.     Carter  v.  State,  12  Tex.  500  .        .  '  -00 

Intoxication  — Insanity  Produced  Thereby  —  Burden  of  Proof —  Premedita- 
tion and  Deliberation.    BosweWs  Case,  20  Gratt.  8(J0  .        .        .  592 

Drunkenness  -  Insanity  Resulting  Therefrom.     U.  S.  v.  Drexo,  6  Mason,  28  601 


T 


XllV 


TABLE    OF    CONTENTS. 


I'AGE. 

lutoxicatiou  —  Murder  in  First  Degree  —  Doliberat'ou  —  Test  of  Insanity  — 

ICvitiencc.     ,Slale  v.  Johnson,  40  Conn.  lUo (JOi! 

Degrees  of    Murder  —  Intoxieation  —  Malice  —  Implied    Malice.     State  \. 

Johnson,  41  Couu.  585 (;01i 

Drunkenness  —  Degrees   of   Murder  —  Provocation.    Johnson  v.  Slate,  29 

Ga.  5;i4 Oil' 


Drunkenniss  Does  not  Mitigate  Crime  —  Irrelevant  on  Question  of  Degree. 
.state  V.  Cross,  27  Mo.  322 


61!' 


Intoxication  —  Relevant  on  Question  of  Premeditation,  etc.  —  Insanity  Re- 
sulting frouj  Druukonness.    People  v.  Ro'jers,  18  N.  Y.  !»     .        .         .  G25 

Intoxication  —  Degrees  of  Murder.    Jones  v.  Com.,  75  Pa.  St.  403       .        .  (j38 

Drunkenness  —  Degrees  of  Murder.     Swan  v.  State,  4  Humph.  13G       .        .  G43 

Druukcuross  —  Degrees  of  Murder  —  Premeditation  — Deliberation  —  Man- 

.f.er.     Pii'tlex.  State, 'd  llamph.  {}ii'o 045 

Drur  —  Degrees  of  Murder  —  Deliberation  —  Premeditation.     Cart- 

loright  v.  State,  8  Lea.  377 653 

Drui.keniiivis — ,)    .-ocs  of  ^lurder  —  Need  not  be  "  Excessive  "  to  bean 

Exc(u^^..     Luncos'er  v.  State,  2  Lea,  575  ......  058 

Intoxication  —  When  Not  Relevant  to  Degree  of  Crime.     State  v.  Tatro,  50 

Vt.  483 600 

Intoxication  — Degrees  of  :Murder.     Jloptx.  People,  104  U.  S.  031        .        .  004 
Intoxication  —  Not  Relevant  on  Question  of  Malice.    Xicholsw  State,  8  Ohio 

St.  435 (107 

Intoxication  —  When   an  Excuse  —  Bui'deu  of    Proof  —  Rational  Doubt  — 

Moral  Insanity  —  Test.     *S'/;iWi  v.  Com.,  1  Duv.  224 069 

Drunkenness  may  Reduce  Grade  of  Crime.     Blimm  v.  Com.,  7  Bush,  320    .  075 

Intent  —  Drunkenness  Relevant  on  Prosecution  for  .Vssault  with  Intent  to 
Commit  Rai)e  —  Erroneous  Instructions.  State  v.  Donovan,  10  N.  W. 
.Rep.  20(; 078 

Larceny  —  Intent  —  Drunkenness.     Wood  v.  State,  34  Ark.  341 ;  30  Am.  Rep. 

13 • 080 

Drunkenness  —  .Vdmissible  on  Question  of  Intent.    State  v.  Bell,  29  la.  310  082 

Drunkenness  —  Relevant  on    Question   Whether    Crime   was    Committed. 

Scott  v.  State,  12  Tex.  (App.)  31     .        .        .        ■        .        .         .        .680 

Intoxication  —  Intent  —  Insanity.    i2o&er<s  v.  People,  10  Mich.  401        .        .087 
Intoxication  —  Intent  —  Larceny  —  Instructions.    People    v.   Cnmmins,    47 

Mich.  334 695 

Intoxication  —  Voting  Twice  at  Election  —  Intent  —  Drunkenness  No  Ex- 
cuse.    State    Welch,  21  Minn.  22 097 

Voting  Twice    at    ■'^''^  Jon  —  Intent — Drunkenness  Relevant.    People  v. 

Harris,  29  Cal.  078 701 


TABLK    OF    CONTENTS. 


xlv 


Intoxication -Relevant  on  Question  of  Intent  .n.i  Malice.    KrW,  .f  Litu'.y'''' 
V.  Stale,  ;;  S.  &  M.  518      . 

70(1 

Intoxication -Intent -Larceny.     Wentz  Stale,]  Tex.  CAi)p.)  ;5.j  708 

'"^"'iri?^;^'"'"" "' '''''"'" '° ''"'"'"'  ^"'■"■"^•-  ^'^«"«  -  ««'^ ' 

Intoxication -Provocation -l)e!,n'ee  of  Crime.     Keenau   v.   Co.,.,  4^   P.     '   " 
ot.  00  .  .  ,  _  ?  i  . 

"'""'^liorsS  !^''''."^  Counterfeit  Bill  -  Knowledge.     Pig^nan  v.  ,S-*«.e,  u'  '^ 

Drunkenness -Provocation -When  Evidence  of  Intoxication  to  l^eCn-    " 
bulereU.    State  v.  McCants,  1  Spears,  ;!84       .        .  -.,^ 


SiTTiox  50 


People.  V.  Robimoii 


NOTES. 
.  Drunlvcnness  no  Excuse  for  Crime 
00  Intoxication  no  Excuse.    Fiieni  v.  People 

ib)  Drunkenness -Homicide -Insanity.     People  v.  liobinson 
in  the  Trial  Court      ... 

(c)  Drunkenness  —  Homicide  —  Insanity 

on  Appeal 

(d)  Voluntary  Intoxication.     State  v.  Thompson 

(e)  Perjury  —  Intoxication  no  Defence.    People  v.  Willey 
(/)  Blasphemy  — Intoxication  no  Defence.    Penple\  Porter 
(fir)  Arson  -  Intoxication  no  Defence.    People  v.  Jones 

<iO.  Does  Drunkenness  Aggravate  an  Offence 
(Jl.  Exceptions  to  the  Rule  .... 

02.  Insanity  Produced  by  Intoxication 

03.  Degrees  of  Murder  -  Premeditation  and  Deliberation 

04.  Relevant  on  Question  of  Intent 

05.  Drunkenness  — Knowledge   .... 
00.  Drunkenness- Relevant  to  Explain  ThrcatL 

07.  Drunkenness-  Relevant  on  Question  of  Provocation 
(.8.  Drunkenness  — Relevant  on  Question  of  Self-Defence 
00.  Drunkenness  Created  by  Another  to   Cause  Prisoner  to 
Perpetrate  the  Criin^'  .         . 


738 

739 

743 

744 

745 

745 

745 

747 

747 

754 

758 

705 

700 

707 

707 

7(;8 


CHAPTER  IV. 

liLEPTOMANIA,    SOMNAMBULISM,    KTC. 

Kleptomania  -  Charge   must    be    Specially    Directed    to    Defence    Made 
Looneij  v.  State,  10  Tex.  (App.)  5'>0 

.Somuamlmlis>n  -  llo.nicide  -  Responsibility  for  Unconscious  Act".    Fain  v.  '  '"^ 
om.,  I     vy.  I80 ^^^ 


xlvi 


TABLE  OK  CONTENTS. 


NOTES. 

SixTiON.  70.  Monomania — Kk|>tomaniii  —  Stealinn    Shoos  —  To 
sanity        ...... 

71.  Soninauibulism 

72.  Use  of  0|.iiiiii 

To.  Erotomania 

74.  Person  of  Low  Mi'iital  f'ap.iiity  . 

75.  Otlier  Cases 


St    of    III 


AtiK. 

77;i 

782 
782 

782 
782 
78o 


CHAPTER  V. 


Evidence  and  Practice. 

Insanity  mnst  he  Clearly  Shown  —  Evidence  of  Excitement.     State\.  Gmviotte, 

22  La.  Ann.  587 785 

Adultery  of    Wife — When   Evidence   Admissible  —  Drunkenness — Insane 

Delusion  —  Declarations.     State  \.  John,  S  Ivtsd.  {L.)  SoO    .        .        .787 

Evidence  —  Adultery  of  Wife  of  Prisoner  —  Insanity  Should  not  be  Inferred  — 

Caution  to  Jury.     ASaioyer  \.  JStutc,  iio  Ind.  80 T'.tO 

Evidence  —  .Acts  and  Declarations  of  Prisoner  —  Insanity  must  Exist  at  time 

of  Act.     iState  v.  Hays,  22  La.  Ann.  SH 797 

Evidence  of  Subsequent  Acts  and  Conduct.     Com.  v.  Pomeroy,  117  Mass.  143  7W) 

Evidence  —  Temper  of  Prisoner  —  Fits  of  Passion  —  Eccentricities  —  Con- 
duct of  Trial  —  Remarks  of  Judge.     Sindram  v.  People,  88  N.  Y.  11)6  802 

Right  of  Jury  to  Consider  Prisoner's  Appearance  on  the  Trial.    Bowden  v. 

People,  12  Hun,  85 807 

Evidence  —  Irrelevant  on  Question  of  Responsibility  —  Declarations  of  De- 
ceased —  Drunkenness  —  I)elil)eration.     Warren  v.  Com.,  37  Pa.  St.  45  SO'J 

Evidence  of  Acts  Showing  Sanity.     U.  S.  v.  Shults 813 

Delirium  Tremens  —  Temporary   Insanity  —  No  Presumption  of   Continu- 
ance—  Test.     State  \.  tSeioell,  S  Joima  {L.)  2i5 8K1 

Hereditary  Insanity  —  Evidence  must  be  Notorious.     State  v.  Christmas,  G 

Jones  (L.)  471 820 

Evidence  —  Murder  by  Poison  —  Present  Insanity  —  Jury  Trial  not  of  Right. 

Laros  v.  Com.,  84  Pa.  St.  200 824 

Evidence  —  Mental  Condition  of  Relatives.    Hagan  v. /Sfafc,  5  Baxt.  015      .  833 

Special  Charge  —  Burden  of  Proof —  Experts  —  New  Trial.     Wehh  v.  State, 

9  Tex.  (App.)  491 835 

Charge  Must  be  Specially  Directed  to  Defence  Made  —  Delirium  Tremens  — 

Test.     Jffrtom  v.  *S'to(e,  lOTex.  (App.)  700 845 


rAGK. 


.  785 

isanc 

.  787 

ed  — 

.  7!)0 

time 

.  797 


TABLE   OF    CONTEXTS. 


xlvii 


NOTES. 


)f  111-           f 

Skction  7(1 

.  77:t        i 

77 

.  78-J 

78 

.  782 

71t 

.  782 

.  782 

80 

.  78a 

81. 

84. 
85. 


Barbarity  of  Crime  does  not  Raise  Presumption  of  Insanity 
wulence  of  Wife's  Adultery  Relevant,  Whon 
Declarations  uot  lies  Gestce  luaUmisslblo 
Confidential  Conversation  between  Husband  and  Wife -Tes 

imony  as  to  Insanity  not  Within  the  Rule 
Evidence  of  Acts  and  Conduct  at  Other  Tinier  '         ' 

Insanity  Cannot  be  Proved  by  Reputation         '        '        '        ' 

82.  Previous  and  Subsequent  Insanity  '        '         "        ' 

82  «.  Continuance  of  Insanity -Presumption 

83.  Evidence  of  Insanity  in  Relatives        .  '  '        " 
Character      ...                                          "         '         '        • 

Specific  Acts  of  Insanity  need  not  Ije  Shown      '        '        '        ' 
80.  Proof  of  other  Crimes  ...  '        '         "        ' 

87.  Testimony  on  Former  Trial  '         '        ' 

88.  Pleading  — Trial    ...''■'■• 
8!).  iiight  to  Open  and  Close 

SO.  Judge  need  not  Specially  Define  the  Variou"s  Types  of  Ins'mitv'  hIt 
!»1 .  Duty  to  Instruct  on  Insanity  Ple-v  m^aiuty.  8m, 

02.  Jury  may  be  Cautioned  as  to  Insanity  Plea        "        "        '        *  It'- 
93.  Insanity -Finding  of  Jury  Conclusive  '        '        "  " 

'"•  ""ZnlT' -'"'''''  ^^^'^^^^"^^■''  I^vidence- Cumulative  Evii  '"' 
H.^a,  Of  Application  for  Continuance  -  Evidence  not  Cumu:  ''' 

"•  ''Sn;:s:if  "'^-^:-^""^^"-'>^p---ountsof  ^--ity 

98.  Habeas  Corpus  — Ball  '        •        ■        •        •        .  872 

99.  Appeal   .         .         .  '         '         '  '         •         •         •  874 

100.  Opinions  on  Insanity  — Experts         '■■■■■  ST8 


.  85t; 

.  857 
858 

858 
85!i 

sen 
8t;o 
8(;i 

8(U 
805 
8(i5 
8G5 
8(U; 

sac, 
8(]r, 


!t5. 


m. 


871 


.  820 

t. 

.  824 

.  833 

.  835 
.  845 


CHAPTER    VI. 
Insanity  at  Trial  ou  after  Conviction 

897 


xlviii 


TAllLE   OF   CONTENTS. 


PAOE. 


Insanity  at  Trial  — Proouiluro  — Riuht  of    Trisonor   to  Wulvo    Question. 
A'tute  V.  I'attcn,  10  La.  Ann.  2!i'J DOI 

In.sanlty  After  Conviction  —  Where  Jnclgo  i.s  Satisfied  of  Sanity  Jury  Un- 

uecessury.    Bonds  v.  imitate,  Mart.  &  Very.  14;];  17  Am.  Dec.  7it5  .  !(04 

In.sanlty  after  Conviction  —  Kvklence  — Certiorari.     Spnnn  v.  State,  47  Ga 
54!)     .... 


not; 


Insanity  at  Time  of  Trial  —  Issue  -  Evidence  —  I'lea  of  Not  Guilty.     People 

V.  Farrell,  31  Cal.  570 f,09 

Insanity  at  Trial  — Effect  of  Disclmrsiny  Jury  — "Once   in  Jeopardy." 

Grnljer  \.  State,  3  W.Vii.  t\W c,j.> 


NOTES. 

Skltion  101.  Insane  Person  Cannot  be  Tried 
102.  Deaf  and  Dumb  Person     . 
ion.  In.sanity  After  Verdict  or  Judgmoni 
104.  Contlnement  of  Insane  Criminals 


.  91(5 

.  'JIS 

.  1)1!) 

.  1)19 


THE  ADJUDGED  CASES 


ON 


INSANITY  AS  A  DEFENCE  TO  CRIME 


^VLTIL    NOTES. 


CHAPTER    I. 

THE   LEGAL  TEST  OF  INSANITY. 


TEST  OF  INSANITY- DEMENTIA -RESPONSIBILITY. 

State  v.  Richards. 

[39  Conn.  591.] 

rn  the  Superior  Court  of  WinUkam  County,  Connecticut,  August  Term 

1873.  ' 

Before  Hon.  Origen  Storks  Seymour. 
Dementia. -Test  of  Reaponslbmty  for  Crim«      An       .      , 

pica  Of  not  juy,  bo/o^  trrr^t/r,::?.'"^?  r 

ot  the  case,  .^TZLl.  -  '     '''  "'"'' """"'^""y  »'»'^'  t""  '""» 

JTDGE  SETOOUR'S   CHARGE 

tamed  mainly  to  the  question  whether  r«;,  ,  "''""°''  ■""  ^"•^ 

-  '-t  eh.,e.  a'na  thi.  ^Z^^^ZZ^l^Z: 

O) 


TMK    LKdAL    TKST    or    INS  A  MTV 


Stiito  V.  lliclianl.H. 


whether  the  iiecused  hiis  sullicieiit  nuMilal  capacity  to  warrant  ua  in 
imputing  to  him  ii  feh)nious  intent. 

TJKit  ho  is  eonHiderably  below  par  in  intellect  is  apparent  to  us  all. 
This  is  indicated  by  his  coiintonance  and  general  a|>pcnrance.  The  same 
thing  is  indicated  by  his  extraordinary  conduct  at  the  lire,  r  tianics 

were  bursting  out  he  was  fleen  on  all  fours  crawling  back  from  under  the 
burning  barn,  with  no  clothing  ui><)n  him  except  his  shirt  and  trowsers. 
The  day  was  excessively  cold.  He  remained  some  half  hour  thus 
scantily  clothed,  gazing  stolidly  at  the  blaze,  until  oidered  into  the 
house.  All  this  U^k  place  in  broatl  daylight,  in  plain  view  of  Mr. 
Gallup's  house. 

But  it  is  undoubtedly  true,  as  the  attorney  tor  the  State  contends,  that 
mere  inferiority  of  intellect  is  no  answer  to  the  prosecution.  We  are, 
therefore,  called  upon  in  this  case  to  decide  an  interesting  and  ditllcult 
question,  to-wit,  whether  the  accusetl  has  sullicient  mind  to  be  held 
responsible  as  a  criminal. 

He  is  not  a  mere  idiot,  nor  does  he  appear  to  be  a  lunatic.  He  suffers 
from  want  of  mind  rather  than  from  derangement  or  delusi'  and  the 
question   is   whether  the  want  of   mind  is  such  as  to  en  him  to 

ac(iuittal  on  the  ground  of  what  in  law  is  termed  dementia. 

This  in(iuiry  is  attended  with  inherent  dilliculties.  Our  knowledge 
of  our  own  minds  is  imperfect;  our  knowledge  of  the  precise  mental 
condition  of  another  is  necesf^arih'  still  more  imperfect.  We,  as  triers, 
are  obliged  to  rely  upon  the  evidence  furnished  us  by  witnesses  whose 
means  of  knowledge  are  limited  and  who  find  great  difficulty  in  com- 
municating to  us,  on  a  subject  of  this  nature,  what  they  do  know. 

Our  principal  embarrassment  arises,  however,  from  the  want  of  a  defi- 
nite measure  of  mental  capacity.  Eminent  judges  and  learned  com- 
mentators have  attempted  to  furnish  rules  and  tests  for  the  guidance  of 
triers  of  cases  of  this  kind  ;  but  upon  examination  these  rules  and  tests 
turn  out  to  be  imperfect  and  unsatisfactory. 

It  was  formerly  thought  that  the  jury  might  properly  convict  if  the 
accused  had  any  sense  of  right  and  wrong,  or  if  he  was  aware  that 
punishment  would  follow  the  commission  of  an  offence.  But  children 
of  very  tender  years  have  some  sense  of  right  and  wrong,  and  fully 
understand  that  punishment  will  follow  transgression.  Such  children 
are  subjected  by  their  parents  to  discipline,  and  are  by  gentle  punish- 
ments restrained  from  wrong-doing ;  but  our  sense  of  humanity  would 
be  greatly  shocked  at  the  thought  of  subjecting  children  to  the  penalties 
of  statute  law  because  some  sense  of  right  and  wrong  and  fear  of  pun- 
ishment had  been  developed  in  them.     So,  again,  it  is  often  said  in  the 


1)0' 


IJKSI'ONMIUI.ITY    OF    CIIILDUKN. 


8 


Lord  ILilo's'IVst. 


bonks  tlint  ft  iMT-^nn  is  ti)  l»o  dfoincd  rospoiisihle  fnr  crime  if  he  imdr-r- 
stamls  tlic  coiiscfiuoiiccs  ami  cflVcts  of  tlie  sict  laid  to  liis  cluirLto.  'I'iiis 
JH  umloulttedly  and  oUvioiisly  true  if  he  lias  siicji  tinderstaiiilinpf  :uid 
;i[)preciation  of  eonaequi'nces  as  pertain  to  otlmr  men.  But  if  In-  li.is 
leas  of  it  tlian  is  ooinmon  to  nu'U  in  genorid,  how  luueli  less  must  it  hv 
to  escape  ri'sponsiliiiitj'? 

I  think  the  accused  liacl  some  kiiowlodn;e  of  the  consequcnr-cs  of  hin 
ads.  He  pr(jl»al)ly  knew  tl»!i^  by  ij^iiilinfj  ji  niatfli  nnd  tluctwin^  it  into 
a  hay  mow  a  lire  would  b<;  kin  Ued,  and  tluit  tlie  barn  wpuld  thereby  be 
consumed.  lie,  perhaps,  also  liad  some  appreciation  of  tlie  loss  and 
di'struction  of  property  whicii  would  ensue. 

But  I  am  ntjt  willing  to  say  tliat  some  knowledge  of  o<^)nsoquence<», 
liowever  faint  and  imperfect,  is  sullicicnt  to  warrant  you  in  convieiing 
the  prisoner.  I  can  give  you  no  precise  i*ule ;  but  I  think  it  clear  tliat  if 
the  prisoner's  perception  of  consequences  and  effects  was  only  sucli  as 
is  common  to  cliildren  of  tender  years  in-  ought  to  be  acquitted.  And 
this  leads  me  to  refer  to  the  rule  adopted  by  an  eminent  Knglish  judge, 
Lord  Ilaie.  He  reasoned  that,  inasmuch  as  chiMrcn  under  fourteen 
years  of  age  are  }')n'ma  facie  incapable  of  crime,  imbeciles  ought  not  to 
be  held  responsil)le  criminally  unless  of  capacity  equal  to  that  of 
ordinary  children  of  that  age.  If  this  test  be  adopted  the  prisoner  will, 
upon  the  testimony,  be  entitled  to  an  acquittal.  The  principal  witnesses 
for  the  prosecution  say  that  he  is  inferior  in  intellect  to  children  of  ten 
yoais  of  age,  and  several  very  intelligent  witnesses  for  the  defence 
testify  that  they  are  acquainted  with  many  children  of  six  years  who 
are  his  superiors  in  mental  capacity. 

I  am  inclined  to  recommend  Lord  Hale's  rule  to  j'our  adoption,  not, 
however,  without  qualifications  which  I  think  it  important  to  observe. 
And  first,  this  test,  like  all  others  which  I  know  of,  is  imperfect. 
Probably  no  two  of  us  have  the  same  idea  of  the  capacity  of  children 
of  fourteen  years  of  age,  and  then  there  is  this  further  difficulty,  that 
there  can  be  no  accurate  comparison  in  detail  between  the  healthy  and 
piopctly  balanced,  though  immature,  mind  of  a  child,  and  the 
unhealthy,  abnormal  and  shrivelled  intellect  of  an  imbecile.  The  com- 
parison therefore  is  only  of  the  general  result  in  their  respective  appre- 
ciation of  right  and  wrong  and  of  consequences  and  effects. 

This  further  consideration  ought  also  to  be  borne  in  mind,  that  though 
in  modern  times  persons  under  fourteen  are  seldom  subjected  to  the 
penalties  of  the  criminal  code,  yet  in  law  children  between  seven  and 
fourteen  may  be  subjects  of  punishment  if  they  are  shown  to  be  of 
sullicient  capacity  to  commit  crimes.  In  applying  Lord  Hale's  rule, 
therefore,  the  child  to  be  taken  as  a  standard,  ought  not  to  be  one  who 


THE    LEGAL   TEST   OF    INSANITY. 


Bovard  v.  State. 


has  had  superior  advantages  of  education,  but  should  rather  be  one  in 
humble  life,  with  only  ordinary  training.  And  after  all,  gentlemen,  you 
see  that  I  can  furnish  you  with  no  definite  measure  of  mental  capacity 
to  apply  to  the  prisoner.  The  whole  matter  must  be  submitted  to  your 
sound  judgment.  You  will  say  whether  the  prisoner  has  such  knowl- 
edge of  right  and  wrong,  and  such  appreciation  of  the  consequence  and 
effects  of  lii3  acts,  as  to  be  a  proper  subject  of  punishment.  Opinions 
on  this  subject  have  been  expressed  by  most  of  the  witnesses  who  have 
testified.  These  opinions  depend  for  their  value  mainly  upon  the  facts 
with  which  they  are  connected.  You  have  the  advantage  of  being  able 
to  compare  with  each  other  all  the  facts  which  have  been  bnniglit  to 
your  notice  bearing  upon  the  prisoner's  mental  condition.  You  will 
look  carefully  at  all  these  facts.  The  history  of  the  prisoner's  life  is 
somewhat  significant.  From  early  childhood  it  has  been  spent  in  alms- 
houses, subjected  to  constant  constraint.  In  the  most  ordinaiy  acts  of 
his  life  he  has  been  governed  by  the  superior  will  of  others  to  whose 
care  he  has  been  committed.  He  has,  it  appears,  been  seldom  left  to 
the  free  guidance  of  his  own  judgment.  "When  so  let  t,  he  seems  to  have 
acted  without  forecast,  under  the  pressure  of  immediate  wants  and 
impulses. 

If  you  acquit  the  prisoner  on  the  ground  of  want  of  mental  capacity 
you  will  so  say  in  your  verdict,  in  order  that  the  prisoner  may  in  that 
event  have  the  benefit  under  our  statute  of  a  home  where  he  will  be 
kindly  cared  for,  but  kept  under  such  restraints  as  to  prevent  his  doing 
injury  to  the  persons  or  property  of  others. 

[The  jury  acquitted  the  prisoner,  stating  in  their  verdict  that  the 
acquittal  was  on  the  ground  of  want  of  mental  capacity.] 


TEST  OF  INSANITY.  — ACT  MUST  BE  RESULT  UF  INSANITY  TO  BE 
EXCUSABLE  — BARBARITY  OF  ACT  NO  PRESUMPTION  OF  IN- 
SANITY. 

Bovard  v.  State. 

[30  Miss.  600.] 

In  the  High  Court  of  Errors  and  Appeals  of  Mississippi,  April  Term, 

1856. 


Hon.  COTESWORTH  P.  SMITH,  Chief  Justice. 
"     Ephraim  S.  Fishkr,       ) 
"     Alexander  H.  Handy,  ) 


Associate  Justices. 


1.  The  Law  Presumen  Every  Man  to  h^  Sane,  until  the  contrary  is  proven. 

2.  Particular  Rifrht  and   Wrong  Test. —If    the  Jury   believe,   from    the   evidence 

tiiiit  tlie  accused  killed  the  deceased  with  mulice,  iind  not  in  necesBiiry  self-defence, 


BOVAIiD    V.  STATK 


Statement  of  Case 


doing 


Term, 


he  is  Ruilty  of  irmnler,  notwitlistanrUnp  they  may  believe  he  wns,  at  the  time  of  com- 
mitling  ihe  deeil,  laboring  under  partial  insanity,  unle.-is  he  was,  from  siicli  insaiiiiy 
incapable  of  unlerstan'lint;  tlie  nature  and  conseipience  of  his  act,  and  of  kuowiug 
that  it  was  wronj:,  and  that  he  would  be  punished  for  it. 

3.  Same. —Insanity,  however  produced,  constitutes  no  excuse  for  crime,  unless  it  be  so 

great  as  to  deprive  tlie  parly  of  his  jiower  to  UTiderstan<i  the  nature  of  ins  act,  or  of 
his  ability  to  distinguisli  Iietween  right  and  wrong,  and  of  his  ability  to  understand  Ibat 
he  will  be  liable  to  ])unishment  if  he  commits  it. 

4.  Act  Must  be  the  Result  of  Insanity.  —  Though  a  iiaity  l)e  jiartially  insane,  yet  ho  is 

responsible  for  his  criminal  acts,  unless  it  appeal-  that  he  was  prompted  or  in^iigated 
by  his  madness  to  perpetrate  such  act. 

5.  Barbarity  of  Act  no  Presumption  of  Insanity.  —If  the  homicide  charged  is  proven 

in  the  opinion  of  tlic  jury,  the  barbarity  of  tlie  act  affords  no  legal  presumption  of  in- 
sanity in  the  accused. 

Ennou  to  Yazoo  Circuit  Court,  IIexky,  J.     Young  C.  Bovard,  the 

plaintiff  in  error,  was  indicted  in  tlie  Circuit  Court  of  Y'azoo  County 

for  the  murder  of  liis  wife,  on  the  20th  da}-  November,  1855,  and  wa* 

onvicted.     Tlie  defence  relied  on  was,  that  the  act  of  homicide  was 

committed  whilst  the  prisoner  Avas  insane. 

The  opinion  of  the  court  contains  the  facts  of  the  case. 

John  M.  Moore,  for  plaintiff  in  error,  cited  and  commented  en 
Com.  V.  JRogers,^  State  v.  Gardiner,-  State  v.  Spencer.^ 

D.  C.  Glenn,  Attorney-General,  argued  the  cause  orall}'. 

Sjiitii,  C.  J.,  delivoi'ed  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  and  tried  in  the  Circuit  Court  of 
Yazoo  for  the  murder  of  his  wife.  No  question,  whatever  was  raised 
as  to  the  fact  of  homicide,  or  the  agency  of  the  accused  in  the  com- 
mission of  the  deed.  The  defence  was  placed  solely  on  the  ground  of 
insanity,  and  the  jury  found  the  prisoner  guilty  of  the  charge.  A  motion 
was  made  to  set  aside  the  verdict,  and  for  a  new  trial.  The  grounds 
upon  which  the  motion  was  based  were,  first,  misdirection  in  the 
charges  to  the  jury ;  and,  second,  that  the  verdict  was  contrary  to  law 
and  evidence.  The  same  reasons  are  now  urged  as  a  ground  for  revers- 
ing the  judgment. 

In  support  of  the  first  ground  it  is  insisted  that  the  third,  fourth,  and 
fifth  instructions  for  the  State  are  erroneous,  inasmuch  as  they  "  do  not 
properly  and  fully  explain  the  legal  consequences  of  insanity,  and  lay 
down  rules  for  the  guidance  of  the  jury,  under  which  the  accusefl 
might  be  convicted,  although  proved  by  the  evidence  to  have  been  in- 
sane at  the  time  the  alleged  offence  was  committed." 

The  only  questions  which  could  properly  arise  upon  the  evidence  be- 


uvidence 
Idefence, 


'  7  Mete.  500. 

"  Wright  (Ohio  U.)  302. 

^  21  N.  J.  (L.)  424  ;  1  Greenl.  Ev.,  Par  42 ; 


Ray, Med.  Juris. 413;  ICopeland,  Dictionary 
of  Medicine,  572;  1  Cycloiiajdia  of  Practical 
Medicine,  587. 


6 


THE   LEGAL   TK8T    OF    INSANITY. 


Bovard  v.  State. 


fore  the  jury  were,  first,  whether  the  accused  labored  under  a  mental 
derangement  of  his  moral  and  intellectual  faculties ;  second,  whether 
he  was  affected  with  partial  mania,  accompanied  with  a  delusion  which 
was  connected  with,  or  embraced  in,  the  circle  of  its  operation,  the  act 
with  which  he  was  charged  ;  and,  third,  if,  by  the  proof,  he  was  shown 
to  have  been  either  generally  or  partially  insane,  whether  the  insanity 
was  of  such  a  character  as  to  absolve  him  from  responsibility  as  a 
moral  ngent. 

A  person,  in  the  estimation  of  the  law,  to  be  capable  of  the  commis- 
sion of  a  crime,  must  have  intelligence  enough  to  ha've  a  criminal 
intent  and  purpose ;  and  if  his  mental  capacity  is  either  so  deficient 
that  he  has  no  conscience,  nor  will,  nor  controlling  mental  power  over 
his  actions ;  or  if,  through  the  access  of  mental  disease,  his  intellectual 
power  is,  for  tlie  time,  completely  suspended,  he  is  not  to  be  regarded 
either  as  a  moral  agent,  or  punishable  by  the  law  for  his  acts. 

Cases  of  insanity  of  such  extreme  character  as  these  are  not  easily 
mistaken.  And  it  is  not  to  be  controverted  that  the  prisoner,  as  shown 
by  the  evidence,  was  not  so  totally  deprived  of  conscience,  will,  or  men- 
tal control  over  his  actions,  or  that  his  intellect  and  capacity  were  not 
so  utterly  deficient  as  to  be  incapable  of  entertaining  a  criminal  pur- 
pose. But,  in  cases  of  partial  insanity,  where  the  mind,  though  capable 
of  memory,  of  reasoning,  and  of  judgment,  is  clouded  and  weak- 
ened, or  so  perverted  and  influenced  by  insane  delusions  as  to  be  com- 
pelled, as  it  were,  to  act  under  false  impressions  and  influences,  the 
rule  of  law,  as  it  is  now  generally  understood,  is  laid  down  by  Chief 
Justice  Shaw  as  follows:  "A  man  is  not  to  be  excused  from  responsi- 
bility if  he  has  reason  and  capacity  sufficient  to  enable  him  to  distin- 
guish between  right  and  wrong  as  to  the  particular  act  he  is  then  doing, 
a  knowledge  and  consciousness  that  the  act  he  was  doing  is  wrong  and 
criminal,  and  will  subject  him  to  punishment.  In  order  to  be  responsi- 
lile,  he  must  have  sufficient  power  of  memory  to  recollect  the  relation 
in  which  he  stands  to  others,  and  in  which  others  stand  to  him ;  that 
the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice  and  right, 
and  injurious  to  others,  and  a  Aiolation  of  the  dictates  of  duty.  On 
the  contrary,  although  he  may  be  laboring  under  partial  insanity,  if  he 
still  understands  the  nature  and  character  of  his  act  and  its  conse- 
quences; if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a 
mental  power  sufficient  to  apply  that  knowledge  to  his  own  case,  and  to 
know  that,  if  he  does  the  act  he  will  do  wrong  and  receive  punishment ; 
such  partial  insanity  is  not  sufficient  to  exempt  him  from  responsil)iIity 
for  criminal  acts."' 

I  Com.  V.  Rogeiii,  7  Mete.  ."iOO. 


BOVAHI)    r.  STATE. 


Acts  of  Prisoner  Showing  Insanity. 


t  easily 
3  shown 
or  tnen- 
rcre  not 
lal  pur- 
capable 
weak- 
e  corn- 
ices, the 
y  Chief 
sponsi- 
distin- 
doing, 
ng  and 
sponsi- 
elation 
;  that 
right, 
,     On 
,if  he 
conse- 
,  and  a 
and  to 
Ihroent ; 
sibility 


Without  quoting  the  instructions  to  which  exception  is  taken,  or 
noticing  them  in  a  more  special  manner,  it  is  sufficient  to  state  that  tlie y 
contain,  in  very  distinct  and  intelligible  terms,  the  rules  Itid  down  bv 
the  learned  judge  in  the  charge  from  which  we  have  quoted  above.  In 
our  opinion,  therefore,  there  was  no  error  committed  in  giving  the 
instructions  whicli  were  requested  in  behalf  of  tlie  prosecution.  Nor 
io  we  tliink  there  was  error  in  withholding  either  of  tlie  instructions 
which  were  requested  by  the  prisoner  and  refused  by  the  court. 

The  remaining  ground  upon  which  reversal  of  the  jud<rment  is  claimed 
is,  that  a  motion  for  a  new  trial  was  improperly  ruled.  The  question  thus 
presented  must,  of  course,  be  determined  by  the  evidence  submitted  to 
the  jury,  and  we  will  proceed  to  notice  such  of  the  facts  established  by 
the  testimony  which  tend  to  i)rove  or  disprove  the  insanity  of  the 
accused. 

Tlie  homicide  was  committed  on  the  night  of  the  20th  of  November, 
1855  ;  the  prisoner  was  for  several  j-ears  previous  to  that  date  a  man  of 
intemperate  habits ;  some  eight  or  ten  days  before  the  deed  was  com- 
mitted he  was  very  much  intoxicated,  but  it  was  supposed  that  he  had 
abstained  entirely  from  drink  for  the  five  or  six  days  immediately  pre- 
ceding the  20th  of  November.     On  the  19th  he  had  been  at  Benton, 
which  was  four  miles  distant  from  his  place  of  residence ;  and  on  his 
return  he  was  met  by  Dr.  Woods,  who  had  previously  been  his  physician  ; 
lie  complained  of  being  unwell ;  he  said  his  right  arm  was  dead,  and 
he  could  not  use  it ;  he  complained  of  soreness  about  the  shoulders  an;l 
neck.     Dr.    Woods,  from  a  slight  examination,  thought  it  might  be 
paralysis  arising  from  intemperance.     He  was  rational,  and  the  doctor 
observed  no  symptoms  of  delirium  tremens  or  any  indication  of  mental 
derangement  of  any  description  about  him.     On  the  same  day  he  was  at 
Mr.  Qiiini's,  dined  there  and  ate  more  heartily  than  usual ;  Mrs.  Quini 
observed  no  wildness  in  his  appearance  at  dinner  ;  he  fre<]uently  changed 
the  subject  of  conversation,  acted  strangely,  and  walked  more  rapidly 
than  usual.     He  vent  away  and  returned  some  time  after  dark  ;  he  then 
iippeared  to   bo   under  some  delusion  connected  with  the  subject  of 
religion  ;  he  said  he  had  got  reUgion,  that  his  wife  had  got  religion,  and 
WHS  tlie  happiest  woman  in  the  world  ;  he  had  come  back  to  tell  Quini 
and  wife  of  it ;  he  wished  them  to  get  religion,  also ;  and  insisted  upon 
their  getting   "  down  and  going  through  the  religious  performance;" 
he  prayed,   preached,  and  said  he  had  turned  a  preacher.     He  fre- 
quontly  ran  out  into  i  he  piazza  and  seemed  to  be  watching  for  some- 
thing; said  that  they  would  get  religion  in  a  few  minutes;  that  he  saw 
it  Coining  down  from  heaven. 


THE   LEGAL   TEST    OF    INSANITY. 


Bovard  v.  State. 


These  acts  and  dcchuations,  and  many  others  of  a  similar  character, 
and  quite  as  frantic  and  absurd,  if  they  were  not  simnhited,  undoubtedly 
show  that  he  was  afflicted  witli  partial  insanity,  attended  with  delusion, 
on  the  subject  of  religion.  HeleftQuini's  and  returned  again  the  same 
nij^ht ;  the  weather  was  cold,  and  he  went  back  in  his  shirt  and  drawers, 
without  hat  or  shoes  ;  and  behaved  in  the  same  way.  He  was  persuaded 
to  go  to  bed,  and  was  supposed  to  sleep ;  he  remained  quiet  for  two 
hours  ;  he  then  got  up  and  wentawaj'.  On  the  following  day,  the  20th 
of  November,  at  eight  o'clock,  he  returned  to  Quini's  and  deported 
himself  much  in  the  same  manner  that  he  had  on  the  previous  night. 
He  asked  for  breakfast ;  said  that  he  had  eaten  nothing  that  morning ; 
that  breakfast  was  ready  when  he  left  home,  but  that  he  could  not  w^it. 
He  sat  dov.n  to  the  table  and  ate  as  usual.  On  the  19th  or  2ntli  he 
spoke  of  his  "  lame  arm,"  and  said  that  it  had  got  well.  From  Quini's, 
after  having  remained  an  hour,  he  went  to  the  graveyaiKl  and  assisted 
in  putting  down  a  post;  a  person  being  then  engaged  in  paling  it  in. 
He  was  rational,  and,  while  there,  evinced  no  indication  of  mental 
iilienation.  At  home,  in  the  evening  of  the  20th,  his  conversation  and 
conduct  indicated  that  he  was  under  the  same  delusion  under  which  he 
appeared  to  labor  in  the  morning  and  on  the  preceding  night.  He  was 
kind  and  affectionate  to  his  wife,  and  manifested  great  solicitude  on  her 
account.  He  showed  no  dislike  or  hostility  to  any  one  ;  did  not  appear 
to  be  suspicious  of  any  one ;  and  although  he  said  they  would  all  be 
dead  in  a  short  time,  he  did  not  appear  to  be  alarmed  on  that  account. 

On  the  21st,  the  day  following  the  commission  of  the  deed,  he  ap- 
peared to  be  in  full  possession  of  his  intellectual  faculties  ;  he  confessed 
his  crime,  described  its  atrocity  in  the  strongest  terms,  expressed  great 
remorse  at  having  committed  the  deed,  but  declined  to  state  his  motive 
for  its  commission.  Late  in  the  evening  of  that  Ciny  he  was  visited  by  Dr. 
Holmes.  The  doctor  was  under  the  impression  that  he  was  asleep  when 
he  first  went  in ;  his  pulse  was  natural  and  he  thought  that  the  accused 
was  not  laboring  under  any  disease  whatever.  He  had  known  the 
accused  for  many  years,  and  had  never  seen  him  with  the  svmi)tom3  of 
mania  a  potu  upon  him.  On  the  occasion  of  this  visit,  he  saw  nothing 
about  the  accused  which  indicated  insanitj'. 

In  reviewing  the  evidence  in  the  case  before  us,  it  is  impossible  to 
come  to  the  conclusion  that  the  plaintiff  in  error,  at  the  time  he  perpe- 
trated the  crime,  was  affected  with  a  mental  malady  which  involved  his 
entire  intellectual  faculties ;  and  there  are  very  cogent  reasons  for  re- 
jecting the  hypothesis,  that  his  affection  was  that  of  delirium  tremens. 

According  to  an  approved  writer  on  the  medical  jurisprudence  of 
insanity,  this  disease  —  de'irium  tremens  —  at  its  approach  is  generally 


DKLIRIUM   TKEMKNS MANIA   A  POTU. 


9 


I  I 


Symptoms  of  the  Disease. 


;d  great 
aiotivo 
by  Dr. 

accused 
iwn  the 
toms  of 


jible  to 
perpe- 

ved  his 
for  re- 

cmens. 

Mice  of 
nerall}' 


atlended,  amongst  other  symptoms,  with  disturlH'd  sU-op  and  impaired 
appetite ;  after  the  symi)toms  have  continued  for  two  or  three  days, 
they  increase  in  severity,  the  patient  ceases  to  sleep  aUogetlier,  and  soon 
becomes  delirious.  At  first  the  delirium  is  not  constant  —  the  mind 
wandering  during  the  night  —  but  during  the  day  when  its  attention  is 
fixed,  capable  of  rational  discourse.  It  is  not  long,  liowever,  before  it 
becomes  constant,  and  constitutes  the  most  prominent  feature  of  the 
disease.  This  state  of  watchfulness  and  delirium  continues  three  or 
four  days,  when,  if  the  patient  recover,  it  is  succeeded  by  sleep,  which 
at  first  appears  in  uneasy  an  irregular  naps,  and  lastly  in  long,  sound 
and  refreshing  slumbers.' 

"Almost  invariably,"  says  the  same  author,  "the  i)atient  manifests 
more  or  less  feelings  of  suspicion  and  fear,  laboring  under  continual 
apprehension  of  I)eing  made  the  victim  of  sinister  designs  and  prac- 
tices." "  One  of  the  most  common  hallucinations  is  to  be  constantly 
seeing  devils,  snakes,  vermin,  and  all  manner  of  unclean  things  about 
him,  and  peopling  every  nuok  and  corner  of  his  apartment  with  these 
loathsome  objects.  The  extreme  terror  which  these  delusions  often 
inspire,  produce  in  the  countenance  an  unutterable  expression  of 
anguish,  and  frequently  impels  the  patient  to  the  commission  of  suicide. ' ' 

Assuming  this  to  be  a  correct  description  of  the  course,  and  con- 
stantly attendant  symptoms  of  mania  a  potu^  it  is  dilflcult,  if  not 
impossible,  to  believe  that  the  accused  labored  under  that  disease. 

The  disease,  if  it  ever  existed  at  all,  did  not  manifest  itself  until  the 
afternoon  of  the  19th  of  November;  for  on  that  day,  at  dinner,  none  of 
its  peculiar  and  marked  symptoms  were  observable ;  on  the  contrary, 
he  was  neither  irrational  nor  delirious,  and  ate  more  heartily  thaa 
usual.  On  the  following  morning,  although,  if  we  judge  from  the 
evidence  in  relation  to  iiis  conduct  during  the  night,  his  malady  had 
made  most  rapid  progress,  he  ate  his  breakfast  with  unimpaired 
appetite,  and  went,  in  compliance  with  his  pn^mise,  to  assist  in  putting 
ail  inclosure  around  the  graveyard  ;  and  whilst  there  disclosed  no  indica- 
tion of  irrationality  or  symptoms  of  delirium  tremens.  These  facts  are 
irreconcilable  with  the  idea  that,  if  he  labored  under  any  mental 
affection,  it  was  that  of  delirium  tremens. 

The  total  absence  of  almost  every  marked  peculiarity  usually  attend- 
ant upon  this  disease,  and  particularly  the  short  continuance  of  the 
attack,  and  the  complete  restoration  of  the  accused  to  his  natural 
sound  and  healthy  state,  within  less  than  thirty  hours  after  its  commence- 
ment, render  this  coiiclusion  unavoidable. 

>  Ray,  Med.  Juris.  417. 


10 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Hrb. 


Tliere  are  several  facts  and  circumstances  connected  with  this  trans- 
action, as  thoy  appear  from  tlie  evidence,  whieli  raijrht  well  have  author- 
ized the  jury  to  doubt  whetlier  tlie  accused  was  at  all  affected  with  any 
form  of  mental  malady.  Hut  conceding  that  there  was  no  attempt  at 
simulated  mania  on  the  part  of  the  accused,  and  that  he  in  fact  did 
labor  under  some  disease  of  the  mind,  which  amounted  to  partial,  but 
very  temporary,  insanity,  according  to  tlie  rule  of  law  which  must  govern 
in  the  case,  he  is  clearly  to  be  held  responsible  for  his  act. 

There  was  no  proof  that  the  accused  had  not  capacity  and  reason 
sufficient  to  distinguish  between  right  and  wrong  in  relation  to  the  act 
which  he  committed  ;  or  that  he  had  not  a  knowledge  and  consciousness 
that  it  was  wrong  and  criminal,  and  that  punishment  would  be  inflicted 
upon  him  in  conseciuence  of  its  commission ;  on  the  contrary,  he  was 
perfectly  rational,  exce])t  in  reference  to  a  single  class  of  subjects, 
about  which  he  seemed  to  entertain  very  wild,  ridiculous  and  absurd 
notions.  But  there  was  no  proof  before  the  jury,  which,  either  directly 
or  by  inference,  showed  that  the  fancy  or  delusion  under  which  he 
labored  had  any  connection  as  the  antecedent  or  cauee  with  the  com- 
mission of  the  offence.  It  is  not  sufficient,  to  absolve  from  the  penal- 
ties of  the  law,  that  the  party  charged  was  partially  insane,  and  that 
such  insanity  v.as  attended  with  delusion.  In  all  such  cases  it  is 
essential  that  it  be  clearly  shown,  in  order  to  excuse,  that  the  act  was 
committed  under  the  direct  or  necessary  influence  of  such  delusion. 

Judgment  affirmed. 


particular  right  and  wrong  test  — burden  of  proof  — 
opinions  of  non-experts. 

State  v.  Erb. 

[74  Mo.  199.] 
In  the  Supreme  Court  of  Missouri,  October  Term,  1881. 


lion.  Thomas  A.  Sherwood,  Chief  Justice. 
"     Wakwick  IIor(in,     1 
"     Em.iaii  II.  Nourox,  [ 
"     John  W.  IIi-aky,       i 
'*     RoiiKUT  D.  Ray,        j 


Judges. 


1.  Particular  Right  and  Wrong:  Test. —  To  entitle  a  person  charged  with  homicide  to 
an  acquittal  on  the  ground  of  insanity,  it  must  appear  that  hie  mental  faculties  were, 
at  the  time  the  act  was  committed,  so  pervertetl  and  deranged  as  to  render  him  inca- 
pable of  distinguishing  between  right  and  wrong,  with  respect  to  that  particular  act. 


STATE  V.  ERB. 


11 


Facts  of  the  case  Reviewed. 


licide  to 
es  were, 
lim  inca- 
lar  act. 


2.  Burden  of  Proof. —  Sucli  evidence  must  appear  to  the  reasonable  satisfaction  of  the 

jury. 

3.  Evidence  of  Non-Expert.  —  A  witnecs  not  an  expert  may  give  his  opinion  of  u  person's 

insanity,  if  accompanied  with  the  facts  on  wiiich  it  is  based. 

Appeal  from  St.  Louis  Court  of  Appeals. 

D.  H.  Mclntyre,  attorncy-ojeneral,  for  the  State ;  Allen  &  Coste,  for 
respondent. 

Norton,  J.  —  The  defendant.  William  Henry  Erb,  was  indicted  in  the 
St.  Louis  Criminal  Court,  on  the  2d  of  July,  1879,  for  murder  in  the 
first  degree,  for  the  homicide  of  his  divorced  wife,  Rose  Mion,  alias 
Aglae  Rosalie  Erb,  on  tlie  nineteenth  day  of  Jinic,  187!).  He  was 
arraigned  at  the  same  term,  and  i)leadcd  guilty,  which  the  court  refused 
to  accept,  and  ordered  the  plea  of  "  not  guilty  "  to  be  entered.  After 
several  continuances,  the  cause  came  on  for  trial  at  the  I^Larch  term, 
1880,  and  defendant  was  convicted  of  murder  in  the  first  degree,  as 
charged  in  the  indictment.  After  an  unsuccessful  motion  for  a  new 
trial,  he  made  an  application  for  an  appeal  to  the  St.  Louis  Court  of 
Appeals,  which  was  granted.  That  court  reversed  the  judgment  of  the 
Criminal  Court ;  whereupon  the  circuit  attorney  for  the  State  appealed 
the  case  to  this  court. 

The  principal  ol)jections  made  b}'  defendant's  counsel  in  their  motion 
for  a  new  tiial,  are  to  the  action  of  the  court  giving  certain  instruc- 
tioiis  on  its  own  motion,  and  refusing  others  asKcd  by  defendant;  in 
admitting  improper  and  illegal  testimony  for  the  State,  and  excluding 
competent  and  legal  testimony  for  the  defendant ;  and  the  action  of 
the  court,  in  refusing  to  instruct  the  jury  to  disregard  certain  alleged 
improper  statements  made  by  the  circuit  attorney  in  his  address  to  the 
jury. 

The  facts  disclosed  by  the  evidence  on  the  part  of  the  State  to  estab- 
lisli  the  corpus  delidi  are  that  the  defendant,  having  heard  that  the 
deceased,  who  had  been  divorced  from  him  for  some  years,  was  about 
to  marry  again,  went  to  his  home,  procured  a  knife  and  proceeded  to 
to  the  house  of  deceased,  whore  she  was  engaged  in  washing,  and  asked 
hor  "if  that  was  true."  to  which  deceased  made  no  response,  where- 
upon defendant  stabbed  her  twice  in  the  back,  the  knife  penetrating  the 
left  ventricle  of  the  heart,  and  inflicting  a  wound  of  which  she  immedi- 
ately died ;  that  defendant,  after  committing  the  homicide,  threw  the 
knife,  with  which  he  inflicted  the  wound,  into  the  vault  of  a  water-closet, 
and  walked  away  up  Spruce  Street,  and  upon  being  arrested  said  he  did 
not  cut  any  woman ;  that  about  three  hours  after  his  arrest,  upon  being 
asked  why  he  killed  his  wife,  he  answered:  "  Who  said  I  killed  her?" 


12 


THE   LEOAL   TEST   OF    INSANITY 


State  V.  ErI). 


and  upon  being  told  "your  liltlc  d:iuc[litcr  said  so,"  replied  that: 
'•SIh>  ciiu't  s:iy  so;  I  li:ive  not  seen  my  wife  for  over  ji  year ;  1  never 
had  such  :i  knife."  On  the  niorniiiij;  after  tlie  hoinieide,  defendant  said 
there  was  no  use  in  denying  the  killing;  that  his  wife  had  not  treated 
him  well ;  had  once  put  him  in  the  work-house  ;  that  he  had  l)een  told, 
the  afternoon  of  tlie  homicide,  that  she  was  going  to  marry  somebody, 
an<l  he  nuule  up  ids  mind,  while  sitting  on  the  stone,  to  get  his  knife; 
that  he  titen  went  lionu'  and  got  it;  that  he  then  went  to  his  wife's 
house  and  entered  the  front  door  and  met  his  little  girl  and  asked  her 
where  her  mot  lier  was,  and  upon  l)eing  toM  that  slie  was  in  the  yard, 
he  went  into  tlie  yard  and  saw  his  wife  at  the  wash-tub,  and  asked  her 
if  that  was  true,  meaning  if  she  inteudi'd  to  marry,  ai  d  upon  receiving 
no  reply,  defendant  said  he  "then  gave  it  to  her"  and  "  tlui'W  it 
away,"  meaning  the  knife,  and  then  went  up  Spriu-e  Street  to  Fourth 
Street.  'J'liese  facts  sutliciently  characterize  the  brutal  nature  of  the 
act,  and  vii'wing  tlie  homicide  in  the  light  of  them  alone,  they  unques- 
tionably establish  the  crime  of  murder  in  the  first  degree. 

The  only  defence  relied  upon  at  the  trial  was  that  of  insanity.  This 
defence  was  sought  to  be  cstablishetl  by  showing  that  defendant  had 
been  addicte  1  to  strong  drink  for  a  number  of  years  ;  that  previous  to 
18(io,  he  lived  in  radiu-ali,  Kentucky,  and  while  there  had  drunk  to 
such  excess  as  to  produce,  on  several  occasions,  delirium  tremens;  that 
he  had  attempted,  wliile  in  Kentucky,  on  one  occasion,  to  jump  out  of 
a  two-story  window,  on  another  occasion  to  poison  himself,  and  on  an- 
other attempted  to  kill  a  man  with  a  knife,  which  he  was  trying  to  take 
from  him ;  that  when  sober  he  was  peaceable  and  quiet ;  when  drunk, 
dangerous  and  quarrelsome ;  that  he  removed  to  St.  Louis  in  18G5, 
wliere  he  continued  his  habit  of  drinking.  As  to  the  extent  to  which  he 
indulged  in  his  habit  after  his  removal  to  St.  Louis,  the  evidence  is 
conflicting,  some  of  the  witnesses  stating  that  he  indulged  in  it  in  187G 
to  such  an  extent  that  he  became  very  much  depraved  and  on  the  verge 
of  delirium  tremens,  on  which  occasion  he  cut  hi  ^  wrist  and  said  he  was 
going  to  kill  himself ;  that  in  1878  he  was  i)rostrated  from  the  heat; 
that  about  that  time  and  afterwards,  he  would  not  rest  well  of  a  night, 
would  often  be  I'estless  and  com|.lain  of  headache  and  burning  sensa- 
tion in  his  stomach,  and  request  not  to  be  leff.  alone  at  night.  AH  the 
witnesses  concur  in  saying  that  during  his  r  sidence  in  St.  Louis,  he 
was  never  unwell  excejjt  as  above  stated,  and  never  unable  to  attend  to 
business,  though  during  the  time  he  was  often  drunk.  As  to  the  con- 
dition  of  defendant  at  the  time  the  homicide  was  committed,  all  the 
witnesses  who  saw  him  immediately  after  the  occurrence  concur  in  say- 


TEST  OF  INSANITY. 


18 


}(\  that: 
1  never 
lant  siitd 
;  trcutt'd 
)en  told, 
luebody, 
is  knife ; 
is  wife's 
sked  lier 
lie  yard, 
ski'd  her 
receiving 
tlirew  it 
0  Fourtli 
e  of  the 
unqucs- 

y.     This 
lunt  liud 
ivious  to 
Idrunk  to 
ns ;  that 
p  out  of 
id  on  au- 
to take 
drunk, 
n  18G5, 
Ivhich  he 
deuce  is 
in  187G 
lie  verge 
|l  he  was 
I  heat: 
niglit, 
sensa- 
jAU  the 
puis,  he 
[tend  to 
|he  cou- 
lall  the 
[in  say- 


Instructions  as  to,  Approved. 


ing  tiiat  he  was  not  drunk,  but  appeared  to  be  sober,  his  own  admission 
being  that  he  had  drank  twice  on  the  day  of  the  lioniicide.  Upon  tlic 
close  of  the  evidence,  defendant's  counsel  put  a  hypotlietical  case  to  a 
physician  who  was  an  admitted  expert  on  the  question  of  insanity,  lo 
which  the  physician  answered  "  that  he  would  cull  it  simply  a  case  of 
aleholism ;  that  he  could  not  define  it  as  a  case  of  insanity;  that  the 
case  put  was  one  where  the  responsibility  of  the  indiviiUial  is  modified 
by  the  condition  of  his  mind.  This  modified  ros[)ousibility  is  all  I  could 
predicate  of  this  case.  It  would  eoine  under  the  head  of  nervous 
cases,  where  an  individual,  though  sane,  would  be  less  responsible  than 
many  who  are  insane."  The  State  also  put  a  hypothetical  case  to  an- 
other physician,  also  an  expert,  embodying  substantially  the  same  facts, 
who  answered  "  that  he  saw  no  insanity  in  the  case." 

Tiie  defendant  asked  iiiui!  instructions,  of  which  the  court  gave  num- 
bers one  and  seven,  and  refused  the  others,  and  in  so  doing  it  is  in- 
sisted by  counsel  that  the  court  committed  error.     Instruction  number 
two,  which  was  refused,  asked  the  court  to  direct  the  jury  in  substance 
If  they  believed  defendant,  at  the  time  of  committing  the  homicide,  was 
incapable  of  distinguishing  right  from  wrong,  or  of  exercising  control 
or  will  power  over  his  actions,  or  was  unconscious  at  times  of  the  nature 
of  the  crime  he  was  about  to  commit,  they  would  find  the  defendant  not 
miilty.     In  an  instruction  given   bythe  court,  of  its  own  motion,  the 
jury  were  told  that  if,  at  the  time  the  stabbing  occurred,  defendant  was 
so  insane  tha»t  he  could  not,  and  did  not  know  or  comprehend  the  nature 
or  character  of  the  act,  although  he  may  have  committed  it,  he  Is  not 
guilty ;  that  to  entitle  defendant  to  an  acquittal  on  the  plea  of  insanity, 
his  mental  faculties  must  have  been  at  the  time  the  homicide  was  cora- 
iTiittcd,  so  perverted  and  deranged  as  to  render  him  incapable  of  dis- 
tinguishing between  right  and  wrong,  and  of  knowing  the  right  from 
the  wrong  of  that  particular  act.     The  instruction  given  by  the  trial 
judge  is  in  strict  conformity  to  the  ruling  of  this  court  in  the  cases  of 
the  Baldioin  v.    State,^  Huting    v.  State,^    and  State    v.  Redemeier.^ 
This  instruction  covered  the  ground  as  to  insanity,  and  no  error  was 
committed  in  refusing  instruction  number  two.     Besides  this,  I  cannot 
see  anything  in  the  facts  of  this  case,  transpiring  at  the  time  the  act 
was  committed,  upon  which  to  predicate  an  instruction  telling  the  jury 
that  if  they  believed  defendant  was  unable  to  exercise  control  or  will 
power  over  his  actions  when  he  committed  the  act,  they  would  acquit. 
Instructions  numbers  three  and  six  were  properly  overruled,  forthe  same 
reasons  whicli  apply  to  the  second  instruction.     In  all  cases  where  insanity 


>  12  Mo.  223. 


=  21  Mo.  404. 


'  71  Mo.  175. 


14 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Erb. 


is  intcrposeil  us  a  defence,  whether  such  insanity  be  denominated  alco- 
holism in  its  chronic  form,  or  in  its  acute  form  of  dclirimn  tremens,  or 
dypsomania,  affective  or  emotional,  ideational,  or  whether  it  be  desig- 
nated by  any  other  of  the  various  technical  terms  denoting  peculiar 
forms  of  insanit}',  the  question,  according  to  the  uniform  course  of 
decisions  in  this  State,  is,  whether  such  insanity  rendered  the  person 
laboring  under  it  incapable  of  distinguishing  between  right  and  wrong,  in 
respect  to  the  act  he  was  about  to  commit. 

The  fourth  and  fifth  of  defendant's  instructions  were  properly  refused, 
as  they  asked  the  court  to  tell  the  jury  that  if  they  had  a  reasonaltle 
doubt  as  to  the  insanity  of  the  accused,  the}'  would  acquit.  Instruc- 
tions containing  the  above  principle  have  been  repeatedly  condemned 
by  this  court.     State  v.  Redemeier,  and  cases  there  cited. 

The  eighth  instruction  is  as  follows:  "  The  court  instructs  the  jury 
that  if  they  believe  at  the  time  of  the  killing  charged  in  the  indictment, 
the  mental  and  moral  faculties  of  the  defendant  were  so  perverted  from 
their  normal  condition,  by  the  habitual  use  of  alcoholic  liquors,  as  to 
prevent  him  from  understanding  the  nature  and  consequences  of  the  act 
he  was  about  to  conunit,  and  such  perverted  and  diseased  condition  of 
his  mental  and  moral  faculties,  was  inconsistent  with  deliberation  and 
premeditation  as  charged  in  the  indictment,  so  that  he  could  not  have 
acted  with  deliberation  and  premeditation,  the  jury  must  find  the 
defendant  guilty  of  murder  in  the  second  degree,  and  assess  the  punish- 
ishment  at  a  term  in  tlie  penitentiary  for  n(jt  less  than  ten  years.  But 
such  diseased  condition  of  the  mental  and  moral  faculties  must  be  the 
result  of  an  habitual  use  of  liquor,  and  not  merely  the  disturbance  inci- 
dent to  a  fit  of  intoxication."  The  facts  in  this  case,  if  defendant  was 
not  insane,  show  it  to  be  murder  in  tlie  first  degree,  and  nothing  else, 
and  the  instruction  might  well  have  been  refused  on  that  ground  ;  but  it 
was  fatally  defective  on  another  ground  in  this,  tliat  it  authorized  the 
jury  to  find  defendant  guilty  of  murder  in  the  second  degree  without 
finding  thui.  the  act  was  done  with  premeditation. ' 

The  ninth  instruction  refused,  asked  the  court  to  instruct  the  jury  to 
disregard  the  evidence  of  Sergt.  Frank  Watkins.  This  witness  was 
called  in  rebuttal,  and  was  asked  tlie  question,  "  What  was  defendant's 
appearance  and  conduct  as  to  sanity  or  insanity?"  This  question  was 
objected  to  on  the  ground  that  Watkins  was  not  an  expert,  and  could 
not,  therefore,  give  an  opinion.  This  objection  was  properly  overruled 
under  the  authority  of  State  v.  Klinger,^  where  it  was  held  that,  "  wit- 


ne!' 
the 
i\n\ 
tht 

coil 
clol 


I  State  V.  Curtis,  TO  Mo.  691. 


*  46  Mo.  329. 


OPINIONS    OF    NON-EXI'£RT8. 


1ft 


AddreMS  of  Prosecuting  Attorney. 


itcd  alco- 
Jinoiis,  or 
be  dcsig- 
peculiur 
course  of 
le  person 
strong,  in 

'  refused, 

;asona,l»Ic 

Instruc- 

ndenined 

the  jury 

lictment, 

ted  from 

rs,  as  to 

f  the  act 

Jition  of 

ition  and 

lot  havu 

find  the 

punish- 

.     But 

be  the 

lee  inci- 

ant  was 

else, 

but  it 

zed  the 

without 

jury  to 
ss  waa 
idant's 
on  was 

could 
irruled 

"wit- 


»g 


nesses  who  are  not  experts  maybe  permitted  to  stiite  whctlior  they  deem 
the  prisoner  to  be  insane,  but  it  can  only  be  done  in  connection  with 
their  statements  of  the  particular  conduct  and  expressions  which  form 
the  basis  of  the  judgment." 

It  is  also  urged,  as  a  n-asdu  for  reversing  the  judgment  of  the  trial 
court,  that  after  the  argument  of  tiie  ciise  before  the  jury  had  been 
dosed,  the  court  was  asked  to  instruct  the  jury  to  disregard  the  follow- 
ing language  used  by  the  prosecuting  attorney  in  his  closing  speech.  The 
circuit  attorney,  in  his  closing  argument,  said :  "  Where  a  man  is  really 
insane,  from  whatever  cause,  he  shall  be  protected  ])y  the  State,  whose 
rf'presentative  I  am.  For  instance,  take  the  case  of  Ileuman,  which 
startled  the  community  the  other  day,  and  wiiich,  doubtless,  you  have  all 
read  al)out.  He  had  fits  and  delirium  tremens,  and  while  so  suffering, 
lie  killed  his  little  infant,  whom  he  loved,  and  his  wife  by  his  bedside,  in 
Ills  insane  delusion  tliat  his  little  infant  and  his  wife  meant  to  kill  iiim. 
Now,  that  is  alcoholism,  or  insanity  resulting  from  it,  which  the  law 
recognizes  wherever  it  exists.  There  is  nothing  of  this  kind  in  Erb,  the 
casel»efore  you.  lie  had  no  delusion  or  insanity  of  any  kind,  and  none 
that  any  person  swears  to.  *  *  *  That  there  was  no  murder  in  the 
second  degree  in  the  case;  that  the  testimony  proved  murder  in  the 
first  degree,  and  this  was  not  denied,  as  insanity  was  the  di'fence  ;  that 
if  this  was  so,  the  jury  ought  not  to  convict  of  murder  in  the  second 
degree,  as  this  would  be  virtually  pardoning  the  accused,  and  the  par- 
doning power  belonged  to  the  Governor  and  not  to  juries ;  that  they 
sliould  do  their  dut}',  and  if  they  thought  there  were  any  mitigating  cir- 
cumstances, they  could  write  to  tlif  Governor."  "We  cannot  say  that 
tluse  utterances  were  not  fully  warranted  by  the  facts  disclosed  in  the 
evidence.  It  is  true  that  the  court  had  given  an  instruction  for  murder 
in  the  second  degree,  doubtless  under  the  belief  that  sect.  1234  of 
Revised  Statutes  directed  trial  courts,  in  every  case  of  indictment  for 
murder  in  the  first  degree,  to  give  an  instruction  not  onl}'  as  to  murder 
in  the  first  degree,  but  also  to  murder  in  the  second  degree.  This  was 
a  misconception  of  the  statute,  this  court  having  held  in  the  case  of 
State  V.  Hopper,'^  that  said  section  is  not  to  be  understood  as  requiring 
the  trial  court  to  instruct  the  jury  as  to  murder  in  the  second  degree, 
whore  there  is  no  evidence  upon  which  to  predicate  it. 

The  remark  of  the  prosecuting  attorney,  "  that  there  was  no  murder 
in  the  second  degree ;  that  the  testimony  proved  murder  in  the  first  de- 
gree, and  that  this  was  not  denied,  as  insanity  was  the  defence,"  could 


1  71  Mo.  425. 


10 


Tin:    MXiAIi    lllM'   Ol'    INSANITY 


Hawo  r.  Stnti'. 


hiivo  been  understood  1>v  llicjiirv  in  iikoHum' Hcnso,  tlwiu  if  (iii'V  tlid  not 
lu'lii'vc  tliat  tlio  difcmliint  wms  insano  at  llu'  time  iio  connnittt'd  tlio  net, 
Uk'V  were  lioniid  inidcr  tlie  eviiU'iu'e  jind  tho  law  (o  lind  iiini  guilty  of 
niiinU'r  in  tlu;  li'sl  dcLrri'C.  Tlic  principle  tini.s  unnouncrd  in  tlii' 
romaiks  of  tlio  prosocnting  attorney,  was  directly  sanctioned  by  tliis 
court  in  tlie  ct'se  of  BaUhrln  v.  State, ^  There  was  no  niistako  of  law 
()!•  fact,  and  tl  e  case  does  not  ct)nic  within  tho  principle  announced  in 
the  case  of  /''/a/e  v.  Lcc.'- 

Nor  do  v,e  think  the  appeal  made  to  the  jury  to  do  their  duty  would 
warrant  au  interference  with  tlie  judgment.  It  amounted  to  nothing 
more  t'.ian  an  assertion  of  what  evrry  jiwor  in  the  box,  if  intelligi-nl 
enough  to  sit  on  a  jury,  knew  to  lie  a  fact,  viz.  :  that  tiieir  function  was 
not  to  bestow  merey,  but  to  do  justice  between  the  State  and  tlie 
accused. 

Perceiviiiir  no  error,  the  judgment  of  tlic  St.  Louis  Court  of  Appeals 
is  reversed,  and  that  of  the  ("rimiiial  Court  is  alllrmed,  in  which  all  the 
judges  concur.  Judge  IIot;(iii  concurring  in  the  result. 


tkst  of  insamtv  — iiyi'oc'ondria. 
Hawk  v.  State. 

[11  Nfb.  5;;7;  08  Am.  Rep.  375.] 

In  the  Supreme  Court  of  Xebniftka,  Januanj  Term,  1S81. 

lion.  vSamtki.  Maxwell,  Chief  Justice. 
"     (ir.oiaiK  B.  Lakk,  )    ^   , 
"     Amasa  Conn,  )         "^ 

Occasional  oddity  or  hypocoiulria  does  not  amount  to  insanity  <■■    "='■       he  comnii^f^ion 
of  a  criminal  oScucc.    Xothiug  short  of  the  inability  to  d'  n^M  fromw'ng 

cau  do  so. 

Conviction  of  malicious  shooting.     The  opinion    iiites  the  case. 

Phelps  &  Thomas,  for  plaintiff  in  error;  C.  J.  Diltvo:  h.  attorney- 
general,  for  State. 

Maxwkll,  C.  J.  —  The  plaintiff  was  convicted  at  the  November, 
1880,  terra  of  the  District  Court  of  Colfax  County,  of  maliciously 
shooting  one  August  Hirn,  and  was  sentenced  to  imprisonment  in  the 


Supra, 


»  66  Mo.  167. 


JIVI'CK.'ONDIUA. 


17 


Dolliiltloii  of  "IiiNuiic"-  Ttst. 


|lunn^!•lon 


pe. 
torney- 

|eraber, 
iiously 
in  the 


|u'uitrntiury  for  flvo  years.  II«  now  proscK-iitca  a  writ  of  <!rror  to  tliis 
(•oiirt. 

Tiu!  only  error  relied  upon  i.s  tlie  followinj^  iustnietioii,  j^iven  on  lielialf 
uf  the  State:  "The  hiwrt'<iuirert  soint'thinj^  morn  than  occasional  oddity 
or  liypocondriato  exempt  the  pcri)etrator  of  an  offence  from  its  punlNli- 
iiient.  If  the  defenihmt  was  in  the  possession  of  reason,  thought, 
intent,  a  faculty  to  tlistingnish  the  natures  of  actions,  to  discern  the  dif- 
ferences between  moral  {jjood  and  evil,  then  tin;  fact  of  tlie  offenci;  and 
tlie  condition  of  mind  above  described,  proved  beyond  a  reasonai)lc 
doubt,  your  verdict  should  l)e  guilty." 

The  court,  prior  to  giving  the  above,  had  instructed  the  jury  fully 
upon  all  the  questions  raised  by  the  indictment,  and  also  upon  the  (pics- 
lion  of  insanity,  and  the  instructions  so  given  are  certainly  favorable  to 
tlic  accused.  The  instruction  complained  of  in  el'fe(;t  says  to  the  jury 
tli:it  mere  oddity  or  hypocondria  is  not  insanity,  iiud  if  the  accused,  at 
the  time  of  C(Mnmitting  the;  offence  was  in  possession  of  reason,  and  was 
able  to  discern  right  from  wrong,  he  would  be  rcs|)onsii)le  for  his 
actions. 

Webster  defmes  the  word  "  insane  "as  "  exhibiting  ansoundness  of 
mind;  mad;  deranged  in  mind ;  delirious;  distracted." 

The  question  here  involved  was  before  this  court  in  Wriyht  v.  People.^ 
Tlic  court  say :  "  It  is  a  familiar  rule  of  the  common  law  that  to  consti- 
tute a  crime  there  must,  in  almost  all  cases,  bo  first,  a  vicious  will,  and 
secondly,  an  unlawful  act  consequent  upon  such  vicious  will.'-^  And 
where  an  individual  lacks  the  mental  capacity  to  distinguish  right 
from  wrong,  in  reference  to  the  particular  act  complained  of,  the  law 
will  not  hold  him  responsible.  Flanagun  v.  People,^  Stute  v.  Lart;- 
nnce,^  Com.  v.  Ileath.^  This  mental  incapacit}'^  may  result  from  vari- 
ous causes,  such  as  nonage,  lunacy  or  idiocy,  and  whenever  interposed 
as  a  defence,  the  inquiry  is  necessarily  to  the  single  question  of  the 
ability  of  the  accused  to  distinguish  between  right  and  wrong  at  the 
time  of  committing  the  act  complained  of."  But  even  where  insanity 
is  shown  to  exist,  and  whether  it  be  general  or  partial,  the  rule  seems 
to  be  substantially  as  charged  by  the  court  below,  that  if  there  remains 
luU'gree  of  reason  sufficient  to  discern  the  difference  lietween  good  and 
evil,  at  the  time  the  offence  was  committed,  then  the  accused  is  respon- 
sible for  his  acts."  " 


'  4  Neb.  407. 

2  I!i()om&  Hadley  Com.  (Am.  c.l.)  'i'XK 
^  •'■'.  X.  Y.  41)7;  «.  c.  11  Am.  Kei).  731. 
*  57  Me.  574. 


••  llUray,  303. 

•■'  Freeman  v.  People,  4  Denio,  28. 

'  IIopps  V.  I'eople,  31  111.  :j^5. 


18 


THE    LEGAL   TEST   OF   INSANITY. 


l)oj;iriK'tte  r.  Coininonwealth. 


"Wo  adhere  to  the  rule  hvid  down  in  tlio  ahm'e  (>i)ini()ii  as  l)oing  sounil 
in  i)rinc'iple.  Tlserc  is,  therefore,  no  error  in  the  instrnction,  and  the 
judgment  of  the  court  below  must  be  alliriued. 

Jadgment  affirmed. 


TEST  OF  LVSANITY—IRRKLEVANTQUKSTIOXS  — BURDEN  OF  PROOF. 

Dejaknette  V.  Commonwealth. 

[75  Va.SC:.] 
In  the  Court  of  Appeals  of  Virginia,  January  Term,  18S1. 
Hon.  R.  V.  L.  MoNCi'RK,  President. 

♦♦       JOSKI'II  CUKISTIAN,  ] 

"     Francis  T.  Andkuson,   I 
"     Waltkk  R.  Staim.ks,        j 

*'       EinVAUD   C.   'JUKKS,  J 


Jiul'ies. 


1.  Test  of  Insanity —  Instructions.  — The  prisoner  w.as  imlicted  for  murder,  tlie  defence 

being  insanity.  Tlie  judge  cliarged  llie  jury  as  followi?:  "  In  every  case,  ultliougli  the 
accused  may  be  laboring  under  partial  insanity,  if  he  still  understands  tlie  nature  and 
cliaractcr  of  liis  act  and  it3  consequences,  and  has  a  kno\vle<Ige  that  it  is  wrong  and 
criminal,  and  a  mental  power  sullicicnt  to  apply  tliat  knowledge  and  to  know  that  if  ho 
does  the  act  lie  will  do  wrong  and  receive  punishment,  and  possess  withal  a  will  sulli- 
cicnt to  restrain  the  impulse  that  may  arise  from  a  diseased  mind,  sudi  partial  insanity 
is  not  snlllcient  to  exempt  him  from  responsibility  to  the  law  for  the  crime."  Held, 
correct. 

2.  Irrelevant,  Confusing,  and  Misleading  questions  based  on  the  defci'ce  of  insanity 

shoulil  not  be  permitted. 

3.  Burden  of  Proof.  —  Insanity  as  a  defence  to  crime  must  be  proved  to  the  satisfaction  of 

the  jury;  it  is  not  necessary  that  ■•.••  jury  shall  be  satisfied  of  the  insanity  of  the  pris- 
oner beyond  a  reasonable  doubt. 

Al  the  August  term  of  the  Ilastiniis  Court  of  the  town  of  Danville, 
James  T.  Dejarnette  was  found  guilty  of  the  murder  of  his  sister 
Mollie,  committed  in  a  iiouse  of  ill-fame  in  said  town,  where  she  was 
living  as  an  inmate.     The  oiil}-  ground  of  defence  was  insanit}-. 

CabeH  &  Peatross  and  Withers  &  Barkfidale,  for  the  piisoner. 

Tiie  Atlornoji-Gpnend,  for  the  Commonwealth. 

Stai'i.ks,  J.,  delivered  the  opinion  of  the  court. 

(Omitting  other  rulings. ) 

The  fifth  bill  of  exceptions  states  that  whilst  Dr.  T.  "W.  Keenc,  a 
medical  witness  for  the  accused,  was  explaining  to  the  jury  the  differ- 
once  between  moral  and  intellcctiml  insanitj',  and  giving  the  opinions  of 
writers  thereon,   the  presiding  judge  stopjied  the  witnes?,,  and  in  the 


ir  souml 
and  tlie 

irmed. 


F  PROOF. 


COMMKNTS    BY    COLUT    ON    KV11)1;N(  K. 


rj 


81. 


,  the  defence 
iilthougli  llio 
le  niilure  and 
wrong  imd 
low  tliiil  if  !h' 
a  will  sulli- 
tlal  insanity 
me."    neld, 

•e  of  insanity 

ilisfaction  of 
of  the  pns- 


Danvillo, 
his  sister 
•e  she  was 


iKccnc,  a 
tlie  (Uffer- 
Linions  of 
tul  in  the 


Questions  to  Experts. 


presence  of  the  jury,  said  to  the  Commonwealth's  attorney  :  "  Is  it  pos- 
sible, sir,  that  you  sit  there  and  permit  such  testimony  as  that  without 
objection?"  To  which  the  Coinmoiiwealtli's  atloriiey  replied,  "Yes. 
.sir,  lam  willing  to  hear  it  all."  When  the  court  replied,  ''I  will  not 
stop  it  unless  you  object. "  To  which  question  and  interference  of  the 
court  and  the  manner  in  which  it  was  done,  the  accused  excepted. 

In  view  of  the  fact  that  a  new  trial  is  to  be  had  on  other  grounds, 
and  inasmuch  as  the  same  matter  is  not  at  all  likely  to  arise  again,  it  is 
not  deemed  necessary  now  to  decide  whether  or  net  the  interference  and 
remark  of  the  presiding  judge  constitute  error  sulHcient  for  the  reversal 
of  the  jmlgnient,  more  especially  as  a  decision  of  tht,u  point  involves 
the  necessity  of  p;issiug  ui)on  the  relevancy  of  the  testiuiony  of  the  wit- 
ness. But  to  prevent  any  possil)le  misa|)prehension  in  the  future,  it  is 
proper  to  say  that,  in  the  administration  of  justice,  it  is  of  great  import- 
ance that  the  court  should  leave  to  the  juiy  exclusively  the  consideration 
of  tlie  facts. 

In  this  State,  all  expression  of  opinion,  or  comments,  or  remarks  upon 
the  evidence  which  have  a  tendency  to  intimate  the  bias  of  the  court, 
with  respect  to  tlie  character  or  weight  of  the  testimony,  particularly  in 
criminal  cases,  are  watched  with  extreme  jealousy  and  generally  consid- 
ered as  invasions  of  the  province  of  the  jury.  Nothing  of  the  kind  was, 
of  course,  intended  by  the  learned  judge  of  the  court  below.  His  re- 
mark was,  no  doubt,  prompted  by  a  feeling  of  some  warmth  at  what  he 
considered  improper  testimony  given  to  the  jury,  without  objection  from 
the  prosecuting  attorney. 

The  Cth,  7th,  8th,  Oth,  10th,  11th,  12th,  13th,  1 1th,  15th,  and  IGth 
hills  of  exception  may  be  considered  together.  In  one  of  them  Dr. 
Thomas  "NV.  Keene,  a,  witness  for  the  accused,  is  asked  the  following 
question:  "  Is  it  not  recognized  by  the  highest  authority  in  the  medical 
profession,  that  a  person  may  commit  an  act,  under  the  inlluence  of  a 
delusion,  because  he  believes  it  to  be  right  and  his  duty?  "  In  another 
the  witness  is  asked,  "How  intellectual  insanity  affects  a  man?"  and. 
'■  How  moral  insanity  affects  him?  "  In  another,  "  What  is  the  differ- 
ence between  inti'Uectual  and  moral  insanity?  "  In  another,  "  What  is 
latent  or  concealed  insanity,  and  how  does  it  affect  a  man?"  In  an- 
other, "  What  is  transitory  insanity?  "  In  another,  "What  is  insane 
impulse?"  In  another,  "What  do  medical  men  mean  by  insane  tem- 
perament?" In  another,  "  Whau  circumstances  would  be  likely  to 
develop  Litont  inherent  insanity?  "  In  another  the  witness  is  asked  to 
jgivi'  the  symptoms  of  mornl  insanity.  In  another  he  is  asked,  "  What 
iIh  insanity?  "     All  of  these  questions  were  excluded  bj'  the  court. 


20 


THE    LEGAL   TEST   OF    INSANITY. 


Dt'jarnette  v.  Commonwealth. 


Neither  of  tliose  bills  of  cxcoptions  set  forth  any  of  the  testimony 
adduced  on  the  trial  to  show  the  relevancy  of  these  questions  to  the 
matters  in  is^sue.  The}'  extend  over  an  almost  unlimited  field  of  inquiry, 
involvin<^  a  discussion  of  the  laws  of  insanity  in  all  its  eonii)licated  and 
mysterious  phases.  Their  only  effect  was  to  consume  the  time  and 
attention  of  the  court,  and  to  mislead  and  confuse  the  mind  of  the  jury 
with  perplexing  discussions  upon  the  symptoms  of  the  vaiious  forms  of 
derangement  as  devcloi)ed  in  the  human  mind.  We  are,  therefore,  of 
the  opinion  that  the  Corporation  Court  did  not  commit  any  error  in  ex- 
cluding the  questions  and  answers  thereto  from  the  jury. 

At  the  same  time,  we  arc  not  to  be  understood  as  saying  that  neither 
of  the  questiims  set  forth  in  these  bills  of  exception  would  be  proper 
under  any  state  of  circumstances.  In  the  progress  of  a  trial  facts  may 
be,  and  often  are,  developed  which  render  it  proper  for  the  medical 
witness  to  describe  the  s3'mptoms  of  a  particular  disease,  mental  or 
physical,  which  may  be  the  subject  of  investigation. 

It  is  utterly  imi>ossil»Ie  for  an  appellate  court  to  lay  down  any  rule  on 
this  subject,  or  to  sa}',  as  an  abstract  proposition,  what  (jucstions  may, 
or  may  not,  '"<e  propounded  to  the  medical  witness.  In  all  inquiries  re- 
lating to  insanity,  every  reasonable  latitude  should  be  allowed  in  tne 
examination  of  witnesses,  however  false  or  unfounded  the  court  may 
consider  the  defence.  It  is  always  required,  however,  that  parties  com- 
plaining of  the  exclusion  of  proper  testimony  shall  state  in  the  bill 
of  exceptions  so  much  of  the  evidence  as  to  show  the  pertinency  and 
relevancy  of  that  which  is  excluded.  Without  this,  as  a  general  rule, 
it  is  impossible  for  the  api)ellate  court  to  say  that  any  error  has  been 
committed  to  the  prejudice  of  the  party  complaining.  Hut  to  prevent 
any  misapprehension  upon  a  future  trial,  it  is  proper  to  state  that  the 
question  set  out  in  the  thirteenth  bill  of  exceptions  may  be  properly  asked 
a  medical  witness  qualified  to  testif}'^  on  such  a  subject.  That  question 
is  as  follows:  "  Sui)pose  a  man  had  inherited  a  predisposition  to  insan- 
ity, would  great  mental  anxiety,  loss  of  property,  or  the  honor  of  one's 
family,  and  losses  of  other  kinds,  be  likely  to  develop  the  disease?  "  It 
has  been  often  held  that  a  medical  witness,  although  he  has  never  seen 
the  patient,  after  hearing  the  evidence  of  others,  may  be  called  to  prove 
the  general  effect  of  the  disease  described  by  them,  and  its  probable 
consequences  in  the  part'cular  instance. 

In  Wright's  Co.se  ^  it  was  held,  by  all  the  judges,  that  a  witness  of 
medical  skill  might  be  asked  wliethcr,  in  his  judgment,  such  and  such 


'  R.  &  U.  156. 


testimony 
lis  to  the 
f  inquiry, 
catcd  and 
time  and 
f  the  jury 
i  forms  of 
irefore,  of 
■ror  in  ex- 

lat  neither 
be  proper 
facts  may 
e  medical 
mental  or 

ny  rule  on 

ions  may, 

quirics  rc- 

?ed  in  ttie 

court  may 

ties  com- 

the  Dill 

nency  and 

ral  rule, 

has  been 

,0  prevent 

that  the 

rly  asked 

question 

to  insan- 

r  of  one's 

ise?"     It 

ever  seen 

to  prove 

probable 

ntness  of 
and  such 


DUTY   OF   COURT   TO    INSTRUCT   .Uin' 


21 


Test  of  Insanity. 


appearances  Avere  symptoms  of  insanity,  and  whether  a  lonj^  fast,  fol- 
lowed by  a  dn  uglit  of  strong  liquor,  was  likely  to  produce  a  parox- 
ysm of  that  description.! 

We  are  thus  more  particular  in  considering  the  question  set  out  in  the 
thirteenth  bill  of  exceptions,  because,  by  reference  to  another  liill  of 
exception  ,  ' "  ai)i)ears  that  evidence  was  adduced  on  the  trial  tending  to 
show  thr  -> -jstence  of  insanity  in  the  ancestors  of  the  accused,  and  it  is 
almost  d-iiain  that  the  same  question  will  be  propounded  on  a  future 
trial. 

We  come  now  to  the  seventeenth  bill  of  exceptions,  from  which  it 
appears  that,  after  the  conclusion  of  the  argument,  the  court,  of  its  own 
motion,  proceeded  to  instruct  the  jury  upon  the  principles  of  law  by 
which  insanity  is  to  be  tested. 

To  this  action  of  the  court,  in  so  instructing  the  jury  of  its  own 
motion,  as  well  as  to  the  doctrines  therein  laid  down,  the  accused  ex- 
cepted. 

In  the  first  place,  althougii  it  is  not  the  practice  in  Virginia  for  the 
court,  unasked,  to  charge  the  jury  upon  the  law  of  the  case,  yet  the 
mere  fact  that  it  does  so  cannot,  of  itself,  be  assigned  as  error.  Wb- 
mack  v.  Circle.^  The  accused  has  certainly  no  just  cause  of  complaint 
if  the  law  is  properly  expounded. 

There  are  cases,  indeed,  in  which  it  would  be  not  only  proper,  !)ut 
the  duty  of  the  court,  even  though  unnsked,  to  instruct  the  jury  upon 
the  principles  of  law  by  which  they  should  be  governed  in  rendering 
their  verdicts.  We  think,  however,  that  the  practice  in  Virginia  is  a 
wise  one  in  general,  for  it  is  extremely  difficult  to  deliver  charges  to  the 
jury  without  conveying  to  them  some  intimation  of  the  opinion  of  the 
judges  upon  the  e\iden;  i ,  or  using  some  phrase  or  expression  which 
may  constitute  a  ground  of  just  exception. 

In  the  case  before  us,  the  charge  of  the  learned  judge  sets  forth,  at 
threat  length,  and  with  much  minuteness  of  detail,  the  principles  of  law 
by  which  the  jury  were  to  be  guided,  and  the  tests  to  be  applied  in 
cases  of  insanity.  It  is  but  just  to  say  that  the  charge  evinces  much 
elaboration  and  research,  creditable  alike  to  the  industiy  and  the  learn- 
ing of  the  learned  judge.  No  just  exception  can  be  taken  certainly 
to  the  following  exposition  of  the  law :  — 

'*  But  in  every  case,  although  the  accused  may  be  laboring  under 
partial  insanity,  if  he  still  understands  the  nature  and  character  of  his 


<  See  also  1  Philips  on  Evidence,  654; 
Upx.  V.  Searle,  1  M.  &  Rob.  76;  United  Statei 
V.  McGluo,  1  Curt.  1. 


'  29  Gratt.  192. 


22 


THE   LEGAL   TEST   OF   II  JANITY. 


Dejarnette  v.  Commonwealth. 


act  and  its  consequences,  and  has  a  knowledge  that  it  is  wrong  and 
criminal,  and  a  mental  power  sulliciont  to  apply  that  knoAvlcdgc  to  his 
own  case,  and  to  know  that  if  he  does  the  act  he  will  do  wrong,  and 
receive  piinislnnent,  and  possesses,  withal,  a  will  sufficient  to  restrain 
the  impulse  tliat  may  arise  from  a  di>eased  mind,  such  partial  insanity 
is  not  sullicient  to  exempt  him  from  responsibility  to  the  law  for  his 
crimes." 

We  think  the  rule  here  laid  down  is  in  accordance  with  tiie  best 
authorities,  as  well  as  the  dictates  of  reason  and  justice.  The  learned 
judge  also  tells  the  jur}':  "  Tlie  character  of  the  mental  disease  prin- 
cipally relied  u[)(in  to  excuse  tlie  prisoner  is  that  he  did  the  killing 
under  an  irresistible  impulse,  which  was  tlie  result  of  a  diseased  mind." 
He  then  proceeds  to  define  "  an  irresistible  impulse,"  as  a  moral  or 
homicidal  insanity,  consisting  of  an  irresistible  inclination  to  kill  or 
commit  some  otlier  offence,  some  unseen  pressure  on  the  mind,  drawing 
it  to  consequences  which  it  sees,  but  cannot  avoid,  and  placing  it  under 
a  coer('ii>n  which,  while  its  results  are  clearly  perceived,  it  is  incapable 
of  resisting.  The  learned  judge  then  declares  it  was  for  the  jury  to 
«ay  whether  the  prisoner  was  forced  to  do  the  killing  by  such  a  eon- 
trolling  disease  against  his  will,  or  whether  he  did  it  voluntaril}',  with 
intention  to  destroy  the  life  of  the  deceased.  Certainly,  no  sound  ex- 
ception could  be  taken  to  this  definition  of  homicidal  mania,  or  irresisti- 
ble impulse,  as  it  is  sometimes  termed;  a  diseased  state  of  the  mind, 
the  tendency  of  which  is  to  break  out  in  a  sudden  paroxysm  of  violence, 
venting  itself  in  liomicide  and  violent  acts  upon  friend  and  foe  indis- 
criminately. 

The  real  objection  to  the  instructions  is,  tlint  the  jury  are  told  thai 
this  species  of  insanity  is  the  principal  defence  of  the  prisoner.  In- 
deed, this  idea  of  homicidal  mania  pervades  the  whole  charge,  and  the 
jury  might  justly  have  inferred  the  only  question  they  need  to  consider 
was,  whether  or  not  the  accused  was  laboring  under  this  species  of  in- 
sanity at  the  time  of  the  commission  of  the  offence.  We  must,  of 
course,  accept  it  as  true  that  the  defence  of  homicidal  mania  was  relied 
upon  in  the  court  below.  The  record  does  not,  however,  show  the  fact. 
Neither  in  the  testimony  of  the  witness,  nor  in  the  instructions  asked 
for  by  prisoner's  counsel,  is  there  any  special  reference  to  this  species 
of  partial  derangement.  The  effort  of  the  defence  seems  to  have  been 
rather  to  establish  the  existence  of  latent  hereditary  insanity  in  the 
accused,  developed  into  active  exertion  by  the  shock  he  had  received ; 
but  what  form  of  mental  aberration,  whether  homicidal  mania  merely, 


DKLIBKKATIOX   AND    PREMEDITATION. 


23 


Instructions. 


Id  that 
In- 
md  the 
onsider 

of  in- 
uist,   of 

relied 
le  fact. 

asked 
species 
ve  been 
in  the 
ceived ; 
naerely, 


or  tempoi'ai'v  derangenn'nt,  or  general  hallucination  or  delusion,  were 
relied  upon,  tliis  record  does  not  inform  us. 

The  courc  might  very  properly  ha\e  said  to  the  jury,  if  such  was  the 
'act,  that  irresistible  impulse  was  relied  upon  as  a  defence,  and  stated 
the  principles  of  law  applicable  to  the  case.  In  so  doing,  however,  the 
instructions  should  have  been  so  framed  as  not  to  create  the  inii)ression 
upon  the  mind  of  the  jury  that  this  form  of  insanity  was  the  sole  object 
of  their  inquiry. 

With  rcspeet  to  the  three  instructions  given  by  the  court  as  a  substi- 
tute for  those  asked  for  In'  the  prisoner's  counsel,  we  think  they  cor- 
rectly st.ate  the  law.  Tiie  third  instruction,  especially,  is  as  favorable 
to  the  accused  as  is  consistent  with  the  established  rules  of  criminal 
law.  The  instructions  asked  for  on  the  part  of  the  defence  were  prop- 
erly refused. 

The  first  of  the  series  affirms  that  in  order  to  convict  the  prisoner  of 
minder  in  the  first  degree,  the  jury  must  believe  the  killing  was  wilful, 
malicious,  deliberate,  and  preme(litate<l.  Malice  is,  of  course,  a  neces- 
sary ingredient  in  the  crime  of  murder,  and  the  law  infeis  it,  where  the 
killing  is  deliberate  and  premeditated.  The  statute,  however,  in  defining 
the  offence  of  murder  in  the  fiist  degree,  does  not  use  the  W(.rd  mali- 
cious, for  the  simi)le  reason  that  malice  aforethought  is,  in  such  cases, 
it  conclusion  of  law.  To  have  instructed  the  jury,  therefore,  they 
must  be  satisfied  the  killing  was  malicious,  was  to  add  to  tlie  statutory 
definition  of  the  offence,  and  to  beget  the  confusion  in  their  muids  of 
supposing  they  must  find  the  existence  of  malice,  as  a  fact,  where  it 
was  necessarily  implied  by  law. 

The  second  and  third  instructions  are  as  follows :  — 

2.  The  court  further  instructs  the  jury  that  in  weighing  the  evidence, 
as  to  the  malice,  deliberation,  and  premeditation  of  the  prisoner,  they 
should  take  into  consideration  the  condition  of  the  prisoner's  mind  at 
the  time  of  the  receipt  of  the  intelligence  which  led  to  the  homicide, 
and  the  effect  which  the  sudden  intelligence  of  great  calamity  or  over- 
whelming shame  would  have  ui)on  his  mind. 

3.  If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the  kill- 
ing, the  i)risoner,  by  reason  of  a  predisposition  to  insanity,  inherited 
from  his  ancestors,  developed  by  the  information  of  his  sister's  livino- 
in  a  house  of  ill-fame,  was  not  in  a  frame  of  mind  to  deliberate  and 
premeditate,  then  the  killing  would  not  be  munler. 

Both  these  instructions  are  of  so  vague  and  ambiguous  a  character, 
it  is  very  difficult  to  determine  what  precise  proposition  they  were 
•ksigned  to  assert,  or  what  tests  they  were  intended  to  prescribe  as  a 


24 


THE   LEaAL   TEST   OF   INSANITY. 


Dejarnette  v.  Commonwealth. 


measure  of  criminal  responsibiUty.  Tliey  were  calenlated  to  misleati 
the  jury,  and  were  properly  refused.  At  the  same  time  there  are, 
doubtless,  cases  in  which,  whilst  the  prisoner  may  not  be  insane,  in  the 
sense  which  exempts  from  punis:;ment,  yet  he  may  be  in  tliat  condition 
from  partial  aberration  or  enfeeblement  of  intellect,  which  renders  him 
incapable  of  the  sedate,  deliberate,  and  specific  intent  necessary  to 
constitute  mnrder  in  the  first  degree.  These  are  questions  for  the  jury, 
and  not  for  the  court. 

As  has  already  been  stated,  it  is  not  possil)le,  in  the  nature  of  things, 
that  the  court  can  lay  down  any  ab.^ti-act  rules:  with  which  to  measure 
the  minds  of  men  or  to  determine  the  extent  ot  their  criminal  responsi- 
bility in  cases  of  alleged  insanity.  ^ 

The  fourtli  instruction  declares  that  the  prisone.-  is  to  be  acquitted  on 
the  ground  of  insanity,  unless  the  jur}'  are  satisfied  beyond  a  reasona- 
ble doubt  that  the  killing  was  not  produced  by  mental  disease. 

Tlie  proposition  asserted  in  this  instruction  is,  manifestly,  based  on 
the  idea  that  the  jury  must  be  satisfied  beyond  all  reasonable  doubt  of 
the  sanity  of  the  accused,  precisely  as  the  prosecution  is  required  to 
prove  the  guilt  of  the  defendant  to  warrant  a  conviction.  It  is  in 
direct  conflict  with  the  decisions  of  this  couit  in  Bosicell  v.  Common'- 
zvealth, "^  imd  Baccigalupo  V.  The  Comvumivedlth.^ 

In  these  cases  it  was  unanimously  held  that  the  Commonwealth,  hav- 
ing established  the  corpus  delecti,  and  that  the  act  was  done  by  the 
accused,  has  made  out  her  case.  If  he  relies  on  the  defence  of  insanity, 
he  must  prove  it  to  the  satisfaction  of  the  jur}'.  If,  upon  the  whole 
evidence,  the}'  believe  he  was  insane  when  he  committed  the  act,  they 
will  acquit  him  on  that  ground ;  but  not  upon  any  fanciful  idea,  that 
they  believe  he  was  then  sane,  yet  as  there  ma}'  be  a  rational  doubt  of 
such  sanity,  he  is  therefore  entitled  to  an  acquittal.  Insanity  is  easily 
feigned  and  hard  to  be  disproved,  and  public  safety  refpiires  that  it 
should  not  be  established  by  less  than  satisfactory  evidence. 

These  rules  were  laid  down  by  this  court  after  a  careful  examination 
of  all  the  authorities,  and  we  are  not  disposed  to  depart  from  them,  or 
even  to  qualify  tliem  in  the  minutest  particular. 

We  come,  then,  to  the  eighteeiith  bill  of  exceptions,  which  states, 
after  the  conclusion  of  the  o|)ening  speet  h  of  the  C'onunonwealth's  at- 
torney, one  of  the  counsel  for  the  prisoner  announced  to  the  court, 
before  beginning  his  argument,  that  in  the  course  of  his  argument,  if  not 


'  See  Whart.  on  Ilom.,  sect.  584,  and 
notes;  Stephen's  Crini.  Law,  92;  1  Whar. 
Jt  Stille's  Med.  Jour.,  sect.  770. 


«  20  Gratt.  8f)0,  876. 
3  33  Gratt.  807. 


mislead 
ere  are, 
3,  in  the 
anclition 
lers  him 
?sary  to 
he  jury, 


CONDUCT   OF   TUIAL. 


25 


f  things, 
measure 
esponsi- 


litted  on 
reasona- 

>ased  on 

doubt  of 

uired  to 

It  is  in 

7ommo)i- 

1th,  hav- 
by  the 
sanity, 
e  whole 
ct,  they 
ea,  that 
oubt  of 
s  easily 
that  it 

lination 
|hem,  or 

states, 

th's  at- 

court, 

b,  if  not 


Rights  of  Counsel. 


stopped  by  the  court,  lie  would  argue  to  the  jiuy,  that  if,  ui)on  the 
whole  testimony,  the  jury  had  a  reasonable  d(iubt  of  the  prisoner's 
sanity  at  the  time  of  the  killing,  the  prisoner  was  entitled  to  an  atMiuit- 
tal;  and  the  court  stated  to  the  counsel,  that  he  oould  proceed  until  he 
came  to  that  point  in  his  argument,  and  then  the  court  would  say 
whether  it  was  proper  or  not. 

And  when  the  counsel  came  to  that  point  he  attempted  to  argue  to  tlie 
jury  the  above  proposition  of  law,  and  the  court  interrupted  him, 
and  staled  that  such  was  not  a  correct  conclusion  of  law,  and  could  not 
be  argued  to  the  jury  as  law. 

It  will  be  perceived  that  the  counsel  i)roposed  to  argue  before  the  jury 
a  proposition  of  law,  the  very  reverse  of  that  laid  down  by  this  court,  in 
the  cases  already  adverted  to. 

His  attempt  was,  however,  accompanied  with  the  declaration  that  he 
would  maintain  the  proi)Osition  unless  stopped  by  the  court.     This  could 
only  be  construed  as  an  invitation  to  the  judge  to  exi)ress  his  ai)proval 
or  disapproval  of  the  line  of  argument  to  be  pursued.     Had  the  latter, 
under  such  circumstances,  remained  silent,  the  counsel  might  justly  have 
inferred,  and  the  jury  might  have  been  warranted  in  supposing,  that 
tlie  argument  was  made  under  the  sanction  of  the  court.     Counsel  hav- 
ing thus  appealed  directly  to  the  court,  could  nf)t  be  permitted  to  argue 
hrfore  the  jury  in  opposition  to  an  opinion  which  he  himself  had  called 
for.     Whatever  may  be  the  right  of  counsel  in  criminal  cases  to  main- 
tain, by  argument,  any  proposition  of  law,  untramelled  by  the  court, 
where  no  instructions  have  already  been  given,  as  to  which  we  express 
no  opinion  in  this  case,  there  is  less  ground  for  complaint  because,  as 
already  intimated,  the  law  had  been    finall}'  settled  by  two  solemn 
decisions  of  this  court,  and  was  no  longer  open  for  discussion.  *     If  de- 
cisions so  made  may  be  reviewed  and  reversed  at  the  mere  caprice  and 
pleasure  of  juries,  it  is  vain  to  say  that  we  have  any  established  rules 
and  principles  of  criminal  law. 

This  disposes  of  all  the  questions  arising  upon  the  record,  except  the 
motion  to  set  aside  the  verdict  because  it  was  not  sustained  by  the  evi- 
dence. In  view  of  the  fact,  however,  that  a  new  trial  is  to  be  had  on  tlie 
grounds  already  mentioned,  it  is  unnecessary,  and,  indeed,  would  be  im- 
proper for  this  court  to  pass  upon  that  question. 

In  considering  the  various  errors  assigned  in  the  petition  for  an 
appeal,  we  have  carefully  refrained  from  any  expression,  or  even  intima- 
tion, of  an  opinion  with  respect  to  the  character  and  nature  of  the 


'  Whart.  onCrim.  Law,  sect.  327;  Garth's  Case,  3  Leigh,  761. 


20 


TIIK    LKGAL   TKiST    OF   INSANITY. 


People  V.  Kleim. 


(lofciK'i'  made  for  the  accused.  That  is  a  matter  for  the  jury  exchisively. 
Our  duty  is  pcrfonued  in  seeing  to  it,  so  far  as  within  us  lies,  that  the 
prisoner  obtains  a  fair  trial  by  an  impartial  jury,  according  to  the  estab- 
lished principles  and  rules  of  the  criminal  law,  recogni/.ed  by  the  courts, 
and  enforced  by  the  Constitution  and  laws  of  the  country.  The  judg- 
ment of  this  court  is,  that  the  verdict  of  the  jury  be  set  aside,  and  u 
new  trial  awarded  the  accused,  in  conformity  with  the  views  hereiu 
expressed. 


TEST  OF  INSANITY  — INSANITY  AT  THIAL  — PRACTICE- 

OATH  —  EXPERTS. 

People  v.  Kleim. 


•FORM  OF 


[Kdni.  8t'l.  ('as.  i;5.] 

In  the  Xeio   York  Couri  of  Oijer  and  Terminer,  March,  1S45. 

Bcforo  Hon.  .Jou.n  W.  Edmonds,  Circuit  Judge. 

1.  Test  of  Insanity  —  Ability  to  Distinguish  Between  Rijrht  and  Wronjr  of  Act.  — 

'riu.'  to.-t  (iT  iii^anily  us  ii  defonce  to  criinc  is  wheUier  or  not  lliu  iirl.'-oner  wns  laboring 
under  such  a  defect  of  reason  from  disease  of  the  mind  as  not  to  know  tlie  nature  and 
<iuality  of  the  act  he  was  doing,  or  if  lie  did  know,  that  he  did  not  know  he  was  doing 
wliat  was  wrong. 

2.  Insanity  at  Trial  —  Practice.  —  The  mode  of  trying  present  insanity  at  trial  stated. 

3.  Same.  —  The  form  of  oath  administered  to  tho  jury  in  such  <',ases. 

4.  Same.  —On  such  in(iuiry  the  jirisoner  holds  the  affirmative  of  the  issue. 

5.  Medical  Experts. —  The  iiroi)er  form  of  (luestions  to  be  put  to  medical  experts  stated. 

The  prisoner  was  arraigned  on  an  indictment  charging  him  with  the 
wilful  murder  of  Catherine  Ilanlin,  on  the  23d  of  December,  1844.  On 
being  called  upon  to  plead,  his  appearance  and  deportment  were  such  as 
to  excite  doubts  in  the  mind  of  the  court  as  to  his  sanity.  In  reply  to 
questions  from  the  circuit  judge,  the  prisoner  stated  he  had  been  six- 
teen years  in  this  country;  that  he  had  no  relatives  or  friends  here ; 
that  he  did  not  know  why  he  was  brought  into  court,  and  that  he  had 
no  counsel  to  speak  for  him,  and  did  not  wish  any. 

The  court  thereupon  assigned  A.  Benedict,  L.  B.  Sheppard  and  E. 
J.  Porter,  counsel  to  defend  the  prisoner. 

The  Counsel  for  the  Prisoner,  after  consultation,  objected  to  the  pris- 
oner being  called  on  to  plead,  or  submit  to  a  trial,  on  the  ground  of  his 


INSANITY   AT    TKIAL. 


27 


lusivcly. 
that  the 
lie  cstab- 
c  courta, 
lie  juilg- 
e,  and  a 
s  herein 


Construction  of  Statuto. 


JRM  OF 


S4o. 


of  Act.  - 

'ns  laboring 

liiature  and 

was  doing 

stated. 


Its  stated. 

with  the 
I44.     On 
such  as 
[reply  to 
.>en  six- 
is  here ; 
he  had 

land  E. 

|he  pris- 
of  his 


present  insanity, •  and  moved  that  incpiiry  should  be  made  into  that  fact, 
in  such  niannrr  as  the  court  might  direct.  It  was  insisted  liy  tlicm  that 
the  (luestic^n  of  present  insanity  might  be  raised  by  the  coiut  iiixm  in- 
spection of  the  prisoner,  as  in  tiie  cases  of  tlio  Commnntcna'h  v.  Jlath- 
aivay,-  and  Commomccalth  v.  Brnlcy,'^  or  by  the  counsel  for  the  prisoner  ; 
and  tliat  the  question  might  Ite  determined  by  the  coiu't  with  the  aid  of 
a  medical  commission,  as  Avas  done  in  France  in  the  case  of  Ilenriette 
(Drnier,  and  other  cases,  or  iini)anel  a  jury  for  the  purpose.  That  the 
latter  was  the  common  law  practice  as  laid  down  in  1  Hale's  P.  C.,^ 
wliich  was  followed  in  the  case  of  Ilathawa}^  cited  above,  and  api)i'oved 
in  Barbour's  Cr.  Law,'*  and  that  tlie  statute,  being  in  allirmance  of  the 
connnon  law,  and  designating  no  method  of  procedure,  tlie  common 
law  mode  must  be  that  intended  to  be  i)ursued. 

The  District  Attorney^  contra,  contended  that  the  proper  course  would 
be  that  the  prisoner's  plea  should  be  recorded,  and  a  jury  impanelled  to 
inquire  into  the  question  of  present  insanity,  and  try  the  issue  on  the 
indictment  at  the  same  time. 

Tlie  CincriT  JcDCii::  The  statute  on  this  subject  merely  .says  that  an 
insane  person  shall  not  be  tried,  but  is  entirely  silent  as  to  the  m:iniier 
in  which  the  insanity  is  to  be  ascertained.  Thai  is,  therefore,  neces- 
sarily left  to  the  discretion  of  tlie  court  in  which  the  Suggestion  of  in- 
sanity shall  be  made. 

In  some  instances  this  has  been  inquired  into  by  the  same  jury  who 
tried  the  main  question  of  guilt  or  innocence,  and  at  the  same  time. 
Rut  this  was  objectionable,  because  it  mingled  together  questions  which 
ought  to  be  kept  distinct,  and  he  had  witnessed  a  recent  case  of  the 
kind  in  the  Second  Circuit,  in  which  the  learned  judge  of  that  circuit 
had  exiiressed  his  regret  that  the  suggestion  of  present  insanity  had 
been  made  at  so  late  a  stage  of  the  trial  as  to  compel  this  course. 

The  inquiry  might,  doubtless,  also  be  made  by  the  aid  of  a  quasi- 
comniission,  in  the  nature  of  one  de  Innatico  inquiren'Jo,  and  thus,  as 
had  been  suggested  by  the  prisoner's  counsel,  the  aid  of  experts  might 
be  invoked  by  the  court. 

But  the  court  held  it  proper  to  adhere  to  the  common-law  mode  of 
trial,  and,  therefore,  directed  a  jury  to  be  impanelled  to  try  the  issue  of 

present  insanity. 

April,  1845. 

Tlie  prisoner  was  again  brought  into   court,    and  the    jury  sworn 

"  diligently  to  inquire,  and  a  true  verdict  return,  on  behalf  of  the  Peo- 


'  2  R.  S.  698,  sect.  2. 
'  11!  Mass.  299. 
2  1  /(/.  103. 


<  pp.  34,  35. 
'  p.  300. 


28 


THE    LEGAL    TEST    OF    LNSANITV. 


People  V.  Kleiiu. 


pic  of  the  State  of  Nrw  York,  whether  Andrew  Kleim,  the  prisoner  lU 
the  bur,  who  now  stands  indicted  for  nuinh'r,  be  of  sound  mind  and 
understanding,  or  not,  and  u  true  verdict  give  according  to  the  best  of 
their  understanding." 

Benedict,  for  tlie  prisoner,  claimed  to  hold  the  aflirmative. 

PkuCiiuam:  Tliat  is  riglit.  You  are  to  malie  out  afllrniativcly  that 
the  prisoner  is  now  insane. 

Sevi'r:il  witnesses  were  then  examined  in  relation  to  the  condition  of 
his  mind. 

The  Prisoner^ H  Cnmisel  contended  that  a  state  of  mind  which  would 
warrant  a  conunission  de  lunatico  out  of  chancery,  would  be  sullicient 
to  justify  a  verdict  for  the  prisoner  on  the  present  issue. 

The  Dintrii't  Attorney  insisted  that  such  a  verdict  would  be  warranted 
only  by  a  state  of  insanity  which  would  excmi)t  him  from  legal  lespon- 
sibility. 

The  CiiJcriT  Judge  charged  the  jury  that  there  were  two  degrees  of 
mental  disease  known  to,  or  recognized  by,  our  laws.  One  described  as 
"idiots,  lunatics,  persons  of  unsound  mind,"  and  the  oilier  as  "  insane 
persons,"  either  of  which  would  warrant  the  Court  of  Chancery  to  in- 
terfere, by  appointing  a  committee  to  take  care  of  the  estate  of  the  per- 
son so  afllicted,  because  his  mind  was  so  diseased  or  infirm  as  to  render 
him  incapable  of  managing  his  own  affairs.  And,  as  the  question  in 
this  case  seemed  to  be  whether  the  prisoner  was  now  in  such  a  condition 
of  sanity  as  to  permit  him  to  prei)are  for  and  manage  his  defence  on  the 
charge  in  the  indictment,  it  might  be  supposed  that  it  would  be  enough 
for  him,  on  this  inquiry,  to  establish  the  lesser  degree  of  unsoundness, 
namely :  that  which  went  so  far  only  as  to  render  him  incapable  of  man- 
aging his  affairs.  But  the  statute  had  established  a  different  rule,  and 
had,  in  reference  to  this  inquiry,  required  the  higher  degiee  of  unsound- 
ness of  mind,  that  which  the  law  allowed  to  exempt  from  legal  responsi- 
bility. The  provision  of  the  statute  '  was  that  no  act  done  by  a  person 
in  a  state  of  insanity  can  be  punished  as  an  offence ;  and  no  insane 
person  can  be  tried  or  sentenced  to  any  punishment,  or  be  punished  for 
any  crime  or  offence,  while  he  continues  in  that  state.  In  order,  there- 
fore, for  the  iwvy  to  be  warranted  in  finding  the  aflirmative  of  the  issue 
now  presented,  they  must  be  satisfied  that  the  prisoner's  mind  was  now 
in  such  a  state  of  unsoundness  or  disease  as  to  exempt  him  from  re- 
sponsibility ;  and  not  merely  that  he  was  so  infirm  as  to  render  him 
incapable  of  managing  his  own  affairs. 

The  jury  found  that  the  prisoner  was  not  now  insane. 


b 


1  2  R.  S.  697,  sect.  2. 


DErLAKATIOXS   OF    DKCKASED. 


2f> 


Facts  of  the  Case. 


)risoner  ul 

mind  niul 

Llie  best  of 


lively  that 

ndition  of 

jich  would 
!  sullicient 

warranted 
;al  respon- 

logrees  of 
scribed  as 
s  '*  insane 
,'ery  to  in- 
)f  the  per- 
I  to  render 
estion  in 
condition 
ICC  on  the 
)e  enough 
)undness, 
of  man- 
ule,  and 
unsound- 
responsi- 
a  person 
io  insane 
ished  for 
ir,  there- 
the  issue 
was  now 
from  ra- 
ider him 


May  21,  1«45. 

The  prisoner  was  now  arruignetl  on  the  main  issue,  and  by  his  coun- 
sel i)lead('d  nnt  (jnilty. 

The  indictment  charged  the  prisoner  with  the  wilful  murder  of  Cath- 
erine Ilanlin,  at  the  city  of  New  York,  on  the  2;kl  of  December,  18M, 
by  setting  fire  to  the  dwelling  in  which  she  resided,  and  forcibly  detiiin- 
iiig  her  therein  ;  also,  inflictiiiix  on  her  wounds  by  a  shar|)  instrument; 
by  means  whereof  she  was  so  suffocated  and  in,jurc(l  as  to  cause  her 
death. 

The  District  Attorney  offered  in  evidence  a  deposition  of  the  deceased, 
taken  and  sworn  to  on  the  2'2d  of  December,  1844,  before  the  connnit- 
tiug  magistrate,  and  which  deposition  was  again  sworn  to  by  her  before 
the  coroner  on  the  following  day,  in  the  presence  of  the  prisoner  and 
his  counsel,  having  been  previously  read  over  to  her  b}'  the  coroner.  It 
was  proved  that  she  was  dangerously  ill  at  the  time,  and  in  imminent 
l)eril  of  death  ;  that  upon  being  asked  by  the  coroner  if  she  considered 
herself  in  a  dying  situntion,  she  answered  several  times,  she  "  hoj.ed  to 
God  she  might  get  well,"  and  that  she  "  hoped  God  would  have  mercy 
on  her."  She  was  then  in  the  hospital,  where  she  remained  until  her 
death,  which  took  place  on  the  third  day  following. 

The  Prisoiier's  Counsel  objected  to  the  deposition  being  received  in 
evidence  as  a,  declaration  made  in  extremis,  contending  it  had  not  been 
shown  that  the  deceased  was  full}'  conscious  of  her  hopeless  situation  ; 
and  that  her  declaration  had  not  been  made  under  such  a  realizing  sense 
of  impending  death  as  was  essential  to  impart  to  it  the  sanctity  of  an  oath. 

The  CoiUT  was  of  opinion  that  the  consciousness  of  her  actual  situa- 
tion was  sufficiently  apparent,  and,  therefore,  overruled  the  objection 
and  admitted  the  evidence. 

It  was  proved,  on  behalf  of  the  prosecution,  that  the  deceased,  with 
her  husband  and  children,  resided  in  a  wooden  shanty  or  dwelling,  the 
only  door  of  which  was  in  the  frtjut,  and  that  it  was  distant  about  five 
yards  from  the  prisoner's  residence.  On  the  21st  of  December  the 
prisoner  had  thrown  stones  at  the  deceased,  who  expressed  the  intention 
of  taking  out  a  warrant  against  him.  On  the  morning  of  the  following 
(lay,  between  six  and  seven  o'clock,  the  prisoner  came  out  of  his  house 
and  piled  wood-shavings  and  straw  at  the  door  of  the  deceased's  resi- 
dence, to  which  he  then  set  fire.  The  deceased  attempted  to  escape 
through  the  door,  but  was  forcibly  thrust  back  by  the  prisoner,  who 
stabbed  her  in  the  thigh  with  a  sharp  instrument  attached  to  a  stick. 
She  went  to  the  window  with  her  son,  a  boy  of  about  thirteen  years  of 
age,  when  the  prisoner  threatened  to  cut  her  throat  •  she  then  swooned 


30 


THE   LKOAL   TKST    UK    INSANITY 


I'uopltj  V.  Klolni. 


:i\V!iy  uiul  became  .senseless.  The  prisoner  retired  to  his  own  house, 
iuid  the  iieijfhitDi's,  to  reseuo  the  inniati's  of  the  slianty,  broke  open  ii 
window  and  took  out  the  boy  and  an  infant  unliurt.  They  found  the 
deceased  lying  insensil)le  on  a,  bed.  Thu  prisoner  fastened  his  own 
house,  which  was  shortly  tiflerward  broken  open  by  the  ollicers  who 
arrested  him. 

The  defence  was  insanity,  iind  several  witnesses  testified  to  the 
general  deportment,  and  to  particular  acts  of  the  prisoni'r,  for  a  long 
time  prior  and  down  to  the  time  of  tlie  commission  of  the  offince,  for 
the  purpose  of  proving  his  insanity  at  that  time,  und  for  a  considerable 
period  previous  thereto. 

The  following  medical  witnesses  were  then  examined  on  l)ehalf  of  the 
prisoner:  Dr.  Tellkanii)ff  testified  that  he  had  given  a  good  deal  of 
attention  to  cases  of  insanity.  He  had  seen  the  i)risoner  several:  times 
since  his  ariest,  and  at  each  interview  had  conversed  with  him  both  in 
the  English  and  German  languages.  From  this  investigation  witness 
concluded  he  had  been  suffering  from  monomania  or  melancholia,  and 
that  he  was  insane ;  he  appeared  quite  insensible  as  to  the  fate  that 
awaited  him,  and  did  not  seem  conscious  of  the  offence  ho  had  com- 
mitted. The  witni'ss  had  heard  tlie  previous  testimony  on  the  trial. 
He  did  not  consider  the  [irisoner  to  have  been  imbecile  from  birth.  Dr. 
I'liny  Earle,  Superintendent  of  the  Bloomingdale  Lunatic  Asylum,  had 
been  specially  engaged  in  the  treatment  of  insane  persons  for  more 
than  three  years.  At  the  request  of  the  circuit  judge  the  witness 
visited  the  prisoner  several  times  since  his  arrest.  He  had  heard  the 
previous  evidence  on  the  trial.  The  witness  was  then  asked  by  prison- 
er's counsel,  if,  from  the  evidence  of  the  witnesses  he  had  heard  tes- 
tify, as  well  as  from  his  own  experience  and  obsei'vation,  he  was  of 
opinion  that  the  prisoner  was  insane? 

The  District  Attorney  objected,  and 

The  Ciuci  IT  JiDOE  decided  that  the  question,  if  admissible  at  all, 
could  not  be  put  until  after  all  the  testimony  relative  to  the  question  of 
sanity  had  been  given,  and  even  then,  m^tin  the  form  now  proposed. 

The  witness  then  testified,  that  from  his  personal  examination  of  the 
prisoner,  and  without  regard  to  any  of  the  testimony  given,  he  believed 
the  prisoner  to  be  insane;  that  his  stolid  expression  of  countenance, 
and  his  apparent  apathy  for,  and  unconsciousness  of,  his  situation,  had 
tended  to  the  formation  of  witness'  opinion. 

The  Prisoner's  Counsel  then  asked :  "  From  the  testimony  you  have 
heard  in  this  case,  in  relation  to  the  conduct  and  previous  life  of  the 


asl 
\vi| 
111 

stil 
.lui 
by  I 

u"f 

sta 
he 


EVlliKNCK    Ol"    I:\IM: UTS. 


31 


Form  of  (jiit'stli»ii« 


vn  lioiise, 
Ivo  open  u 
fotiiid  tlic 
1  lii.s  own 
iccrs  who 

(1  to  the 
For  ji  loiiji 
t'liicc,  for 
isidcrable 

!ilf  (»f  the 

I  deal  of 
rat  times 
u  both  ill 

II  witness 
olia,  and 
fate  tliat 
lad  com- 
;lie  trial, 
th.     Dr. 

in,  had 
r  more 
T\'itne.ss 
ird  the 
prison- 
ird  tes- 
was  of 


at  all, 
ition  uf 
sed. 

of  the 
elieved 
nance, 

n,  had 

have 
of  the 


prisoner,  what  is  yoin*  oi)inion  of  the  stale  nt  his  mind  at  the  lime  of  the 
c'onunission  of  the  act  for  which  he  stands  charj^i-d  ?  " 

'J'lie  District  AHorncy  ohjected  that  the  question  was  baseil  on  the 
assumption  of  tin'  truth  of  the  facts,  and  involved  an  expression  of  the 
witness'  opinion  as  to  their  truth,  wliicli  was  a  point  to  Ik;  decided  by 
liie  .jnry. 

The  CoiKT  disMllowcd  the  (jwestion,  observiiiLC  that  it  soniiiit  to  sid)- 
stitnte  the  opinion  of  tlie  witni-ss  for  tiie  decision  of  llie  jury  ;  that  the 
(|uestion  should  not  be  limited  or  conliued  to  any  particular  i)eri(jd,  for 
by  so  doing  the  medical  witnesses  would  be  made  to  usurp  the  province 
of  the  jury.  It  was  true  that  the  issue  to  be  trie(l  was  the  prisoner's 
stale  of  inind  at  the  time  of  committing  the  offence,  — that  ])oint  was  to 
l)e  di'termiued  by  the  jury. 

On  the  cross-i-xamination  of  tlu'  witness,  the  district  alUjrnev,  after 
stating  seveial  of  the  facts  relating  to  the  prisoner's  conduct,  which  has 
lieen  proved,  asked  if  such  fncts  would  affect  or  alter  the  witness' 
opinion  as  to  his  sauit}'. 

The  Prisoner's  Comisd  olgected  that  the  case  put  by  the  (juestion  diil 
not  include  all  the  facts  which  had  been  proved,  all  of  which  should  be 
included  as  the  basis  of  the  opinion  of  the  witness. 

The  CouKT  agreed  with  the  prisoner's  counsel  that,  in  view  of  the 
main  question,  the  proper  course  was  to  ask  the  opini(jn  of  the  witness 
on  all  facts  given  in  evidence,  as  the  selection  of  particular  parts,  or 
classes  of  actions,  as  the  foundation  of  opinions,  would  lead  to  a  great 
prolixity,  and  tend  to  no  satisfa(!tory  result.  Viewing  it,  however,  as 
a  means  of  testing  the  accuracy  of  the  witness'  observation,  and  the 
value  of  his  opinion,  the  question  was  relevant  and  must  be  allowed. 

On  re-examination,  the  witness  was  asked:  "  Whether  the  conviction 
he  had  formed  from  his  own  examination  of  the  prisoner  hail  been  con- 
firmed by  the  testimony  he  had  heard  in  court?"  which  question  was 
objected  to. 

The  CoLRT  overruled  the  question  as  involving  an  expression  of  opin- 
ion as  to  the  truth  of  the  facts  testified  to. 

Dr.  J.  11.  Schmidt  testified  that  he  had  examined  the  prisoner  with 
regard  to  his  state  of  mind,  and  that  from  his  observation,  and  the 
general  appearance  of  the  prisoner,  he  thought  him  to  be  insane.  lie 
was  of  opinion  that  the  prisoner  was  laboring  under  the  mental  disease 
termed  dementia,  which  included  imbecility,  monomania,  and  according 
to  some  writers,  though  not  in  the  opinion  of  the  witness,  idiocy. 

The  District  Attorncu  pressed  the  witness  to  state  what  division  of 
dementia,  as  defined  above,  the  prisoner  was  laboring  under,  l)ut  — 


32 


THE  i,i:gal  test  of  insanity. 


People  V.  Kleim. 


'The  CoLUT  restraineil  further  inquiry  upon  this  point,  tlie  circuit 
ju(\ge  observing  that  the  witi."'ss  had  already  stated  the  distinguishing 
features  of  the  generic  term  dementia;  that  it  would  be  useless  to  pursue 
the  subject  through  all  the  divisions  and  class" ncations  of  Avriters  on 
the  subject,  as,  wlien  he  should  charge  the  jury,  he  should  instruct 
them  that  the  question  for  their  deterraination  was  the  prisoner's 
capacity  to  distinguish  between  right  and  wrong ;  whether  he  v.'cr:  lab  > 
ing  under  such  alienation  of  mind,  dementia,  monomania,  or  whatever 
else  it  might  be  called  as  ainountetl,  in  their  judgment,  to  such  a 
deprivation  of  reason  as  to  exempt  him  from  legal  responsibility  for 
crime  ;  and  that,  in  forming  their  conclusion,  they  were  not  to  be  gov- 
eined  by  the  refinements  or  distinctions  found  in  the  books  on  insanity, 
and  introduced  into  those  treatises,  merely  as  heliis  to  an  orderly  and 
logical  mode  of  treating  the  subject. 

The  P7'isoner'3  Counsel  h;re  rested,  and  the  district  attorney  called 
witnesses  to  rebut  the  defence.  The  police  ofllcer  who  conveyed  the 
prisoner  to  gaol  was  asked:  "  If  at  the  time  of  the  prisoner's  arrest,  and 
during  his  way  to  prison,  the  witness  saw  any  fact,  or  observed  any 
action  which  he  thought  so  inccherent  as  to  make  him  believe  the  pris- 
oner was  disordered  in  his  mind?  " 

This  was  objected  to  as  involving  an  expression  of  opinion  upon  the 
facts  or  actions. 

The  CouuT  allowed  the  question,  on  the  ground  that  it  was  only 
asking  if  the  witness  had  observed  anything  strange  or  unusual. 
Regarding  the  facts,  it  was  a  jiroper  question,  and  it  was  difficult  to 
separate  the  opinion  from  the  fact. 

The  District  Attorney  asked  of  one  of  tlie  medical  witnesses  called  for 
the  prosecution:  *'  Whether,  if  the  prisoner  had  ccmmitted  homicide,  he 
had,  in  tne  opinion  of  witness,  sufHcient  capacity  to  know  ho  was  vio- 
lating tho  moral  law?  " 

The  C(»UKT  overruled  the  (pie^tioii,  inasmuch  as  that  was  [necisely  the 
issue  which  Avas  submitted  to  tiie  jury,  and  it  would  be  usurping  their 
pntvince  to  allow  it  to  be  put  to  the  witness. 

The  CmcriT  Jruoi:,  during  the  progress  of  the  examination  of  the 
medical  witnesses,  said  that  the  court,  yielding  to  the  authority  of  the 
Cose  of  Ahner  Bi.qi-rft,  ^  in  which  the  same  defence  was  set  up,  would 
adopt  the  form  of  question  thei'j  allowed,  which  wrs:  "Assuming  the 
facts  to  be  true  which  you  have  heard  testified  to,  what  is  your  opinion 
as  to  the  prisoner's  sanity,  or  otherwise?  "  and  would  confine  the  coun- 
sel for  the  defence  to  that  fo'in  of  question. 


Com.  c.  Kogers,  7  M<'tc,  5(10. 


le  circuit 
Jiguishing 
to  pursue 
writers  on 
I  instruct 
irisoner's 
^'Cir.  lab  :•- 
wliatever 
;o  such  a 
Ability  for 
o  be  gov- 
» insanity, 
derly  and 

ley  called 
vcycd  the 
rrest,  and 
grved  an}' 
the  pris- 

upon  the 

was  only 
unusual. 
ilHcult  to 

jailed  for 

licido,  he 

hvas  vio- 

|isely  the 
Ing  their 

in  of  the 
ly  of  the 
I),  -would 
liing  the 
ojiinion 
lie  coun- 


EVIDENCE   OF   FORMER   VERDICT. 


33 


rrojudicc  against  Defense  of  Insanity. 


Tlic  District  Attorney  then  offered  to  prove  b}-  the  records  of  the 
court,  the  proceedings  on  the  inquiry  as  to  the  prisoner's  sanity  at  tlie 
time  of  his  being  first  arraigned  on  tiiis  indictment,  and  which  arc  above 
set  forth.  lie  contended  that  the  verdict  on  that  inquiry  was  competent 
evidence  to  go  before  the  jury  on  the  present  issue. 
Tiic  Prisoner'' s  Counsel  objected. 

TiiK  CoriiT:  It  does  not  appear  from  the  case  cited  by  the  prose- 
cuting counsel  ■whether  the  proof  was  admitted  after  objection,  or 
introiluced  by  consent.  To  admit  the  verdict  on  the  previous  inquiiy, 
would  involve  the  necessity  of  going  into  the  testimony  on  which 
it  v/as  predicated;  and  thus  cause  the  present  jury  to  sit  in  review 
of  that  verdict  while  trying  the  issue  now  presented  to  them.  The 
evidence  is,  therefore,  inadmissible. 
The  CiKCL'iT  Jnixiic  charged  the  jury  as  follows  :  — 
He  told  them  that  there  seemed  to  be  no  dovibt  that  Kleim  had  been 
guilty  of  the  killing  imputed  to  him,  and  that  under  circumstances  of  atroc- 
ity and  deliberation  wliicli  we?"e  calculated  to  excite  in  their  minds  strong 
feelings  of  indignation  against  him.  But  they  must  beware  how  they 
permitted  such  feelings  to  influence  their  judgment.  Tliey  must  bear 
in  mind  that  the  object  of  punishment  was  not  vengeance,  but  reforma- 
tion ;  not  to  extort  from  man  an  atonement  for  the  life  which  he  cannot 
give;  but  by  the  terror  '  the  example  to  deter  others  from  the  like 
offences;  and  that  nothing  was  so  likely  to  destroy  the  public  confi- 
dence in  the  administration  of  criminal  justice  as  the  inlliction  of  its 
pains  upon  one  whom  heaven  had  already  al!!icte>l  with  tlie  awful 
ranlady  of  insanity. 

It  was  true  that  insanity  was  sometimes  .'''igned  ;  bi;t  in  the  present 
advanced  stage  of  the  knowledge  of  the  disease,  it  was  almost,  if  not 
quite,  impossible  that  such  simulation  could  escape  detection  and 
e::pnsure  wlien  suojected  to  a  careful  and  skilful  examination.  So  it 
w;u  true  that  the  plea  of  insanity  was  sometimes  ad(Ji)ted  as  a  cloak  for 
criras,  and  a  shield  against  the  consequences  of  its  perpetration,  and 
cases  had  occrred  —  that  of  Amelia  Norman,  and  a  recent  occurrence 
at  I'hilodelphia,  were  familiar  instances  —  where  popular  feeling  ran  so 
stroni;  in  favor  of  tiie  criminal  on  trial  as  to  induce  juries  to  seize  with 
avidity  upon  this  as  an  excuse  for  indulgiiig  tlioir  predilections  for  the 
prisoners.  These  things  had  worked  in  the  public  mind  a  prejudice 
against  the  defence  of  insanity,  and  had  produced  in  courts  and  juries 
a  disposition  to  receive  it  with  extreme  jealousy,  and  scrutinize  it  with 
praiseworthy  caution.  Yet,  under  all  these  disadvantages,  it  Avas,  un- 
fortunately equally  true  that  many  more  persons  were   unjustly  con- 

s 


34 


THE    LEGAL   TEST   OF    INSANITY. 


People  V.  Klelra. 


victecl,  and  caused  to  suffer  the  punishment  for  crime,  to  wliom  their 
'unquestioned  insiinity  ouglit  to  have  been  an  unfailing  protection. 

After  mentioning  two  or  three  C!isi>3  of  the  kind,  of  a  remarkable 
character,  he  alluded  to  the  examination  he  had  then  lately  made  among 
the  insane  convicts  at  the  State  prison  at  Sing  Sing,  where  he  found 
that,  of  thirty  such  persons,  twcMity-two  were,  beyond  all  question,  in  a 
state  of  mental  aberration  at  the  time  of  their  committal.  He  told  the 
jury  that  he  referred  to  these  matters  in  order  to  impress  upon  their 
minds  the  necessity  of  calm  doliberation,  with  an  entire  freedom  from 
prejudice. 

He  instructed  them,  also,  that  it  was  by  no  means  an  easy  matter  to 
discover  or  define  the  line  of  demarcati(jn  where  sanity  ended  and  in- 
sanity began,  and  it  very  frequently  occurred  that  a  mental  condition  of 
aberration  shaded  off  from  a  sound  state  of  mind  so  gradually  and  im- 
perceptibly that  it  was  dillicult  for  those  most  "  expert  "  in  the  disease 
to  detect  or  explain  its  begiiming,  extent  or  duration.  And  in  this,  as 
in  other  diseases  of  the  human  system,  there  was  an  infinite  variety,  i:i> 
great,  indeed,  as  almost  to  justify  tiie  remark  that  no  two  cases  vor 
ever  precisely  alike.  Hence  it  was  necessaiy  for  him  to  remark  to  the 
jur}',  in  regard  to  the  different  kinds  of  insanity,  which  writers  on  the 
subject  had  described,  and  to  which  their  attcnti(vri  had  been  so  earn- 
estly directed  by  the  pn^secution,  that  it  would  be  proper  fur  them  to 
pay  attention  to  such  classifications  only  so  far  as  to  enable  them  to  un- 
derstand the  positions  of  these  wiiters  ;  and  those  classifications  were, 
in  a  great  measure,  arbitrary,  and  had  l)een  adopted  mainly  for  the 
purpose  of  obtaining  a  clear  and  lucid  manner  of  treating  the  subject ; 
and  the  jury  were  not  obliged  to  bring  the  case  of  the  prisoner  within 
any  one  of  the  olassco  or  kinds  of  insanity  thus  defined,  in  order  to 
acquit  him  of  legal  responsibility,  for  it  was  a  well  established  fact  tlint 
the  diiiffuostics  of  the  different  kinds  were  continually  running  into, 
and  mingling  with,  oach  other. 

So,  too,  it  was  important  that  the  jury  shouUl  be  made  precisely  to 
understand  how  much  weight  was  to  be  givci">to  tho  opinions  of  medical 
witnesses.  The  discoveries  in  the  nature  of  the  disease,  and  the  im- 
provements in  the  mode  of  its  treatment,  had  been  so  great  in  modern 
times  that  it  had  become  almost  a  distinct  department  of  medical  science, 
to  which  some  ])ractitioncrs  devoted  themselves  exclusively.  The 
opinions  of  such  persons,  especially  Vr'hen  to  their  knowledge  they  added 
the  experience  of  personal  care  of  the  insane,  could  never  be  disre- 
garded with  safety  by  courts  and  juries.  And,  on  the  other  hand,  the 
opinions  of  physicians  who  devoted  their  particular  attention  to  the  dis- 


DIFFERENT    KINDS    OF   STATITOUV    INSANITY. 


35 


Test  iiiKi  Hiinlcn  of  Proof. 


m  their 

n. 

arkable 


e  found 
on, in  a 
iold  the 
)n  thoir 
•m  from 

liitter  to 
I  iind  in- 
dition  of 
and  im- 
B  disease 
1  this,  as 
iviety,  eu 
ises  'Aer'- 
:k  to  the 
rs  on  the 
so  earn- 
tliem  to 
in  to  un- 
113  v\ere, 
for  the 
snhjcct,' 
r  within 
order  to 
If  rtct  that 
ling  into, 

:;isely  to 

medical 

the  ini- 

modern 

Iseionco, 

IV.     Tlie 

[y  added 

le  disre- 

land,  tlie 

the  dis- 


ease, were  not  of  any  more  vahie  than  the  opinions  of  persons  in  other 
callings,  nor,  indeed,  of  so  much  value  as  tlie  opinions  of  many  not 
educated  to  the  profession,  but  who  had  been  so  situated  an  to  have 
given  particular  attention  to  the  disease,  and  to  patients  suffering 
under  it. 

There  were  two  kinds  of  unsoundness  of  mind  recognized  in  the  stat- 
utes. One  described  as  "lunatics,  persons  of  unsound  mind  and  in- 
capable of  conducting  their  own  affairs,"  and  the  other  coiiiprelu'wded 
under  the  general  appellation  of  "insane  persons."  It  is  with  the 
latter  class  only  that  we  have  to  do  in  the  administration  of  criminal 
justice,  and  the  inquiry  for  the  jury,  therefore,  was  wliether  the  pris- 
oner was  an  "  insane  person."  What  is  meant  by  an  "  insane  person  " 
is  now,  and  long  has  been,  a  matter  of  great  dilTlculty.  At  one  time  it 
was  held  l)y  courts  to  be  only  such  an  overthrow  of  the  intellect  that 
the  at!licted  person  must  "  know  no  more  than  brutes  "  to  be  exempt 
from  responsibility.  At  another  time,  he  must  be  "  unable  to  count 
twenty."  As  science  and  the  knowledge  of  the  disease  progressed,  it 
was  found  that  very  many  were  excluded  ])y  this  very  contracted  rule 
'"om  the  protectic  -.  to  which  they  were  justly  entitled,  and  the  rule  h.as 
been  extended  in  modern  times  until  it  begins  to  comprehend  within  its 
saving  influences  most  of  those  who,  by  the  visitation  of  disease,  are  de- 
prived of  the  power  of  self-government.  Yet  the  law,  in  its  slow  and 
cautions  progress,  still  Ings  fnr  liehiml  the  advance  of  true  knowledge. 

The  inquiry  to  be  made  uiid:  ■•  t!ie  rule  of  law. as  now  established,  was 
as  to  the  prisoner's  knowledge  of  right  and  Avrong  at  the  time  of  com- 
mitting the  offence.  Everyman  is  to  be  presinned  sane,  and  to  possess  a 
^utlicient  degree  of  reason  to  be  rt sponsible  for  his  crimes  until  the  con- 
trary be  proved  to  the  satisfaction  of  the  jury;  and  to  estal)lish  a 
defence  on  the  ground  of  insanity,  it  must  be  clearly  pi'oAed  that  at  the 
tune  of  committing  the  act,  the  party  accusid  was  laboring  uiMler  such  a 
•lefect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature 
:ind  qualit}'  of  the  act  he  was  doing,  or  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  was  wrong.  And  the  question  whetner  the 
accused  knew  the  difference  between  right  and  Avronr,  is  not  to  be  put 
generally,  bui^  in  reference  to  the  very  act  with  wiiich  he  is  charged,  and 
the  inquiry,  tlicrefore,  is,  had  the  accused  a  sutlicieiu,  degree  of  reason 
to  know  that  he  was  doing  an  act  that  was  wrong,  or  was  he  laboring 
under  the  species  of  mental  aberration  which  satisfied  the  jury  that  he 
was  quite  unaware  of  the  nature,  character,  and  consequences  of  the  act 
he  was  committing. 

If  some  controlling  disease  was,  in  truth,    the  acting  power  witLiu 


' 


86 


THE    LEGAL   TEST   OF    INSANITY. 


People  V.  Kleim. 


him,  which  he  could  not  resist,  or  if  he  had  not  a  sufficient  use  of  his 
reason  to  control  the  passions  wliich  prompted  the  act  complained  of, 
he  is  not  responsible ;  but  we  must  be  sure  not  to  be  misled  by  a  mere 
impulse  of  passion,  an  idle,  frantic  humor,  or  unaccountable  mode  of 
action,  but  inquire  Avhcther  it  is  an  absolute  dispossession  of  the  free 
and  natural  agency  of  the  human  mind.  In  the  language  of  Erskine, 
"It  is  not  necessary  that  I'eason  should  be  hurled  from  her  seat;  it  is 
enough  that  distraction  sits  down  beside  her,  holds  her  trembling  in  her 
place,  and  frightens  her  from  her  propriety." 

And  it  must  be  borne  in  mind  that  the  moral,  as  well  as  the  intellect- 
ual faculties,  may  be  so  disordered  by  the  disease  as  to  deprive  the 
mind  of  its  controlling  and  directing  power. 

In  order,  then,  to  constitute  a  crime,  a  man  must  have  memory  and 
intelligence  to  know  that  the  act  he  is  about  to  commit  is  wrong ;  to  re- 
member and  luiderstand  that  if  ho  commits  the  act  he  will  be  subject  to 
l)unisliraent  ;  and  reason  and  Avill  to  enable  him  to  compare  and  choose 
between  the  sui)posed  advantage  or  gratification  to  be  obtained  by  the 
criminal  act,  and  the  immunity  from  punishment  which  he  will  secure  bj' 
abstaining  from  it.  If,  on  the  other  hand,  he  have  not  intelligence  and 
c  apacity  enough  to  have  a  criminal  intent  and  purpose,  and  if  his  moral 
or  intellectual  powers  are  so  deficient  that  he  has  not  sufficient  will,  con- 
science, or  controlling  mental  power,  or  if,  through  the  overwhelming 
violence  of  mental  disease,  his  intellectual  power  is  for  the  time  oblit- 
erated, he  is  not  a  i-esponsiblo  moral  agent,  and  is  not  punishable  for 
criminal  acts. 

Guided  by  these  rules,  the  jiu'v  were  instructed  by  the  court  to  inquire 
whether  the  accused  was  justly  re  '":)nsible  for  the  act  he  had  com- 
mitted, and  they  were  to  consider,  as  aids  to  a  just  inclusion,  the  ex- 
traordinary and  unaccountable  alteration  in  his  whole  mode  of  life  ;  tiie 
inadequacy  between  the  slightncss  of  the  cause  and  the  magnitude  of  the 
offence ;  the  recluse  and  ascetic  life  which  he  had  led ;  his  invincible 
repugnance  to  all  intercourse  with  his  fellow-creatures ;  his  behavior 
and  conduct  at  the  time  the  act  was  done,  and  subsequently  during  his 
confinement  in  prison,  and  the  stolid  indifference  which  he  alone  had 
manifested  during  the  whole  progress  of  the  trial,  upon  whose  result  his 
life  or  death  was  dependent.  And  they  must  continually  b.ar  in  mind 
that  the  punishments  of  the  law,  and  especially  its  severest  penalties, 
would  be  shorn  of  their  salutary  influence  upon  the  public  wlien  inflicted 
up'tn  one  already  suffering  under  one  of  the  most  severe  and  inflicting 
maladies  to  which  human  nature  was  subject. 

The  jury  returned  a  verdict  of     i>t  (juii'ti/.  on  the  ground  of  insanity. 


FLANAGAN    V.  PEOl'LK. 


>;  I 


Arnumeut  of  Counsel. 


[The  prisoner  remaint'd  a  few  yours  in  the  asylum,  and  died  there, 
his  disease  steadily  growing  worse  until  he  became  a  mere  drivelling 
idiot,] 


(I 
<< 

K 


TEST    OF   INSANITY  — ABILITY    TO    DISTINGUISH    AS   TO  RIGHT  OR 

WRONG  OF  ACT. 

Flanagan  v.  People. 

[52  N.  Y.  467;  11  Am.  Rep.  7;U.] 
In  the  Court  of  Appeals  of  New  York^  January,  1873. . 

Hox.  Sankokd  E.  Cnrncn,  Chief  Justice. 

William  T.  Allkx, 

RuFUS  W.  Pkckha.m, 

Makti.v  Guovek, 

Chaklks  J.  FoLciEU,      '•  J'^'^Oes- 
"    CiiAULES  A.  Rapai.lo, 
"    Charles  Andrews, 

The  test  of  responsibility  for  a  criminal  act  when  unsoundness  of  mind  ia  sot  up  for 
a  ilefence  is  the  capacity  of  the  defiinilant  to  distinguisli  botwoen  right  and  wroug  ttt 
the  time  of  and  with  respect  to  the  act  which  is  the  subject  of  inquiry. 

EuRouto  the  Supreme  Court  to  review  a  judgment  of  the  general  terra, 
in  tlie  first  department,  affiiining  a  judgment  of  the  Court  of  General 
Sessions  of  New  York,  entered  upon  a  conviction  of  the  plaintiff  in 
error,  of  the  crime  of  murder  in  the  second  deoree. 

The  plaintiff  was  indicted  for  murder  in  the  first  degree,  in  killing  his 
wife.     The  defence  was  insanity. 

WilliaM  F.  Khitziug.,  for  plaintiff  in  error.  Although  one  has  un- 
derstanding, yet  if  lie  has  no  will,  he  cannot  commit  a  crime.'  The 
"right  and  wrong"  test  as  to  the  contemplated  net  is  not  favored. ^ 
The  power  of  choosing  right  from  wrong  is  as  essential  to  1  gal  respon- 
sibility as  the  mere  capacity  of  distinguishing  right  from  wrong.'' 

B.  K.  Phelps,  district  attorney,  for  defendants  in  error.  One  who  is 
conscious  that  an  act  is  wrong  at  the  time  he  is  committing  it,  and  that 
it  is  in  violation  of  law,  cannot  properly  be  said  to  be  insane.* 


'  1  Hale's  P.  C.  14;  4  nia.  Com.  21. 

'  Ray  on  Insanity;  Whart.  it  Stille's  Med. 
•lur. ;  IJeck,  Dean,  Taylor,  Med.  Jur. ; 
Hruwn's  .Med.  Jur.  of  Insanity;  Rex  v.  Had- 
fleld,  27  How.  St.  Tr.  1282. 

Reg.  t'.  Bleasdale,  2  Car.    &  Kir.   765; 
Stute  1'.  Windsor,  :^  Ilarr.  512 ;  People  v.  Pine, 


2  Barb.  566;  Scott  i'.  Com.  4  Mete.  (Ky.)  227; 
Hop))8  » .  l'ei)j)le,  31  111.  385;  Fouls  v.  State,  4 
G.  (ireene  (Iowa), 500 ;  liilinan's  Case,  Whart. 
Crim.  Law,  30;  Com.  v.  Sherlock,  14  Leg.  Int. 
33;Sniith  v.  Com.  1  Duv.  224;   Com.  v.  Kreth, 

3  rhilii.  io.->. 

"  Willis  I'.  The  People,  32  N.  V.  71"). 


38 


THK    LEGAL   TEST   OF    INSANITY. 


Flanufiaii  v.  People 


Andrews,  J.  The  judge,  among  other  things,  charged  the  jury  that, 
"  to  estahUsh  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proven  that  at  the  time  of  committing  the  act  (the  subject  of  the  in- 
dictment), the  party  accused  was  laboring  under  such  a  defect  of  rea- 
son from  disease  of  the  mind  as  not  to  know  the  nature  and  quality  of 
the  act  he  was  doing;  and,  if  he  did  know  it,  that  he  did  not  know  he 
was  doing  wrong ;  "  and  to  this  part  of  the  charge,  the  prisoner,  by  his 
counsel  excepted. 

The  part  of  the  charge  .cepted  to  was  in  the  language  employed  by 
TiNDAL,  C.  J.,  in  Mi'Naghteu's  Case,^  in  the  response  of  the  English 
judges  to  the  questions  put  to  them  by  tlie  House  of  Lords  as  to  what 
instructions  should  be  given  to  the  jiny,  on  a  trial  of  a  prisoner  charged 
with  crime,  when  the  insane  delusion  of  tlie  prisoner,  at  the  time  of  the 
commission  of  the  alleged  act,  was  interposed  as  a  defence.  All  the 
judges  except  one,  concurred  in  the  opinion  of  Tindal,  C.  J.,  and  the 
ease  is  of  the  highest  authority ;  and  the  rule  declared  in  it  has  been 
ailhered  to  by  the  English  courts.  Mailk,  J.,  gave  a  separate  opinion, 
in  which  he  declared  that,  to  render  a  person  irresponsible  for  crime  on 
account  of  unsoundness  of  mind,  the  unsoundness  should,  according  to 
the  law  as  it  has  been  understood  and  held,  be  such  as  to  render  him  in- 
capable of  knowing  right  from  wrong. 

In  the  case  of  Freeman  v.  People,-  the  language  of  Tixdal,  C. 
J.,  in  the  Mcyii^jhte  a  C(r.se,  was  quoted  and  approved;  and  Beaudsley, 
J.,  said:  "Where  insanity  is  interposed  as  a  defence  to  an  indictment 
for  an  alleged  crime,  tlie  inquiry  is  always  brouirlit  down  to  tlie  single 
question  of  a  capacity  to  distinguish  between  right  and  wrong  at  the 
time  the  act  was  done.'"* 

The  rule  was  reatHrmed  in  the  case  of  Willis  v.  People,  ^  and  it 
must  be  regarded  as  the  settled  law  of  this  State,  that  the  test  of  re- 
sponsibility for  criminal  acts,  where  unsoundnrss  of  mind  is  interijosed 
as  a  defence,  is  the  capacity  of  the  defendant  to  distinguish  between 
right  and  wroiiL..  at  tlie  time  of,  and  with  respect  to,  the  act  wliich  is 
the  subject  of  the  inquiry. 

We  are  ask(*«  in  this  case  to  introduce  a  new  element  into  the  rule  of 
criminal  respousibility  in  case-;  of  alleged  in«.anity,  and  to  hold  tliat  the 
power  of  choosing  riglit  from  wrong  is  as  essential  to  legal  responsi- 
bility as  the  capacity  of  distinguisliinu  l)etween  them;  and  that  the  ab- 
sence of  the  former  is  consistent  with  the  presence  of  the  latter. 

The  arruraent  proceeds  upon  the  theory  that  there  is  a  form  of  in- 


tll 

tl 
iii 

it 


1  lOCl.  &Fin.210. 


-  4  Denio,  29. 


'  32  N.  Y.  717. 


"  MORAL  INSANITY        CRITICIt^Kl). 


39 


Hvils  oi  the  Doctrine 


single 
Jit  the 


and  it 
of  re- 
:'ri)o.sed 
'tween 
licli  is 


of  in- 


sanity in  which  tlie  faoihties  are  so  disordered  and  deranged  that  a  man, 
though  lie  perceive  the  moral  quality  of  his  acts,  is  unable  to  control 
them,  and  is  urged  by  some  mysterious  pressure  to  the  commission  of 
acts,  the  consequences  of  which  he  anticipates,  but  cannot  avc^id. 

Whatever  medical  or  scientific  authority  there  may  be  for  this  view, 
it  has  not  been  accepted  by  courts  of  law. 

The  vagueness  and  uncertainty  of  the  inquiry  wiii(;h  would  be  opened 
and  the  manifest  danger  of  introducing  the  limitation  claimed  into  the 
rule  of  responsil)ility,  in  cases  of  crime,  may  well  cause  courts  to  pause 
before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of  the  will 
and  conscience;  and  tlie  rule  suggested  would  be  the  cover  for  the  com- 
mission of  crime  and  its  jiistitication.  The  doctrine  that  a  criminal  act 
may  be  excused  upon  the  notion  of  an  irresistible  impulse  to  commit  it, 
where  the  offender  has  the  ability  to  discover  his  legal  and  moral  dut}' 
in  respect  to  it,  has  no  place  in  the  law.  Roi.kk,  B.,  in  licg.  v.  Al- 
lunt,  where,  on  the  trial  of  an  indictment  for  poisoning,  the  defendant 
was  alleged  to  have  acted  under  some  moral  intluence  which  he  could 
not  resist,  said:  "Every  crime  was  committed  under  an  iulluence  of 
such  a  descrii)tion  ;  and  the  object  of  the  law  was  to  jompel  these  people 
to  control  tliese  influences." 

The  judge  intended,  by  the  proposition  excei>ied  to,  as  is  apparent 
from  the  other  i)art  of  the  charge,  merely  to  instinct  the  jury  as  to  the 
character  and  extent  of  mental  unsoundness  which,  if  pioved,  would 
shield  from  criminal  responsibilit}' ;  and  it  must  have  been  so  under- 
stood by  the  jury  and  counsel;  and  to  the  rule  thus  propounded  by 
the  judge,  the  exception  was  pointed.  What  was  said  as  to  the  meas- 
ure of  iM'oof  of  insanity  was  incidental  and  collateral  to  the  main  propo- 
sition ;  and  if  an  inadvertent  error  in  phraseology  crept  in,  it  did  not 
mislead,  and  was  not  excepted  to. 

lu  People  v.  McCaim,^  it  was  held  that  it  was  error  to  charge  the  jury 
in  a  criminal  case  that  tlie  insanity  of  the  prisoner  must  be  proved  be- 
yond a  reasonable  doubt,  to  entitle  him  to  an  acquittal.  This  was  the 
txtent  of  the  decision.  The  question  was  not  in  tiic  case,  whether  the 
[iiisoner  would  be  entitled  to  the  benefit  of  a  doubt  upon  the  evidence 
introduced  by  him  to  establish  the  defence.  What  is  said  by  the  learned 
judges  upon  that  subject  is  entitled  to  such  weight  as  their  character 
and  learning,  and  their  arguments  entitle  it  to.-  It  is  not  necessary 
f  ir  us  t )  consider  tlie  (luestion  in  this  case  ;  but  we  prefer  to  leave  it  pre- 


16  N.  Y.  58. 


2  See  People  r.  Schryver,  4->  N.  Y.  1. 


40 


TIIK    LKOAL   TKST   OF    INSANITY. 


Walker  v.  IV()i)I(>. 


t'iscly  wluTC  the  cases  cited  leave  it,  an  open  question,  so  far  as  judi- 
cial authority  in  this  State  is  concerned. 

The  exception  considered  is  the  only  one  presented  or  ar<;ued  by  coun- 
sel, and  we  are  of  the  opinion  that  the  judgment  should  be  atfirmed. 

All  concur;  Rapa!  l,o,  J.,  in  result. 

Judgment  affirmed. 


TEST  OF  RESPONSIBILITY  — BUUOKN  OF  PROOF. 
Waj.kkr  V.  Pkoplk. 

[2(;  Ilun,  CT:   1   N.  Y.  Criin.  Hep.  7.] 

In  the  Supreme  Court  of  Nero  York  {First  Departmenf),  October,  1881. 

1.  Test  of  Responsibility. —  Wliere  tlie  dofenco  of  insanity  is  interposed  to  an  indict- 
niont,  tlio  true  test  of  criminal  rej-pon.siljility  is,  wiictlu'r  tlio  aceuseil  Imd  sufllcient 
reason  to  know  right  from  wrong.  If  lie  had  stilllcient  intelligence  to  know  it,  whether 
he  li:id  suilicient  power  to  control  or  govern  liis  actions  is  a  matter  of  no  moment 
wliatever. 

•2.  Burden  of  Proof. — The  burden  of  proving  sanity  does  not  fall  upon  the  i)rosecution 
The  presumption  is  iliat  every  one  is  sane,  and  the  prisoner  must  overcome  this  pre- 
sumption by  .'iiitisfactory  evidence.  If,  however,  there  is  reasonable  Ooul)t  as  to  ilie 
prisoner's  sanity,  arising  upon  the  evidence  in  the  case,  and  upon  nothing  else,  the  jury 
hliould  ^ive  the  accused  the  benefit  of  that  doubt  and  acquit  liim. 

3.  Same— Instructions.  —  Where  the  recorder's  charge,  accomi)anicd  tlie  foregoing 
propositions  wiili  the  instruction  that  tlie  insanity  must  be  clearly  proi-en;  hcld,tii&l 
tlie  charge  was  correct. 

Witrr  OF  Eiiuoii  to  the  Court  of  General  Sessions  for  the  city  and 
county  of  New  York  to  review  the  conviction  of  George  Walker,  the 
l)laintiff  in  error,  upon  an  indictment  charging  him  with  the  crime  of 
abduction 

Geoi'ge  Walker  was  tried  and  convicted  at  the  August  terra,  1881,  of 
the  General  Sessions,  for  the  crime  of  the  abduction  oi  a  little  girl 
named  Katie  llviniessy,  tuid  was  sentenced  to  the  State  prison  for  the 
term  of  ten  years.  The  defence  interposed  to  the  indictment  was 
insanity. 

It  was  proved  that  the  prisoner  had  enticed  a  little  girl,  aged  about 
eight  3'ears,  from  the  street  in  front  of  her  parents'  house,  in  the  city 
of  New  York,  and  had  taken  her  into  the  up|)er  part  of  the  city.  The 
attention  of  a  passer-by  having  been  attracted  to  Walker  and  the  girl, 
he  questioned  the  child,  who  said  the  man  was  not  her  father,  that  he 
was  taking  her  away,  and  that  she  wanted  to  go  home.  The  prisoner 
was  arrested,  and  the  child  returned  to  her  parents. 


WALKKU    V.  PKOI'LK 


41 


I'^v  idciicc  ami   Iiistnictii)ii>- 


1881,  of 
ttle  girl 
I for  Ihu 
;ut  was 


Kiitio  Iloniiess}',  the  aluluctod  cliild,  tostifiod,  tlmt  while  she  and  the 
lirisoner  were  together  on  the  street  railroad,  on  their  way  up  town,  he 
h:i<l  put  his  hands  under  her  clothes. 

Two  doctors,  Hardy  and  Jackson,  phj'sicians  to  the  city  prison, 
where  the  prisoner  was  confined  after  his  arrest,  testified  that  they  be- 
lieved, from  examinations  of,  and  conversations  with  the  prisoner,  that 
he  was  insane;  that  tiie  prisoner  did  not  recognize  tiie  gravity  of  his 
offence,  was  afraid  of  tlie  pi'ople  in  the  prison,  was  wandering  and  dis- 
connected in  his  conversation,  was  subject  to  delusions  as  to  an  imag- 
inary conspiracy  of  chemists  against  him,  on  account  of  valuable 
discoveries  which  he  iiad  made;  his  manner  was  nervous  and  uneasy, 
lie  was  suffering  from  chronic  mania. 

It  was  proved  that  the  prisoner  hail  been  sentenced  to  a  teim  of  ten 
years  in  tiie  State  prison  at  Trenton,  N.  J.  (where  he  feigned  insanit}'), 
for  rape,  and  had  also  been  confiiu'(l  in  the  (New  York)  City  Prison  on 
a  charge  of  assault  on  a  young  woman. 

Dr.  Spitzka  testified  that  he  had  extimined  the  prisoner  at  the  instance 
of  the  Society  for  the  T'revention  of  Cruelty  to  Children,  that  the  pris- 
oner was  perfectly  sane,  that  he  was  shamming  insanity,  and  shamming 
very  clumsily. 

At  the  close  of  the  trial  the  following  reciuests  to  charge  were  made 
on  behalf  of  the  i)risoner. 

Counsel. — I  ask  your  honor  to  charge  the  jury  as  the  law  in  this 
case :  — 

I.  The  true  test  of  criminal  responsibility,  where  the  defence  of  insan- 
ity is  interposed  to  an  indictment,  is,  whether  tlie  accused  had  suflicient 
reason  to  know  right  from  wrong ;  and  whether  or  not  he  had  sulficient 
power  of  control  to  govern  his  actions. 

TuE  Rkcoiidku. — I  will  charge  the  first  part  of  that  proposition, 
viz. :  "  The  true  test  of  criminal  responsibility,  where  the  defence  of  in- 
sanity is  interposed  to  an  indictment,  is,  whether  the  accused  had  sulli- 
cient  reason  to  know  right  from  wrong."  I  decline  to  charge  the  latter 
part,  viz. :  "And  whether  or  not  he  had  sufficient  power  of  control  to 
govern  his  actions." 

Counsel  for  2)1' isoner  excepted  to  the  refusal  of  the  recorder  to  charge 
as  requested.     Exception. 

II.  Where  a  person  acts  under  tlie  influence  of  mental  disease,  he  is 
not  criminally  accountable. 

The  RiicoKDEU.  — That  I  decline  to  charge,  except  as  I  intend  to 
charge. 

Counsel  for  prisoner  excepted  to  the  refusal  of  the  recorder  to  charge 
as  reciuested.     Exception. 


42 


THE    LKOAL   TEST   OF    INSANITY. 


Walktr  It.  lVo])le. 


III.  The  tlefeiulant  in  ii  criminal  case  is  not  reciuire-il  to  prove  iiis 
insanity  in  order  to  avail  himself  of  that  defence,  hut  uiorcly  to  create 
a  reasonable  doubt  upon  this  point,  whereupon  the  burden  of  proving 
his  sanity  falls  upon  the  people. 

The  Rkcoudkr.  —  I  decline  to  charge  that.     Refused. 

Couiuv'lfor  prisone7'  excepted  to  the  refusal  of  the  court  to  diarge  as 
reciuested.     Exception. 

Tiiic  RiccoituEK,  in  the  charge  to  the  jury  said:  That  to  establish  a 
defence  on  the  ground  of  insanity,  it  must  be  ''  clearly  prooen  "  that,  at 
the  time  of  committing  tiie  act,  the  subject  of  the  indictment,  the  party 
accused  was  laboring  under  such  a  defect  of  reason  from  disease  of  the 
mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing, 
and  if  he  did  know  it,  that  he  did  not  know  he  was  doing  wrong. 

Counsel  for  prisoner  excei)ted  specifically  to  t!ie  words  "  dearly 
proven'^  as  charged.     Exccjition. 

William,  F.  Kintzitig,  for  plaintiff  in  error. 

John  McKeoit,  district-attorney  for  the  people. 

BuADV,  J.  — The  plaintiff  in  error  was  indicted  and  tried  for  the  crime 
of  abduction,  and  was  convicted  and  sentenced  to  the  State  prison  for 
tlie  term  of  ten  years.  The  response  made  to  the  charge  was  insanity  ; 
upon  the  trial,  the  counsel  for  the  plaintiff  in  error  requestetl  the  court 
to  charge,  ^/f/'.s^  that  the  true  test  of  criminal  responsibility,  where  the 
defence  of  insanity  is  interposed  to  an  indictment,  is,  whether  the 
accused  liad  sullicient  reason  to  know  right  from  wrong,  and  whether  or 
not  he  had  sutfieient  power  of  control  to  govern  his  actions.  The 
learned  recorder,  in  answer  to  this  request,  said :  — 

"I  will  charge  the  first  part  of  that  proposition,  namely,  '  the  true 
test  of  criminal  responsibilit}',  where  the  defence  of  insanity  is  inter- 
posed to  an  indictment,  is,  whether  the  accused  had  sufficient  reason  to 
know  right  from  wrong.'  "  But  he  further  said:  "  I  decline  to  charge 
the  latter  part,  namely,  '  and  whether  or  not  he  had  sufficient  power  to 
jrovern  and  control  his  actions.'  " 

The  prisoner,  by  his  counsel,  excepted  to  the  refusal  to  charge  as 
requested. 

The  counsel  for  tlie  prisoner  also  requested  the  recorder  to  charge 
that  the  defendant,  in  a  criminal  case,  was  not  required  to  prove  his 
insanity  in  order  to  avail  himself  of  that  defence,  but  merely  to  create  a 
reasonable  doubt  upon  that  point,  "  whereupon  the  burden  of  proving 
sanity  falls  upon  the  People." 

The  learned  recorder  declined  to  charge  as  requested,  and  the  coun- 
sel for  the  plaintiff  in  error  duly  excepted. 


IX8AMTY    MUST     HE    "  CLKAULY    I'UOVKN. 


48 


Power  of  Control. 


)rove  lus 

to  create 

proving 


harge  as 

tablisb  a 
'  that,  at 
the  party 
ise  of  the 
as  doing, 

J?- 
"  clearly 


the  crime 
)rison  for 
insanity ; 
the  court 
•here  the 
ther  the 
hether  or 
ns.     Tlie 

the  true 

is  inter- 

[oason  to 

to  charge 

liowcr  to 

Iharge  as 

charge 

Irove  liis 

create  a 

proving 

lie  coun- 


Thc  recorder  in  his  charge  to  the  jury,  said  that  to  estaltlish  a  de- 
fence on  tlie  ground  of  insanity,  it  must  be  clearly  proven  that  at  the 
time  of  committing  the  act,  wliicii  is  the  subject  of  the  indictment,  tlie 
party  accused  was  laboring  under  such  a  defect  of  reason,  from  a 
disease  of  the  mind,  as  not  to  know  the  nature  and  (piality  of  the  act 
he  was  doing,  and,  if  he  did  know  it,  that  he  <l.tl  not  know  that  he  was 
doing  wrong. 

Counsel  for  the  plaintiff  in  error  excepted  to  the  words  "clearly 
proven,"  as  used  in  this  extract  from  the  charge,  and  the  exception  was 
duly  noted. 

It  will  be  perceived,  in  reference  to  the  first  recpiest,  that,  in  addition 
to  the  proposition  as  to  the  capacity  of  the  plaintiff  in  error  to  know  I'ight 
from  wrong,  it  was  designed  by  his  counsel  to  create  another  test  or 
condition,  namely,  as  to  whether  the  plaintiff  in  error  had  suffleient 
power  to  govern  and  control  his  actions,  which  is  to  sa}',  in  effect ,  if  lie 
had  sufficient  reason  to  know  right  from  wrong,  and  knowing  it,  had  not 
sufficient  power  to  control  and  govern  his  actions,  and  did  the  act 
cliarged,  with  a  knowledge,  therefore,  that  it  was  wrong,  the  act  was  to 
be  regarded  as  that  of  an  insane  person,  and  one  irresponsible  for  his 
(Iced. 

It  is  enough  to  say  that  there  is  no  precedent  for  such  a  combination 
of  elements,  as  is  presented  in  this  recpiest.  Tlie  true  test,  upon  the 
authorities,  is  thr^t  announced  b}^  the  learned  recorder,  namel}',  whether 
tlic  accused  had  sufficient  reason  to  know  right  from  wrong,  and  if  he 
had  sufficient  intelligence  to  know  it,  whether  he  had  sufficient  i)ower 
to  control  or  govern  his  actions,  was  a  matter  of  no  moment  whatever- 
Assuming  that  he  had  reason  enougii  to  know  that  he  was  doing  wrong 
when  he  committed  the  act  of  which  he  stood  accused,  it  was  his  duly 
to  control  himself,  a  duty  which  he  owed  to  God  and  man,  and  one,  for 
the  omission  of  which,  under  the  law  of  the  land,  he  was  to  be  |)unished- 
The  courts  have  gone  quite  far  enough  in  declaring  that  if  tlie  accused 
is  laboring  under  such  a  defect  of  reason  from  disease  of  the  mind,  as 
not  to  know  the  nature  and  quality  of  the  act  he  is  doing,  and  if  he  did 
know  it,  that  he  did  not  know  that  he  was  doing  wrong,  he  should  be 
rc^^arded  as  irresponsible  for  the  act  charged  against  him. 

There  are  some  obiter  dicta  which  would  seem  to  evidence  ten- 

tinn  to  shroud  this  doctrine  in  doubt,  or  to  hamper  it  with  conditions 
subversive  of  its  clearness  and  efficiency ;  but  they  htive  not  been  adopted 
in  :i!iy  adju<licated  case  as  ex[)ressive  of  the  law  of  this  State.  If,  when 
a  person  is  put  upon  trial,  it  is  urged  on  his  behalf  that  he  was  insane 
lit  the  time  of  the  commission  of  the  crime  of  which  he  is  accused,  he  is 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


& 


/- 


I/. 


1.0 


I.I 


12.2 


IL25  i  1.4 


2.0 

1.6 


Hiotpgraphic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14S80 

(716)  S73-4S03 


m 


V 


iV 


« 


>:^^ 


lA 


%0 


i 


O"^     I 


44 


THE   LKQAL   TKST    OF    INSANITY. 


Walkur  r.  P-dplc. 


not  entitled  to  the  benefit  of  tlic  rule  governinii;  that  rivcrment  to  any 
greater  extent  than  that  ex[)resse(l  b}'  the  recorder  in  this  case;  and  it 
is  to  be  given  to  the  jury,  as  a  rule,  without  conditions  and  without 
qualifications.  If  the  testimony  submitted  for  the  consideration  of  the 
jury  establisiied  sucii  mental  infirmity  as  the  rule  itself  suggests,  then 
tlie  prisoner  is  entitled  to  his  discharge  ui)f)n  the  ground  of  his  irrespon- 
sibility. But  if  the  testimony  does  not  fidly  respond  to  these  require- 
ments, then  he  must  suffer  as  a  person  presumed  to  be  sane,  and 
on  whose  l)elialf  sufficient  evidence  had  not  l)een  given  to  overcome  tiiis 
presumption.!  Tiiis  is  all  that  it  is  deemed  nei.'essary  to  say  with  regard 
to  the  first  request. 

'i'he  second  request  herein  stated  is  subtle  in  its  character;  it  is  that 
^  0  •>  feiidant  in  a  criminal  case  is  not  re(iuired  to  prove  his  insanity,  in 
ordoi-  •  .ivail  himself  of  that  defence,  but  merely  to  create  a  reasonable 
double  vi'ion  this  point,  whereupon  the  burden  of  proving  insanity  falls 
upor.  Jie  Per»ple.  It  would  be  sufficient,  in  answer  to  the  excei)tion 
which  was  taken  to  the  refusal  of  the  recorder  to  charge  this  request, 
that  the  i)urden  of  proving  sanity  does  not  fall  upon  the  People  in  any 
case.  The  prisoner  is  arraingetl,  and  the  jury  are  impannelled  with  two 
legal  presumptions  existing — 'one  that  he  is  innocent,  and  the  other 
ihat  he  is  s:uie.  If  tiie  prisoner  is  to  be  relieved  fr.'m  the  consequences 
of  his  offence,  by  reason  of  a  mental  infirmity  existing  at  the  time  of 
his  transgression,  amounting  to  insanity,  it  l>ecomes  his  duty,  or  the 
duty  of  some  person  On  his  behalf,  to  overcome  the  i)rcsumption  of 
sanity  by  satisfactory  evidence,  and  the  People  may  rest  upon  the  pre- 
sumption of  sanity  without  resorting  to  any  proof.  This  i)oint  has  been 
expressly  decided  in  Walter  v.  People,-  which  was  a  case  of  homicide. 
The  court  was  requested  to  charge,  as  a  proposition  of  law,  that  in  a 
case  where  the  defence  consists  of  the  insanity  of  the  prisoner,  it  be- 
comes incumbent  upon  the  prosecution  to  pi-ove  him  sane.  The  court 
said  that,  as  an  abstract  proposition,  the  request  was  manifestly  un- 
sound; that  sanity  was  i)resumed  to  l)c  the  normal  slate  of  the  human 
mind,  and  that  it  was  never  incumbent  upon  the  prosecution  to  give 
affirmative  evidence  that  such  a  state  exists  in  a  particidar  case.  And 
this  doctrine  was  reaffirmed  in  the  case  of  Fern's  v.  People,'^  and  again 
reasserted  in  the  case  of  Drothi'rton  v.  People,'*  in  which  Cihrcii,  J., 
delivering  the  opinion  of  the  court,  said :  "Sanity  being  the  normal  and 
usual  condition   of  mankind,  the  law  presiu.ies  tliat  every  individual  is 


'   Freeman  r.  People,  4  Denio,  0;   Willis  »  3-.' X.  Y.  147. 

V.  Peoplo,  32  H.  Y.  717;  Flanagan  v.  People,  •'  :i5  N.  Y   125. 

Hi  1(1.  mi.  '  75  N.  V.  162. 


BURDEN   OF   PUOO' 


4". 


Chari:,  <  f  Court. 


;nt  to  any 
id ;  and  il 

I  without 
on  of  the 
ests,  then 

irrespon- 
e  require- 
sanc,  and 
come  tl»is 
ith  regard 

it  is  that 
isanity,  in 
•casonable 
anit}'  falls 
exception 
s  request, 
)le  in  any 
I  with  two 
the  other 
sequences 
le  time  of 
ty,  or  the 
niption  of 

II  the  pi-e- 
has  been 
lomicide. 
tliat  in  a 
T,  it  be- 
he  court 
stly  un- 

e  human 
|i  to  give 
e.  And 
nd  again 
ucii,  J., 
Irmal  and 
vidual  ia 


in  tiiat  st:it«';  hi-ncc,  a  prosecutor  may  rest  upon  tliat  presumption 
witliout  oilier  i)roof.     The  fact  is  deemed  to  be  \\vi)ot  prima  f'liic." 

Inasmuch  as  the  request  contained  more,  therefore,  than  the  prisoner 
was  entitled  to,  the  recorder  was  not  obliged  to  charge  it,  under  well 
settled  rules.  In  addition,  however  to  this  response,  it  nuist  be  furtii(*r 
said,  that  the  reciuest,  aside  from  the  oljjectionable  portion  wliich  has 
been  referred  to,  from  its  phraseology  calU'd  upon  hitn  to  declare  that 
Ibe  defendant,  in  a  criminal  case  was  not  required  to  prove  his  insanity, 
in  order  to  avail  himself  of  that  defence,  but  merely  to  create  a  reason- 
al)le  doubt  upon  this  point,  namely,  ui)on  the  point  of  insanitj\  The 
learned  counsel  for  the  plaintiff  in  error,  no  doubt,  designed  to  state 
that  it  wassulflcient  for  his  client  to  create  a  reasonable  doubt  upon  his 
sanity,  but  the  request  does  not  contain  that  proposition.  If  there  were 
nothing  else  to  be  said  ui)on  this  i)articular  element  of  the  case,  this  view 
might  be  regarded  a3  hypercritical ;  but  the  learned  recorder  snbstan- 
lially  charged  upon  the  rule  which  the  prisoner's  counsel  doubtless  in- 
tended to  invoke  by  the  request  itself,  for  he  said,  after  referring  to  the 
evidence  of  insanity  :  — 

"  It  is  for  you  to  determiiu'.  upon  all  tliis  evidence,  wliether  or  not 
on  June  15,  1881,  when  it  is  alleged  that  this  mr  \  pi'ri)etrati'd  the  of- 
fence of  abducting  this  child,  he  was  sane  or  insane;  in  other  words, 
whether  his  mind  was  in  such  a  condition  that  he  was  perfectly  able  to 
comprehend  and  understand  the  difference  between  light  and  wrong, 
and  that  he  did  know  that  he  was  doing  a  wrong  act,  if  he  had  sufHcient 
niiiid  to  form  that  intent  which  the  law  requires  must  be  proved  to  exist; 
;iiid  it  is  for  3'ou  to  determine  those  questions;  they  are  purely  ques- 
liiins  of  fact.  If  you  come  to  the  conclusion  that  the  prisoner  v.as 
iii-a.ie  at  the  time  it  is  charged  he  perpetrated  this  crime,  you  will  find 
liitu  not  guilty  on  the  ground  of  insanity.  If  you  come  to  the  conclu- 
sion, beyond  all  reasonable  doubt,  that  he  conunitted  the  crime  of 
:il)  liictiou  as  I  have  dellnecl  it ;  if  the  testimony  satisfies  you  beyond  a 
reasonable  doubt  of  his  guilt,  and  that  he  was  not  insane,  it  will  be  your 
iluty  to  convict;  and  further,  if  there  is  any  reasonable  doubt  arising 
upon  the  evidence  in  the  case,  and  ui)on  nothing  else,  it  will  be  your 
duty  to  give  the  prisoner  the  benefit  of  that  doubt  and  accjuit  him." 

It  must  be  further  said  in  regard  to  this  request,  that  in  the  case  of 
Brnthcrton  v.  People,^  it  appeared  that  the  judge  in  charging  tin; 
jury  used  this  expression  :  "  The  allegation  of  insanity  is  an  affirmative 
i>  lie,  which  the  defendant  is  bound  to  prove,  and  you  nuist  l)e  satis- 
fad  from  the  testimony  intro  hi-e  1  liy  him  that  he  was  insane."     And 


40 


TIIK   LROAL   TEST   OF   INSANITY. 


Walker  r.  IVojilc 


he  further  charged  that  if  llicrc  was  a  well  fouiKUsd  doubt  whether  tlio 
man  was  insane  at  the  time  he  fired  the  pistol,  ti>e  jury  were  to  acquit 
him.  It  was  held,  that  in  these  two  paragraphs  of  tiie  charije,  taken 
toujethcr,  there  was  no  error,  and  the  court  in  rcviewint;  the  trial  said  that 
t*lie  prisoner  was  1)ound  to  prove  tliat  he  was  not  sane,  and  whether  in- 
sanity was  ealle<l  an  alHrmativc  issue,  or  it  is  stated  tiiat  the  burden  of 
proof  of  insanity  is  on  the  prisoner  in  order  to  overcome  the  |)resumption 
of  sanity,  is  not  very  material  if  the  jury  are  told,  as  they  were,  that 
a  reasonable  doubt  upon  tliat  question  entitled  tlie  i)risoncr  to  an 
acquittal. 

The  jury  in  this  ca-^e  were  told  tiiat  if  thev  came  to  the  conclusion 
that  the  jjrisoner  was  insane  at  the  time  it  was  charged  he  perpetrated 
the  crime,  tlu'V  were  to  find  him  not  guilty  on  the  ground  of  insanity, 
and  further,  that  if  tiiey  came  to  the  conclusion  beyond  all  reasonable 
doubt  that  he  conunitted  the  crime,  and  that  he  was  not  insane,  it  was 
their  duty  to  convict  him;  and  further,  that  if  there  was  any  reasonable 
doubt  arising  from  the  evidence  in  the  case,  he  was  entitled  to  the  bene- 
fit of  that  dcnibt,  and  it  was  their  duty  to  acquit  him.  They  were  sub- 
stantially chargod,  therefore,  that  if  there  was  a  doubt  about  the  guilt 
of  the  plaintiff  in  error,  arising  either  from  his  innocence  of  the  crime 
itself,  or  from  a  doubt  as  to  his  sanity,  that  he  was  entitled  to  a  verdict 
of  acquittiil. 

It  will  have  been  iK'rceived  that  in  the  axso  of  Brotficrlnn,  to  which 
reference  has  been  made,  the  charge  was  directly  to  the  effect  that  the 
insanity  urged  on  behalf  of  the  prisf)uer  was  an  afifirmative  issue,  which 
he  was  bound  to  prove,  antl  that  tiie  jur\'  must  be  satisfied  on  the  testi- 
mony introduccil  by  him  that  he  was  insane,  which  was  not  done  in  this 
case.  The  learned  recorder  charged  that  to  cstaljlish  the  defence  of  in- 
sanity it  must  be  dearl}'  proven  that  at  tiie  tinie  of  committing  the  act 
which  was  the  subject  of  tiie  indictment,  the  party  accused  was  under  a 
defect  of  reason  from  a  disease  of  the  mind  ;  so  that  the  case  of  Broth- 
crton  and  this  one  are,  in  the  respects  in  which  they  have  been  com- 
pared, in  harmony. 

From  what  has  been  said,  the  vii'w  entertained  of  the  exception  to 
the  charge  in  which  the  learned  recorder  used  the  words  ''dearly 
proven  "  may  be  foreshadowed.  The  exception  in  this  respect  is  re- 
garded as  valueless.  As  already  suggested,  taken  in  connection  with 
another  paragrai)h,  to  wiiich  reference  has  been  made  herein,  it  is  no 
broader  than  the  charge  sustained  in  the  case  of  Brotherton  v.  People.^ 
la  that  case  it  was  charged  tliat  the  prisoner's  insanity  was  an  afflrma- 

'  Supra. 


nuHDEN  OP  rijoor 


47 


Opinion  of  D.-iiiliLs, .). 


icthcr  tlio 
!  to  acquit 
I'jjo,  taken 
,1  said  that 
licther  in- 
btirdt'n  of 
osumption 
were,  that 
ler  to  an 

:'onchision 
iM'petrated 
f  insanity, 
•easonahle 
me,  it  was 
:easonaV)le 
I  the  bcne- 
were  sul)- 
t  the  guilt 
tlie  crime 
a  verdict 

to  which 
that  tlie 
.ue,  which 
ilie  testi- 
16  in  tins 
ice  of  in- 
1?  the  act 
under  a 
f  Broth- 
en  com- 

eption  to 
cli'arlv 
ict  is  ra- 
tion with 
it  is  no 
People. ' 
affirma- 


tive issue  wliich  lie  was  hound  to  prove,  an<l  in  this  case  it  was  declared 
to  l)e  a  defi'nce,  wliich  must  be  clearly  proven.  The  cases  are  analo- 
gous and  parallel.  Tlie  precise  question  presented  by  the  exception, 
although  it  has  not  been  definitely  decidi-d  in  this  State,  and  althougli  it 
may  seem  to  be  in  doubt,'  appears  to  h:ivel)een  answered  in  the  Case  of 
McNu(jhte.n,~  \\\  which  Lord  Chief  Justice  Tinuai.  s:iid,  that  the  jury 
should  be  told  that  "  to  establish  a  defence  on  tiie  grountl  of  insanity,  it 
must  be  clearly  proven  tliat  at  the  time  of  committing  the  act  the  party 
accused  was  laboring  luxler  such  a  defect  of  reason  from  a  disease  of 
tlie  mind  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing, 
or  if  he  did  know  it,  that  he  did  not  know  what  he  was  doing  was 
wrong."  This  case  is  regarded,  therefore,  as  an  express  authority  for 
tlic  proposition  that  the  defence  of  insanity  must  be  clearly  proven  in 
order  to  overcome  the  presumption  of  sanity,  which  the  prisoner  en- 
counters at  the  comnn'nceinent  of  his  trial. 

The  question  of  insanity,  in  its  legal  phases,  m:\\  be  a  very  interest- 
ing subject  to  discuss.  It  certainly  presents  a  very  broad  Held  when 
contemplated  with  the  numerous  adjudications,  both  in  this  country 
luidin  England,  affecting  it,  and  the  number  of  elementary  writers  who 
lirive  considered  it;  but  it  is  not  necessarily  the  duty  of  an  appellate 
court  to  write  "^  review  of  these  cases.  It  is  enough  to  express  the  con- 
elusion  arrived  at  in  regard  to  it  when  presented  for  examination  upon 
consideration  of  the  controlling  decisions  in  this  State  bearing  upon 
it  This  has  licen  done  in  this  opinion,  and  it  follows  that  the  judgment 
must  be  allirnn-d. 

I)\\iKi.s,  J.  — Tlie  law  of  tiiis  case  seems  to  have  been  carefully  ob- 
served at  the  triid.  Upon  both  the  important  points  presented,  the 
instructions  given  the  jur}'  were  in  strict  accord  with  the  authorities 
wliich  have  long  been  regarded  as  correct  expositions  of  the  law.  In 
M'XagJiten's  Case,  the  pro[)er  course  to  be  followed  in  the  disposition 
(if  the  defence  of  insanity  was  considered  and  determined  by  the  House 
of  Lords,  the  highest  English  judicial  authority.  And  it  was  then  held 
tliiit  "  every  man  is  presumed  to  be  sane,  and  to  possess  a  sullicient 
degree  of  reason  to  be  responsible  for  his  crimes,  until  the  contrary  bi' 
proved."  And  "  to  establish  a  defence  on  the  ground  of  insanity,  it 
must  be  clearly  proved  that  at  tlie  time  of  the  committing  of  the 
!i('t,  the  party  accused  was  laboring  luider  such  a  defect  of  reason, 
from  disease  of  the  mind,  as  not  to  know  the  nature  and  quality 
of  the   act   he   was   doing,  or   if  he  did   know    it,  that   he   did   not 


'  See   Peoi)le   r.  McCann«    16  N.   V.  5:^; 

PlftDfijian  r.  IVoiile.Si  M.  407. 


»  10  CI.  ft  Fin.  210. 


L- 


48 


THE    LKOAL   TKST   OF    INSANITY. 


Walker  v.  IVople. 


know  he  v!is  doing  wliat  was  wrong."  "  If  the  accused  was 
conscious  that  the  act  was  one  wliich  he  ought  not  to  do,  and 
if  that  was,  at  the  same  time,  contrary  to  the  hiw  of  tlie  hind,  he 
is  punisIial)U'."  '  The  same  suliject  received  the  considora(i(»n  of 
the  Court  of  Appeals  in  Flund'jnn  v.  People.-'  And  the  same  crite- 
rion was  sanction  for  the  disposition  of  the  dea-nce  of  insanity,  as 
that  which  was  adopted  by  the  preceiUng  case  in  England,  And  in  the 
latter  case  it  AVMS  further  held  that  the  accused  was  not  entitled  to  an 
ac(iuittal,  simply  because  tlie  crii..inal  act  might  have  been  committed  in 
subordination  to  some  irresistible  impulse  or  inclination.  Tiiis  point 
was  urged  in  ])ehalf  of  the  prisoner  in  that  case,  by  the  same  learned 
counsel  now  representing  the  piesent  plaintiff  in  error,  and  it  was  an- 
swered by  the  court,  in  very  plain  language,  as  f<jllows:  "  Indulgence 
in  evil  passions  weakens  the  restraining  power  of  the  will  and  conscience, 
and  the  rule  suggested  would  be  the  cover  for  the  commission  of  crime 
and  its  justification.  The  doctrine  tha"  a  criminal  act  may  be  excused 
upon  the  notion  of  an  irresistible  impuh  .  (oconnnit  it,  where  the  offender 
has  the  ability  to  disctn-er  his  legal  and  moral  duty  in  respect  to  it, 
has  no  place  in  the  law."  And  the  remark  of  an  al»le  English  justice, 
tliat  "  every  crime  vas  committed  under  an  influence  of  such  a  des<rip- 
tion,  and  the  object  of  the  law  wr.s  to  compel  people  to  control  these 
influences,"  was  repeated  with  a[)proval.''  In  lietj.  v.  ILiynes,-*  this 
subject  was  further  considered,  and  it  was  there  observed  that  "  if  an 
influence  be  so  powerful  as  to  be  termed  irresistible,  so  much  the  more 
reason  is  there  why  we  should  not  withdraw  any  of  the  safeguards 
tending  to  counteract  it.  There  are  three  powerful  restraints  existing, 
all  tendiuf  to  the  assistance  of  the  person  who  is  suffering  under  such 
an  influence:  the  restraint  of  religion,  the  restraint  of  conscience,  and 
the  restraint  of  the  law.  But  if  the  influence  itself  be  held  to  be  a 
leiral  excuse,  rendering  the  crime  dispunishable,  you  at  once  withdraw 
a  most  powerful  restraint,  that  forbidding  and  punishing  its  })erpetration. 
We  must,  therefore,  return  to  the  simple  question:  '  Did  the  prisoner  know 
tie  nature  of  the  act  he  was  doing,  and  did  he  know  he  was  doing  what 
was  wrong?  '  "  ^  These  principles  present  the  gist  and  substance  of  the 
law  upon  these  subjects.  They  have  been  discussed  in  very  many  other 
instances,  and  concurring  in  the  same  conclusions.  For  that  reason, 
particular  reference  to  them  is  at  the  present  time  not  necessary.  To  a 
great  extent,  they  are  considered  in  the  charge  of  Mr.  Justice  Bkadt, 


1  10  Cl.  &  Fin.  200,  210. 
■■^  52  N.  Y.  467. 
a  Id.  470. 


MF.&P.666. 
'  Jd.  667. 


OriNZON    OF    DAVIS,  1'.  .1 . 


4!> 


iscd   was 
do,   and 
land,  he 
ration   of 
MIC  critc- 
aiiity,  as 
lid  ill  the 
It'd  to  an 
niitted  in 
'ids  point 
le  learned 
t  was  an- 
idulgence 
(nsciencc, 
of  crime 
a  excused 
e  offender 
pect  to  it, 
h  justice, 
a  descrip- 
trol  tliese 
*/e.s','  this 
[It  "  if  an 
the  more 
ifeguards 
existing, 
iidcr  such 
nee,  and 
to  be  a 
■ithdraw 
letration. 
nerknow 
)ing  what 
tee  of  tlie 
jiny  other 
reason, 
To  a 

BUADT, 


Tlu!  Cum-  in  tlir  Court  <if  A|)|u'iiK. 


to  wliich  concurrence  and  approval  may  ver}'  i)roperly  l»e  given.  For 
tlie  reasons  assigned  by  him,  aiul  those  suggested  by  Presiding  Justice 
Davis,  and  maintained  in  such  plain  language  as  to  preclude  tlie  possi- 
bility of  misapprehension  on  the  occasions  just  referred  to,  this  convic- 
tion should  be  afnrme<l. 

Davis,  P.  J.  —  On  the  question,  what  constitutes  the  insanity  which, 
in  law,  exonerates  from  the  puiiisinnent  of  crime,  on  the  ground  of  i rre- 
Hponsibilit;/,  I  concur  fully  in  the  views  and  conclusions  of  my  brother 
Bkady.  On  the  question  of  the  bunlen  of  proof  after  evidence  has 
been  given  by  the  accused  tending  to  show  insanity,  the  learned  recorder 
had  given  to  tiio  jiuy,  in  his  charge,  the  true  rule  applicable  to  a  case 
of  the  kind  when  it  comes  upon  all  the  evidence  to  be  submitted  to  the 
jury,  and  having  done  this,  it  was  no  error  to  refuse  to  submit  upon  the 
part  of  tiie  prisoner  a  proposition  which,  if  correct  in  itself^  was  only 
calculated  to  confuse  tlie  jury  by  distracting  tiieir  attention  from  the 
real  question,  which,  upon  the  wiiole  evidence,  had  alre!i<ly  been  cor- 
rectly submitted  to  them.  The  recorder  committed  no  legal  error  in 
refusing  to  charge  as  recpiested,  in  the  form  presented  by  the  counsel 
for  the  prisoner.     I  concur,  therefore,  in  the  affirmance. 

Conciction  affirmed 


■I. 


8a.mk  Cakk. 
In  the  Neio  York  Court  of  Aj)peals,  Febrnanj,  1SS2. 

1.  Test  of  Criminal  Responsibility.  —The  true  tept  of  criminal  responsibility  where  the 
(lefciicoof  insHtiily  IS  lotcr|Misc(l  to  uii  imlictincnt  if),  wlicilier  the  u('<'iisc>(l  had  sufli- 
ciuiit  reason  to  know  the  nature  and  <iuality  of  his  act,  and  whether  he  hn'!  cufllcieut 
ruusou  to  know  right  from  wrong. 

Power  to  Control  Action.  —  In  his  charge  the  recorder  rcfu.sed  to  ad<l  to  this  jiropoei- 
ti(in  the  further  one,  "  and  whetlierorno  he  (.the  accused)  liad  sullifienl  power  of  con- 
trol to  govern  his  actions. "  //r/(/,  that  the  refusal  was  proper,  as  the  recorder  had 
t'liiirgcd  that  the  accused  must  have  sufOcicnt  control  of  his  mental  faculties  to  form  u 
cniiiinul  intent  before  he  can  be  held  responsible  for  u  criminal  act.  which  was  us  far 
as  the  court  should  go  on  the  subject  of  control. 

Burden  of  Proof.—  If  no  evidence  is  given  on  the  subject  of  the  mental  condition  of 
the  accused,  the  presumption  is  that  he  is  sane.  Where  evidence  on  the  subject  is 
offered  by  the  defence  the  prosecutor  may  produce  answering  testimony,  but  lie  must 
!^atis(y  the  jury  on  the  whole  evidence  that  the  prisoner  was  responsible;  for  the  affir- 
m.iiiTo  of  the  issue  tendered  by  the  iiulictmeni  remains  with  the  prosecution  to  the 
ind  of  the  trial. 

The  Defence  of  Insanity  should  not  be  Bostained  on  vague  and  shadowy  testimony,  or 
iiiL're  conjecture.  There  should  lie  dear  aixl  substantial  evidence  of  insanity,  but  if 
tlii'i'u  is,  upon  the  whole  evidence  in  the  cus",  any  reasonable  doubt,  the  accused  ia 
eniitlcu  to  the  benclit  of  that  doubt,  and  to  an  accjuittal. 


^ 


k 


' 


AO 


THE    LKCIAI,    Ti:ST    OF    INSANITY. 


Walker  r.  I'coplt'. 


Ki{i{«>K  to  tlio  Siiprcine  Court.  GiMU'nil  Tfim  in  tlio  First  Depiirtincnt, 
Ui  review  the  judixnu'ut  of  ullinnaiico  in  tliis  cfise,  just  roportcd. 

Rai'ai.lo,  J. — Tlio  prisoner  was  inilictod  anil  tried  in  the  Court  of 
ricnoral  Sessions  of  the  city  of  Now  York  for  ahilueting  one  Katie 
Ilciuiossy,  .1  cliild  bctweon  seven  .'ind  ciglit  years  of  age.  Tlie  evidence 
tended  to  sliow  tliat  tlie  i)nipf)se  of  tlie  nhduetor  was  to  take  indecent 
liberties  with  her.  Tlie  defence  was  insr.nity,  and  evidence  was  adduced 
on  t'le  p.'U-t  of  the  prisoner  in  8ni)port  of  tlmt  defence. 

The  only  errors  alleged  in  the  case  are  the  refusal  of  tl»e  recorder  to 
charge  certain  propositions  snhmitted  l)y  the  counsel  for  the  prisoner, 
and  tlie  charge  of  the  recorder  on  the  subject  of  the  proof  of  insanity 
required  of  the  i)risorier.  The  exceptions  to  these  rulings  will  be  ex- 
amined seriatim.  The  first  request  was  to  charge  "that  the  test  of 
criminal  responsibilit)',  where  the  defence  of  insanity  is  interposed  to  an 
indictment,  is,  whetiier  the  accused  had  snlficient  reason  to  know  right 
from  wrong,  and  whether  or  not  he  had  sMfllcient  power  of  control  to 
govern  his  actions." 

The  recorder  charged  the  first  part  of  this  proposition,  but  declined 
to  charge  the  latter  part,  "•  wlietlier  or  not  he  had  sufficient  power  of 
control  to  govern  his  actions." 

The  doctrine  of  irresponsibility  for  a  crime  committed  by  a  ])orson 
who  had  snlficient  mental  capacity  to  comprehend  the  nature  and  quality 
of  his  act,  and  to  know  that  it  wa,^  wrong,  on  the  ground  that  he  had 
not  the  power  to  control  his  actions,  has  not  met  with  favor  in  the  adju- 
dications in  this  State.'  But,  witiiout  entering  upon  a  discussion  of  the 
question  on  its  general  merits,  we  are  of  opinion,  that  in  the  present 
case,  it  would  have  been  cLarly  improper  to  submit  to  the  jury  any 
such  vague  test  us  that  requested,  when  considered  with  reference  to 
the  character  of  the  crime  for  which  the  prisoner  was  on  trial,  and  the 
testimony  which  was  before  the  jury  as  to  his  previous  similar  offences. 

The  jury,  upon  the  evidence,  might  have  Tound  thixt  the  prisoner  had 
an  uncontrollable  propensity  to  abduct  3'oung  girls,  or  that  his  appetites 
were  so  depraved  and  overpowering  that  he  was  unable  to  resist  them, 
and  if  they  so  found,  the  charge,  as  requested,  would  have  led  them  to 
suppose  that  it  was  their  duty  to  acquit,  even  though  they  were  satisfied 
that  he  was  possessed  of  sufficient  reason  to  know  th.at  the  act  was 
wrong  and  criminal. 

The  court  did  charge  that  a  man  must  have  sufficient  control  of  his 
mental  faculties  to  form  a  criminal  intent,  V)efore  he  can  be  held  respon- 


'  Flanagan  v.  I'ooplc,  52  N.  V.  467. 


^vA^Kl•:ll  v.  I'loori.K. 


f)l 


Upiiiloii  of  l!:iiKillt),  J.,  ill  Court  (»f  A|iiK'al>. 


pfirtincnt, 
I'd. 

Court  of 
one  Katie 
e  evidence 
u  indecent 
is  adduced 

ocorder  to 
prisoner, 
f  insanity 
,vill  be  ex- 
ile tost  of 
osed  to  an 
tnow  right 
control  to 

t  declined 
power  of 

y  ft  person 

lid  quality 

at  he  had 

the  adju- 

ion  of  tlie 

le  present 

jury  any 

ere nee  to 

,  and  the 

offences. 

soner  had 

appetites 

sist  them , 

d  them  to 

e  satisfied 

e  act  was 

rol  of  his 
d  respon- 


sible for  a  criminal  act.     This,  we  think,  was  as  far  as  the  court  could 
go  on  the  subject  of  control,  under  tlie  circumstances  of  this  ca.so. 

The  second  proposition  requested  to  be  cliargod  was  :  "  When*  a  per- 
son acts  under  the  influence  of  mental  disease  he  is  not  criminally  ac- 
countable." 

This  tlie  recorder  declined  to  charge,  except  as  he  intended  to  charge, 
and  he  did  charge  in  tlic  words  of  the  statute,  that  "  no  act  done  by  a 
person  in  a  state  of  insanity  can  be  piniisiied  as  an  offence."  Tliis  was 
a  much  more  accurate  statement  of  the  law  tnan  that  reciuested,  and  it 
was  not  error  for  the  recorder  to  give  it  the  preference,  and  decline  to 
adoi)t  the  phraseology  of  counsel. 

The  third  request  to  charge  was  that  "the  defendant  in  a  criminal 
case  is  not  required  to  prove  his  insanity  in  order  to  avail  himself  of 
that  defence,  but  merely  to  create  a  reasonable  doubt  upon  this  point, 
whereupon  the  burden  of  proving  his  sanity  falls  upon  the  People." 
This  request  was  refused,  and  an  exception  taken. 

The  recorder,  in  his  charge,  instructed  the  jni y  on  the  subject  of  the 
bunlen  of  proof  as  to  the  sanity  of  the  prisoner,  in  entire  accordance 
with  the  decisions  of  this  court.  After  having  instructed  them,  in  a 
manner  not  excepted  to,  as  to  what  constituted  sanity  and  insanity,  he 
said  to  them:  "  It  is  for  you  to  determine  those  questions;  they  are 
I)urel y  questions  of  fact.  If  you  come  to  the  conclusion  that  the  prisoner 
was  insane  at  the  time  it  is  charged  that  he  perpetrated  this  crime,  j-ou 
will  find  him  not  guilty  on  the  ground  of  insanity.  If  you  come  to  the 
conclusion  beyond  all  reasonable  doubt,  that  he  committed  the  crime  of 
abduction,  as  I  have  defined  it;  if  tlie  testimony  satisfies  you,  beyond  a 
reasonable  doubt,  of  his  guilt,  and  that  he  was  not  insane,  it  will  he 
your  duty  to  convict.  If  there  is  any  reasonable  doubt  aiising  on  the 
evidence  in  the  case,  and  upon  nothing  else,  it  will  be  your  duty  to  give 
the  prisoner  the  benefit  of  that  doubt  and  acquit  him." 

The  burden  of  establishing,  beyond  a  reasonable  doubt,  as  one  of  the 
elements  of  guilt,  that  the  prisoner  was  not  insane,  was  by  this  charge 
cast  upon  the  prosecution. 

Indeed,  on  examining  the  whole  case  it  appears  that  the  sanity  of  the 
prisoner  was  the  only  controverted  point,  the  sole  defence  being  his 
insanity,  and  it  was  the  only  serious  question  presented  for  the  consid- 
eration of  the  jury. 

The  most  recent  expression  of  this  court,  in  respect  to  the  burden  of 
proof  in  cases  where  the  defence  of  insanity  ia  interposed,  is  contained 
in  tlio  opinion  of  Danforth,  J.,  in  the  recent  case  of  O'Connell  v. 


52 


TUB   LKOAL   TK8T   OF    INSANITY. 


WttlkiT  V.  People. 


People.^  It  was  there  said,  in  substance,  that  the  guilt  of  the  pria- 
(iiuT  depi-ncU'd  upon  two  questions,  viz. :  wlietlicr  he  committed 
the  act  charged,  and  whether  he  was  in  such  condition  of  mind  as 
to  Ite  responsible  ;  tiiat  the  bunien  of  proof  as  to  both  wag  upon  the 
l)rosecuti(>n ;  tliat  the  legal  presuuiption  tliat  every  man  is  sane, 
was  sufficient  to  establish  his  sanity  until  repelled  by  proof;  that 
if  the  prisoner  gave  no  evidence,  the  fact  stood.  If  he  gave  evidence 
tending  to  overtlirow  it,  the  prosecutor  might  produce  answering  testi- 
mony;  but  he  must  satisfy  the  jin-y,  upon  the  wliole  evidence,  that  the 
prisoner  was  responsible;  for  the  alllrinative  of  tiio  issue  tendered  by 
the  indictment  remained  witli  tlic  prosecution  to  the  end  of  the  trial. ^ 

In  the  case  of  O'Connell  v.  People,  above  cited,  a  specific  request  was 
made  and  the  court  refused  to  charge  that  "  if  from  the  evidence  in  the 
case  a  reasonable  doubt  arose  in  tlie  minds  of  the  juiy  as  to  the  sanity 
or  insanity  of  the  defendant,  that  he  was  entitled  to  the  benefit  of  that 
doubt."  This  proposition,  was  in  the  abstract,  entirely  sound,  and  in 
accordance  with  the  views  expressed  by  tliis  court,  but  the  refusal  to 
charge  it  was  sustained  here,  on  the  ground  that  the  same  point  was 
covered  by  the  general  charge,  in  whicli,  after  submitting  to  the  jury 
tlic  question  of  the  sanity  or  insanity  of  the  piisoner,  with  the  instruc- 
tion that  if  insane  he  was  not  responsible,  the  judge  charged  tliat  if  they 
had  a  reasonable  doubt,  from  the  evidence,  that  the  prisoner  was  guilty 
of  the  crime,  they  should  give  him  the  benefit  of  tliatdoul)t. 

This  court  held,  in  substance,  that  where  the  judge  properly  submits 
to  the  jury  a  'Proposition  covering  the  whole  issue,  and  instructs  them 
that  they  must  find  it  beyond  a  reasonable  doubt,  he  cannot  be  required 
to  subdivide  it  and  charge  separately  as  to  eacli  of  the  elements  necessary 
to  constitute  tlie  crime ;  that  it  must  be  established  beyond  a  reasonable 
doubt.  In  this  holding  we  confirmed  the  conclusion  reached  in  the 
present  case  by  the  presiding  judge  at  general  term,  that  when  the  judge 
gives  to  the  jury  in  his  charge  tlie  true  rule  applicable  to  the  case,  when  it 
comes  to  be  considered  on  all  the  evidence,  it  is  not  error  to  refuse  to 
sulimit  aseparate  proposition,  which,  even  though  correct  in  itself,  is  only 
calculated  to  confuse  the  jury  by  distracting  their  attention  from  the  test 
question,  which  is  to  be  determined  on  the  whole  evidence.  These  re- 
marks apply  specially  to  llie  case  at  bar,  for  the  request  to  charge  is  by 
no  means  as  accurate  as  that  in  the  case  of  O'Connell.  It  involved  two 
propositions ;  first,  that  tlic  defendant  is  not  bound  to  prove  his  insanity 
to  avail  himself  of  that  defence.     This  is  inaccurate,  for  he  must,  be- 


>  87N.  Y.  377. 


s  See  also  Urothcrton  v.  People,  7.')  X.  Y.  159. 


IJUKDKN    OF   IMJUOK 


fid 


Discussion  of  McNngliten's  Case. 


!  tho  pris- 
cominitted 
f  mind  as 
9  Upon  the 
I  is  snnc, 
oof ;  that 
e  evidence 
jring  testi- 
2,  that  the 
ndcred  by 
le  trial. 2 
cqiK'st  was 
Mice  in  the 

the  sanity 
jfit  of  that 
nd,  and  in 

refusal  to 
!  point  was 
o  the  jury 
[he  instruc- 
'iiit  if  the}' 
was  guilty 

y  submits 
nets  them 

required 
necessary 
easonable 
led  in  the 
the  judge 
e,  when  it 

refuse  to 
If,  is  only 
m  the  test 
These  re- 
arge  is  by 
olved  two 
3  insanity 
must,  be- 

;r>  N.  Y.  159. 


yond  cavil,  give  proof  of  it,  or  the  presumption  of  sanity  prevails,  and  the 
rciiuestwas  notconllniMl  to  conclusive  proof  or  pnxtf  beyond  a  rca.sonalilc 
doubt.  Secondly,  that  he  is  only  required  to  create  a  reasonable  doiili- 
a.s  to  his  sanity.  This  is  extremely  vague,  and  well  calculated  to  mist 
lead,  especially  as  connected  with  the  first  branch  of  the  re([uest.  It  is 
not  even  confined  to  a  doubt  arising  up(;n  the  evidence.  But  even  iiad 
the  request  l)ecn  framed  accurately,  our  recent  decision,  above  referred 
to  holds,  that  it  was  not  error  to  refuse  it,  where  the  point  was  fully  cov- 
ered by  the  charge  as  given. 

Tho  remaining  exception  relates  to  tlie  charge  that  "to  establish  a 
defence  of  insanity  it  must  l)e  clearly  proved,"  etc.,  the  exception  being 
to  ti.e  expression  "  clearly  proved." 

Tiiis  was  not  the  language  of  the  recorder,  but  was  read  from  an 
opinion  which  he  adopted,  and  is  a  quotation  from  the  opinion  of  Ch.  J. 
TivT).\r.  given  in  the  celebrate(l  McXnghtcn  Case. '  If,  l)y  this  expression, 
the  jury  were  given  to  imderstand  tiiat  the  insanity  must  bo  proved 
beyond  a  reasonable  doubt,  it  of  course  was  at  variance  with  tlie  law  of 
this  State. 2  But  if  it  meant  that  there  should  be  clear  and  substantial 
evidence  of  insanity  to  justify  an  acquittal  on  that  ground,  it  was 
unobJectional)le.^ 

The  adoption  of  the  language  used  in  the  Mi'Xrtghtrn  Cnse^  that  the 
(left  lice  of  insanity  should  be  clearly  ])rove(l,  having  lieen  accompanied 
ill  the  i)resent  case  with  the  instruction  tiiat  if  the  testimony  satisfied 
the  jury  beyond  a  reasonable  doubt  of  tlie  guilt  of  the  prisoner,  and 
that  he  was  not  insane,  it  would  be  their  duty  to  convict ;  but  that  if 
there  was  an}'  reason.able  doubt  arising  upon  the  evidence  in  the  case,  it 
would  be  their  duty  to  give  the  prisoner  tlie  benefit  of  that  <loultt  and 
acquit  him,  tiie  jury  could  not  have  been  misled  as  to  the  buiden  of 
proof,  or  the  degree  of  proof  required  of  tlie  prisoner  to  overcome  the 
presumption  of  sanity,  and  the  charge  was  quite  as  favorable  to  him  as 
he  was  entitled  to. 

Whatever  may  have  been  the  idea  which  the  language  of  Ch.  J. 
TiNDAL  was  intended  to  convey  in  the  Mi^Naghton  Case,  we  think  that 
it  was  so  qualified  in  the  present  case,  by  the  connection  in  which  it  was 
used,  and  the  explanation  which  accompanied  it,  that,  taking  the  whole 
charge  together,  it  amounted  to  nothing  more  than  that  there  should  be 
subst.antial  and  clear  evidence  of  insanity  to  justify  an  acquittal  on  that 
ground,  and  that  the  defence  should  not  be  sustained  on  vague  and 
shadowy  testimony,  or  mere  speculation  and  conjectuie.  In  Brotherton 
v.  People.'*  the  judge  charged  the  jury  as  follows:   "  The  allegation  of 


'  10Cl.&Fin.2OO. 

''  People  I..  McCann,  16  N.  T.  58. 


»  People  r.  Schryver,  4J  N.  Y.  1. 
*  75  N.  Y.  1G2. 


54 


Tin:  i,r,(}AL  tk8T  oi'  inhanity. 


Uiilti«l  StiiliH  i;.  Mi<;iuo. 


insanity  is  an  (illlnnafive  issue  wliicli  the  defi'iKlaiit  is  bound  to  prove, 
aiul  you  must  In*  satisHcil  I'loni  tlu'  tcstiiuony  introduced  by  him  that  lie 
was  insane;"  but  he  uIm)  ciiai<ii'd:  '*  If  there  is  a  reasonable  douht,  a 
well  founded  doulit,  wliether  the  man  was  insane  at  the  time  he  lirod  the 
|ii-.t()l,  you  will  a('(|uit  hin»."  Tiiis  court  held,  that  takinj;  the  two 
paraj^raitlis  toiietiier,  there  was  no  error. 

The  opinion  in  tliat  ease  was  written  l)y  otir  late  Itrother,  Ch.  J. 
Cm  lit  II,  than  whom  no  Judi^e  approached  the  toiisideration  of  criminal 
cases  in  a  more  humane  spirit,  or  was  more  careful  that  all  the  legal 
rij^hts  of  nctiised  persons  should  be  |)roperly  {guarded  ;  but  the  natural 
fiirce  and  directness  of  his  mind  led  him  to  n'i;ai'd  the  substaiici;  of  wliat 
was  said  to  the  jury,  rather  tliaii  nicetlistinctions  in  forms  of  exi»ression, 
and  drew  from  him  the  rein:uk  tliat  "  the  prisoner  was  bound  to  prove 
tiiat  he  was  not  saiu»,  and  wliether  insanity  is  called  an  allirmative  issue, 
or  it  is  stated  that  the  Ixirden  of  pr()of  of  insanity  is  u\nm  the  prisoner, 
is  not  very  material,  if  the  jury  are  tuld,  as  they  were  in  this  case,  thai 
a  nasonalile  douht  upon  tiiat  iniestion  enlilled  the  prisoner  to  an 
aeiiuittal." 

W(!  think  there  was  no  error  in  die  refusals  to  charge  as  requested,  or 
in  the  charge  as  given,  wlien  taken  as  a  whole,  and  cousecjuently  the 
judgment  slumld  be  allirmed. 

All  the  judges  concurred,  except  Tuvcv,  ,1.,  absent. 


TEST    (»F   INSANITY  — KXPKUT.S  —  1)KLIR[UM    TREMENS— INTOXICA- 
TION  NO  DEFENCE  — BURDEN  OF  PROOF. 


United  States  v.  McGlue. 

[1  Curt.  1.] 

[n  the   United  States  Circuit  Court,  District  of  Massachusetts,  October 

Term,  1851. 


Hon.  Bi.:n.tamin  R.  Curtis,  1  _^,^^ 
"  Pklko  Spuague,     i 


1.  The  Accused  Must  be  Presumed  to  be  sane  till  \w  insanity  is  proved. 

2.  Testof  Insanity.  —  It  Is  not  every  kind  or  dogroe  of  ins.inity  which  exempts  from  pun  - 

i.shment.    It  the  accused  understood  the  imturu  of  his  net;  if  he  knew  it  was  wrong 
and  deserved  i)unishinent,  he  is  rc8pon^ible. 

3.  Experts  are  not  Allowed  to  Give  their  opinions  on  the  rnse,  where  its  facts  are 

controverted;  but  counsel  may  put  to  them  a  ^utc  of  facts,  and  ask  their  opinions 
thereon. 


INITKIJ    MATKS    V,    M    UIX'K. 


5a 


Sylliihiis  and  Fiii'ts. 


:o  prove, 
n  tliiit  lie 
(loiiht,  a 

II rod  till! 

the  two 

•,   Ch.  J. 

(  riiniiiul 

the  legal 

V  iialunil 

I!   (»f  WllJlt 

pressiuii, 
to  prove 
ive  issue, 
prisoiuT, 
•ase,  that 
\ir  to  au 

lested,  or 
ently  the 


^OXICA- 


October 


Irom  pun- 
ras  wrong 

[facts  are 
opinions 


4.  Delirium  Tremens.  —  If  ii  piT-cni  HiilfuriiiK  iiiwIiT  ililiriiini  Irrtmns,  is  ho  far  insane  u 
not  to  kimw  the  luitilir  nf  his  iirt,  vU',.,  lie  Is  liot  punisliulilc. 

!>  Intoxication  no  Defence,  When. —  If  ii  pcrsmi,  while  huii<<  ami  rrsiiDnsiiiir,  miikps 
hiniKult  inliixii'iitctl,  and  wlnlo  iiitnxiciitiMl,  ('uiniiiitH  iniinltT  hy  roii-on  of  insanity. 
wliH'h  WHS  mil!  iif  ilii>  ('iiiisu<|Uuii('L-s  of  iiiliixiCiUiiiii,  anil  niu' df  llii'  attcinlaiits  mi  thai 
htatL',  hu  Is  ruMpuuMhlo. 

0.  Burden  of  Proof  —  'I'hi-  law  ilm^*  imt  iircsiiinr  Insanity  arose  from  any  iiarticiiliir  c.aiisi' ; 
niid  if  the  ^nvrrniniMil  a>Hi<rts  that  thu  |irismit'i'  was  K>iilly>  lluiii^h  in-.ane,  liri'ausu  Iiih 
in..-aiiitj  wan  ilriiiiktMi  inailuuss,  tlil.s  allcgalimi  niiisl  be  priivud. 

This  WHS  an  iiulictiueiit  for  tin-  iiuii'iUt  of  Cliarles  A.  .Jolinson,  first 
otllcer  t)f  llu!  Italic  Lewis,  of  Saleiii,  liy  tlie  .sefDiul  olllt-er  of  tlie  hark. 


Oiu!  count  alU'gtitl  tin;  offi'iice  to  have  bei 


oiimiiUed  on  the  hitrlisea.s. 


and  anotiu;r  in  u  hay  wilhin  the  doiuinioii.s  vi  the  Iniaiiiu  of  .Muscat,  ii 
foreign  prince  or  sovereign.  The  facts,  so  far  as  tliey  are  necessary  to 
raise  the  questions  of  law,  appear  in  tl*    eliar;,';  to  the  Jury. 

Liiiit,  tlistriet  attorney,  for  the  I'nited  Strte.'^ ,  ii'.  ('/lontc  iuu\  Xorth- 
I '"'  for  the  prisoner. 

CuiiTia,  ,1. — The  prisoner  is  indicted  for  the  murder  of  Charles  A. 
Johnson.  It  is  ineiiinlteiit  on  the  goveinnient  to  pnjve,  beyond  reason 
a' lie  doubt,  the  tiiith  ot  every  fact  in  the  indictnicnl,  necessary,  in 
|)oiiit  of  law,  to  const itule  the  offence.  These  facts  need  not  lie  proved 
licyond  all  possible  iloulit;  but  a  moral  conviction  must  be  produced  in 
your  minds,  so  as  to  enable  you  to  say  that,  on  your  consciences,  you 
ill)  verily  believe  their  truth.  These  facts  are,  in  part,  controverted,  and 
ill  p;ii"t,  as  I  understand  the  course  of  the  trial,  not  controverted ;  and 
ii  will  be  useful  to  separate  the  one  from  the  other.  That  there  was  an 
unlawful  killing  of  JMr.  Johnson,  the  person  mentioned  in  the  iiidict- 
iiient,  by  means  substantially  the  same  as  are  therein  described;  that 
the  mortal  wound  immediately  i)rothicing  death,  was  inllicted  by  the 
prisoner  at  the  bar;  that  this  wound  was  given,  and  the  death  took 
place  on  board  of  the  bark  Lewis,  a  registered  vessel  of  the  United 
States,  belonging  to  citizens  of  the  United  States ;  that  Johnson  was  the 
fii.st,  and  the  prisoner  the  second  olHcer  of  that  vessel,  at  the  time  of 
the  occurrence  ;  that  the  vessel  at  that  time  was  either  on  the  high  seas, 
as  it  is  charged  in  one  count,  or  upon  w.aters  within  the  dominion  of  the 
sultan  of  3Iuscat,  a  foreign  sovereign,  as  is  charged  in  another  count ;  and 
that  the  prisoner  was  first  brought  into  this  district  after  the  commis- 
sion of  the  alleged  offence,  — do  not  appear  to  be  denied,  and  the  evi- 
tk'hce  is  certainly  sufficient  to  warrant  you  in  finding  all  these  facts 
They  are  testified  to  by  all  the  witnesses.  It  is  not  upon  a  denial 
of  either  of  these  facts  that  the  defence  is  rested;  but  upon  the 
allegation  by  the  defendant,  that,  at  the  time  the  act  was  done,  he  was 


56 


THE    LEGAL   TEST   OF    IXSAMTY. 


United  States  v.  MeGlue. 


i 


so  far  insane  as  to  l)e  criminally  irresponsible  for  his  act.  And  this 
brings  you  to  consider  the  remaining  allegation  in  the  indictment  which 
involves  this  defence.  It  is  essent.  1  to  tlie  crime  of  murder  that  the 
killing  should  be,  from  what  the  law  denominates  malice  aforethought ; 
and  the  government  must  prove  this  allegation.  But  it  is  not  necessary 
to  offer  evidence  of  previous  threats,  or  preparation  to  kill,  or  that  there 
was  a  previously  premeditated  design  to  kill. 

These  thin<Ts,  if  proved,  would  be  evidence  of  malice,  and  proof  of 
this  kind  is  one  of  the  means  of  sustaining  the  allegation  of  malice. 
But,  besides  this  direct  evidence,  of  what  is  called  in  the  law  express 
malice,  malice  may  be  also  inferred,  or  implied,  from  the  nature  of 
the  act  of  the  accused.  If  a  person,  without  such  provocation  as  the 
law  deems  sulHcient  to  reduce  the  crime  to  manislaughter,  intentionally 
inflicts,  with  a  dangerous  weapon,  a  blow  calcu'.ated  to  produce  and 
actually  producing  death,  the  law  deems  the  act  malicious,  and  the 
offence  is  murder.  The  law  considers  that  the  party  meant  to  effect 
what  was  the  natural  consenuonce  of  his  act ;  that  if  the  natural  conse- 
quence of  his  act  was  death,  he  meant  to  kill ;  and  if  he  so  intended,  in 
the  absence  of  such  provocation  as  the  law  considers  sufficient  to 
account  for  that  intent,  from  the  infirmit}'  of  human  passion,  then  it  is 
to  be  inferred  that  malice  existed,  and  that  from  that  feeling  the  act 
was  done.  In  other  words,  an  intention  to  kill  unlawfully,  without 
sufficient  provocation,  is  a  malicious  Intention,  and  if  the  intent  is  exe- 
cuted, the  killing  is,  in  law,  from  m.alice  aforethought,  and  is  murder. 

Keeping  these  principles  in  view,  you  will  proceed  to  incpiire  what  the 
evidence  is  of  a  premeditated  design  to  kill ;  and  secondly,  whether  the 
act  of  killing,  and  the  circumstances  attending  it,  were  such  that  malice 
is  to  be  inferred  therefrom.  The  only  evidence  at  all  tending  to  show 
premeditated  design,  is  given  by  the  master  of  the  vessel,  and  by 
Saunders,  the  cabin-boy.  The  master  states  that,  in  a  previous  part  of 
the  voyage,  four  or  five  weeks  before  the  time  in  question,  while  the 
vessel  was  in  port,  and  he  himself  was  absent  on  shore,  some  difficulty 
occurred  between  the  first  and  second  officer,  in  consequence  of  which 
the  latter  applied  to  him  for  his  discharge.  The  witness  does  not  know 
of  the  nature  or  extent  of  the  difficulty,  nor  of  the  feeling  to  which  it 
gave  rise  in  the  breast  of  either  i)arty  to  it,  saving  that  it  produced  in 
the  prisoner  a  reluctance  to  continue  under  the  command  of  the  first 
officer.  His  discharge  was  refused ;  and  there  is  no  evidence  of  any 
further  quarrel  between  them.  It  is  also  sworn  by  the  master  and  the 
cabin-boy,  that  when  Mr.  Johnson  fell,  after  being  stabbed  by  the  pris- 
oner, some  of  the  cre^^  raised  him  up,  and  the  prisoner  said:   "  It  is  of 


FACTS    I\    I  VITKI)    STATKS    V.  M    V.IA 


57 


Insiuiifv  as  a  Dcft-iisc. 


\nd  this 
lit  which 
that  the 
tliought ; 
lecessary 
liat  there 

proof  of 
f  malice. 
7  express 
lature  of 
in  as  the 
ntionally 
Juce  and 
and  the 
to  effect 
•al  conse- 
ended,  in 
icient  to 
then  it  is 
the  act 
without 
t  is  cxe- 
nmrder. 
what  the 
ther  the 
it  malice 
to  show 
and  l)y 
part  of 
liile  the 
ifflculty 
f  which 
ot  know 
rt'hich  it 
need  in 
,he  first 
of  any 
land  the 
le  pris- 
It  is  of 


no  use  ;  I  meant  to  kill  him,  and  I  have  done  it."  These  expressions 
are  not  testified  to  by  an}'  of  the  crew.  In  such  a  scene,  it  is  in  accord- 
ance with  experience  that  some  witnesses  may  observe  and  remember 
what  other  witnesses  either  did  not  hear  or  attend  to,  or  have  for<j:otten  ; 
and,  therefore,  when  these  two  witnesses  swear  to  this  expression,  if 
you  consider  they  are  fair  witnesses,  and  intend  to  tell  the  truth,  they 
should  be  believed  in  this  particular,  althouiih  others  present  do  not 
confirm  their  statement.  But,  at  the  same  time,  upon  this  question  of 
malice,  it  does  not  seem  to  me  the  expressions,  if  used,  are  important, 
because  they  only  declare  in  words  what  the  act  of  the  defendant,  in  its 
nature  and  circumstances,  evinces  with  equal  clearness.  It  is  testified, 
by  all  the  witnesses  present  at  the  time,  that  the  vessel  being  at  anchor 
about  three  miles  from  the  shore  of  the  island  of  Zanzibar,  orders  wore 
given  by  the  master  to  get  underway;  that  the  first  officer  was  for- 
ward, on  the  house  over  the  forecastle,  attending  to  his  duty  ;  that  the 
crew  were  variously  cmi)loved  in  preparations  to  make  sail ;  and  that 
the  prisoner,  being  aft,  ran  forward,  juini)ed  on  to  the  house,  seized 
Mr.  Johnson  ])y  the  collar  with  his  left  hand,  and  with  his  sheath  knife, 
which  he  held  in  his  right  hand,  stabl)ed  him  in  the  breast,  and  he 
dropped  dead.  When  the  prisoner  seized  him,  ISIr.  Johnson  said. 
"  What  do  you  mean?  "  and  the  prisoner,  at  the  instant  he  struck  the 
blow,  replied,  "  I  mean  what  I  am  dcnng." 

Now,  gentlemen,  if  you  believe  this  statement,  and  there  is  certainly 
no  evidence  in  the  case  to  contradict  or  vary  it,  every  witness  concur- 
ring with  the  rest  in  the  substance  of  it,  there  can  be  no  question  that 
the  killing  was  malicious,  provided  the  jirisoner  was,  at  tht:  time,  in 
such  a  condition  as  to  be  capable,  in  law,  of  malice.  If  you  are  satis- 
fied the  prisoner  designedly  stabbed  INFr.  Johnson  with  a  knife,  in  such 
a  manner  as  was  likely  to  cause,  and  did  cause,  death,  no  provocation 
whatsoever  being  given  at  the  time,  then,  in  point  of  law,  the  killing 
was  from  malice  aforethought,  unless  you  should  also  find  that  the 
I)risoner,  when  he  did  the  act,  was  so  far  insane  as  to  be  iucapa})le 
in  law  of  entertaining  malice ;  for  the  rules  of  law  concerning  malice 
are  all  based  upon  the  assumption  that  the  person  who  struck  the  blow- 
was,  at  th(?  time,  in  such  a  state  of  mind  as  to  be  responsible,  crimi- 
nally, for  his  act.  If  he  wai;  then  so  insane  that  the  law  holds  him 
irresponsible,  it  deems  him  incai)able  of  entertaining  legal  nialiie  ;  and, 
therefore,  no  malice  is,  in  that  r-se,  to  be  inferred  from  his  act,  how- 
ever atrocious  it  may  have  been.  And,  undoubtedly,  one  main  inquiry 
in  this  case  is,  whether  the  prisoner,  when  he  struck  the  blow,  was  so 


T 


r>H 


THE    LKCAL    Ti:sr    (II"    INSANITY 


United  Stiitis  r.  McCliU', 


far  insane  as  to  bo  held  by  the  hnv  irresponsible  for  intentionally  killing 
Mr.  Jolnison. 

Some  observations  liave  been  made,  by  the  eounsel  on  each  side,  re- 
specting tlie  character  of  tliis  defence.  On  the  one  side,  it  is  urged 
upon  you  that  tlie  defence  of  insanity  has  become  of  alarming  fre- 
quency, and  tliat  there  is  reason  to  believe  it  is  resorted  to  by  great 
criminals,  to  shield  them  from  the  just  consc'iuences  of  their  crimes, 
when  all  other  defences  are  found  desperate ;  that  there  exist  in  the 
community  certain  theories  concerning  what  is  called  moral  insanity, 
held  by  ingenious  and  zealous  persons,  and  brought  forward  on  trials 
of  this  kind,  tending  to  subvert  the  criminal  law,  and  render  crimes  not 
likel}'  to  be  jiuiiishcd  somewhat  in  proportion  to  their  atrocity.  On  the 
other  hand,  the  inhumanity,  and  the  intrinsic  injustice  of  holding  him 
guilty  of  1  -urder,  who  was  not,  at  the  time  of  the  act,  a  reasonable 
being,  have  been  brought  before  you  in  the  most  striking  forms. 

These  observations  of  the  counsel,  on  both  sides,  are  worthy  of  3'our 
attention,  and  their  just  effect  should  be  to  cause  you  to  follow,  stead- 
ily, and  carefully,  and  exactly,  the  rules  of  law  upon  this  subject.  The 
general  (jui'stion,  whether  the  prisoner's  state  of  mind,  when  he  struck 
the  blow,  was  such  as  to  exempt  him  from  legal  responsibility,  is  a  ques- 
tion of  fact  for  your  decision;  the  responsibility  of  deciding  which 
rightly  rests  upon  ycni  alone.  But  there  are  certain  rules  of  law  which 
you  are  bound  to  api)ly,  and  the  court,  upon  its  responsibility,  is  to  lay 
down  ;  and  these  rules,  when  applied,  will  conduct  j'ou  to  the  only  safe 
decision  ;  because  these  rules  will  enable  you  to  do  Avhat  you  are  sworn 
to  do,  that  is,  to  render  a  verdict  according  to  the  law  and  the  evidence 
given  you. 

You  will  observe,  then,  that  this  defence  of  insanity  is  to  be  tested 
and  governed  Ity  the  principU-s  of  law,  and  is  to  be  made  out  in  accord- 
ance with  legal  rules.  No  defendant  can  be  rightly  acquitted  of  a  crime, 
by  reason  of  insanity,  upon  any  loose,  general  notions  which  may  be 
afloat  in  the  communit}',  or  even  upon  the  speculations  of  men  of 
science.  In  a  court  of  justice  these  must  all  yield  to  the  known  and 
fixed  rules  which  the  law  prescribes.  And  I  now  proceed  to  state  to  3'ou 
such  of  them  as  are  applicable  to  this  case :  —  # 

The  first  Is,  that  this  defendant  must  be  presumed  to  be  sane  till  his 
insanity  is  proved.  Men,  in  general,  are  sulHciently  sane  to  be  respon- 
sible for  their  criminal  acts.  To  be  irresponsible,  because  of  insanity, 
is  an  exception  to  that  general  rule.  And  before  any  man  can  claim  the 
benefit  of  such  an  exception,  he  must  prove  that  he  is  within  it.  You 
will,  therefore,  take  it  to  be  the  law,  that  the  prisoner  is  not  to  be 


IXSANITY    VIIKII    DOKS   NOT   EXCUSE. 


59 


Tlio  LeSiil  Test. 


lly  killing 

side,  rc- 
t  is  urgitl 
ming  fre- 
1  by  great 
ir  crimes, 
xist  in  the 
[  insanity, 
1  on  trials 
crimes  not 
,'.     On  the 
jlding  him 
reasonable 
■ms. 

hy  of  your 
low,  stcad- 
,ject.  The 
n  he  struck 
•,  is  a  qucs- 
lliiig  which 

law  which 
y,  is  to  lay 

0  only  safe 
li  are  sworn 

\c  evidence 

|o  be  tested 
in  accord- 
)f  a  crime, 
,'h  may  bo 
)f  men  of 
tnown  and 
jtate  to  you 

ine  till  his 

Ibe  respon- 

]f  insanity, 

|i  claim  the 

it.     You 

I  not  to  be 


acquitted,  upon  the  ground  of  insanity,  unless,  upon  the  whole  evidence, 
you  are  satisfied  that  he  was  insane  when  he  struck  the  blow. 

The  next  iufiuiry  is,  what  is  meant  by  insanity  —  wluit  is  it  wliich 
exempts  from  punislunoiit,  because  its  existence  is  inconsistent  with  a 
criminal  intent?     Clearly,  it  is  not  every  kind  and  decree  of  insanity 
wliich  is  sulficient.     There  have  been,  and  probably  always  are,   in  the 
world,  instances  of  men  of  great  general  ability,  filling,  witli  credit  and 
usefulness,  eminent  positions,   and  sustaining  through  life,  with  high 
honor,  the  most  important  civil  and  social  relations,  who  were,  iipon 
some  one  topic  or  8ul»ject,  unquestiomibly  insane.     Tiicre  have  been, 
and  undoubtedly  always  are,  in  tlie  world,  many  men  whose  minds  are 
s-iich,  that  the  conclusions  of  their  reason  and  the  results  of  their  judg- 
•iient,  tested  by  those  of  men  in  general,  would  be  very  far  astray  from 
right.     There  arc  many  more,  whose  passions  are  so  strong,  and  whose 
conscience  and  reason  and  judgment  are  so  weak,  or  so  i)erverted,  that 
not  only  particular  acts,  but  tlie  whole  course  of  their  lives,   may,   in 
some  sense,  be  denominated  insane.     And  there  arc  comliinations  of 
these,  or  some  of  these  deficiencies  or  disorders,    or  perversions,  or 
weaknesses,  or  diseases.     Tliey  are  an  important,  as  well  as  a  deeply 
interesting  study  ;  and  they  find  their  place  in  that  science  which  minis- 
ters to  diseases  of  the  mind,  and  which,  in  recent  times,  has  done  so 
much  to  alleviate  and  remove  some  of  tlie  deei)est  distresses  of  huma" 
ity.     But  the  law  is  not  a  medical  or  metaphysical  sciem-e.     Its  search 
is  after  those  practical  rules   which   may  be   administered,   without 
inhumanity,    for  the  security  of   civil  society,  by  protecting  it   from 
crime.     And,  therefore,  it  inquires,  n  )t  only  to  the  peculiar  constitution 
of  mind  of  the  accused,  or  what  weaknesses,  or  even  disorders,  he  was 
afllioted  with,  but  solely  whether  he  was  capable  of  having,  and  did 
have,  a  criminal  intent.     If  he  had,  it  punishes  him ;  if  not,  it  holds 
liim  dispunishable.     And  it  supplies  a  test  by  which  the  jury  is  to 
ascertain  whether  the  accused  be  so  far  insane  as   to  be  irres[)onsible. 
Thatti'st  is,  the  capacit\'  to  distingi;isli  l)etween  right  and  wrong,  as  to 
the  particular  act  with  which  the  accused  is  charged.     If  he  under- 
stands the  nature  of  his  act;  if  he  knows  his  act  is  criminal,  and  that 
if  he  does  it,  he  will  do  wrong  and  deserve  punishment,  then,  in  the 
judgment  of  the  law,  he  has  a  criminal  intent,  and  is  not  so  far  insane  as 
to  be  cxtMupt  from  responsibility.     On  the  other  hand,  if  he  is  under 
such  dtlnsion  as  not  to  understand  the  nature  of  his  act,  or  if  he  has 
lift  suflicient  memory  and  reason  and  judgment  to   know  that  he 
is  doing  wrong,  or  not  suflicient  conscience  to  discern  that  his    acts 
criminal  and  deserving  punishment,  tl'tn  he  is  not  responsible. 


60 


THE   LEUAL   TEST   OF    IX.SAXITV 


Unitf«l  States  v.  McUlue. 


This  is  tlie  test  wiiieli  tlie  law  prescribes,  and  tlieso  are  the  inquiries 
which  you  are  to  malie  on  thi.s  part  of  tlie  case:  Did  tlie  prisoner 
understand  the  nature  of  his  act  when  he  stabbed  Mr.  Johnson?  Did 
he  knf)W  he  was  doing  wrong,  and  would  deserve  punishment?  Or,  to 
apply  them  more  nearly  to  tliis  case:  Did  the  prisoner  know  that  he  was 
killing  Mr.  Johnson  ;  that  so  to  do  was  criminal  and  deserving  punish- 
ment? If  so,  he  iiad  the  criminal  inti'ut  necessar}''  to  convict  him  of  the 
crime  of  murder,  and  he  caiuiot  be  acquitted  on  the  ground  of  insanity. 
It  is  not  necessary  here  to  consider  a  case  of  a  person  killing  another 
under  a  delusive  idea,  which,  if  true,  would  either  mitigate  or  excuse 
the  offence,  for  there  is  no  evidence  pointing  to  any  such  delusion. 

It  is  asserted  by  the  prisoner,  that  when  he  struck  the  blow  he  was 
suffering  under  a  disease  known  as  delirium  tremens.     He  has  intro- 
duced evidence  tending  to  prove  his  intemperate  drinking  of  ardent 
spirits  during  several  days  before  the  time  in  question,  and  also  certain 
effects  of  this  intemperance.     Physieians  of  great  eminence,  and  parti- 
cularly experienced  in  the   observation  of    this  disease,   have  been 
examined  on  both  sides.     They  were  not,  as  3'ou  observed,  allowed  to 
give  their  opinions  upon  the  case ;  because  the  case,  in  point  of  fact,  on 
which  any  one  might  give  his  opinion,  might  not  be  the  case  which  you, 
upon  the  evidence,  would  find  ;  and  there  would  be  no  certain  means  of 
knowing  whether  it  was  so  or  not.     It  is  not  the  province  of  an  expert 
to  draw  inferences  of  fact  from  tlie  evidence,  but  simply  to  declare  his 
opinion  ui)on  a  known  or  liypothetical  state  of  facts ;  and,  therefore, 
the  counsel  on  each  side  have  put  to  the  physicians  such  states  of  fact 
as  they  deem  warranted  b}'  the  evidence,  and  have  taken  their  opinions 
thereon.     If  you  consider  that  any  of  these  states  of  fact  put  to  the 
physicians  are  proved,  then  the  opinions  thereon  are  admissible  evidence, 
to  be  weighed  by  3011.     Otherwise,  their  o[)ini(jns  are  not  applicable  to 
this   case.      And  here,   I  may  remark,  gentlemen,  that,  although  in 
general,  witnesses  are  held  to  state  only  facts,  and  are  not  allowed  to 
give  their  opinions  Iii  a  court  of  law,  yot  this  rule,  does  not  exclude  the 
opinions  of  those  whose  professions  and  studies,  or  occui)ations,  are 
supposed  to  have  rendered  them  peculiarly  skilful  concerning  questions 
which  arise  in  trials,  and  which  belong  to  some  particular  calling  or 
profession.     We  take  the  opinions  of  physicians  in  this  case  for  thf 
same  reason  we  resort  to  them  in  our  own  cases  out  of  court,  because 
they  are  believed  to  be  better  able  to  form  a  correct  opinion,  upon  a 
subject  within  the  scope  of  their  studies  and  practice,  than  men  in 
general,  and,  therefore,  better  than  those  who  compose  your  panel. 
But  these  opinions,  though  proper  for  jour  respectful  consideration, 


OriMONS   OF   PHYSICIANS. 


<>1 


Dt'liriuin  TrciiRus. 


i  inquiries 
B  prisoner 
ion?  Did 
,?  Or,  to 
hat  he  was 
ig  punish- 
hiin  of  the 
f  insanity, 
iig  another 
or  excuse 
ision. 

ow  he  was 
has  intro- 
of  ardent 
,lso  certain 
and  parti- 
have  been 
allowed  to 
of  fact,  on 
[Which  you, 
n  means  of 
an  expert 
declare  his 
therefore, 
tes  of  fad 
ir  opinions 
)ut  to  the 
|e  evidence, 
)lic;ible  to 
lltlioui^b  in 
owed  to 
elude  the 
titions,  are 
questions 
1  calling  or 
!  for  tht' 
u,  because 
^1,  upon  11 
\in  men  in 
)ur  panel, 
kideration, 


all. 


and  entitled  to  have,  in  3'our  hands,  all  that  weight  which  reasonably  and 
justly  belong  to  them,  are  nevertheless  not  binding  on  you,  against  your 
own  judgment,  but  should  be  weighed,  and,  especially  where  they  differ, 
compared  by  3-011,  and  such  effect  allowed  to  them  as  you  think  right; 
not  forgetting,  that  on  you  alone  rests  the  responsibility  of  a  correct 
verdict.  Besides  these  opinions,  upon  cases  assumed  by  the  counsel, 
which  you  may  find  to  correspDud  more  or  less  nearly  with  tlie  actual 
ease  on  trial,  the  physicians  have  also  described  to  you  the  symptoms 
of  the  disease  of  delirium  tremens.  They  all  agree  that  it  is  a  disease 
of  a  very  distinct  and  strongly  marked  character,  and  as  little  liable  to 
be  mistaken  as  any  known  in  medicine.  All  the  phj'sicians  have 
described  it  substantially  in  the  same  way.  I  will  read  to  you  from  my 
notes  that  given  by  Dr.  Bell.     He  says  the  83'mptoms  are :  — 

1.  Delirium,  taking  the  form  of  apprehensiveness  on  the  part  of  the 
patient.  He  is  foaiful  of  something,  —  fears  pursuit  by  oJlicers  or 
foes.  Sometimes  demons  and  snakes  are  about  him.  In  the  earlier 
stages,  in  attempting  to  escape  from  his  imaginary  pursuers,  he  will  at- 
tack others  as  well  as  injure  himself.  But  he  is  much  more  apprehen- 
sive of  receiving  injury,  than  desirous  of  inllieting  it,  except  to  escape. 
He  is  gonerally  timid  and  irresolute,  and  easily  pacified  and  controlled. 

2.  Sleeplessness.  I  believe  delirium  tremens  cannot  exist  without 
this. 

3.  Trcmulousness,  especially  of  the  hands,  but  showing  itself  in  the 
limbs  and  the  tongue. 

4.  After  a  time  sleep  occurs,  and  reason  thus  returns.  I  do  not  re- 
call any  instance  in  which  sleep  came  on  in  less  than  three  days,  dating 
from  the  last  sleep.  At  first  it  was  rather  l)roken,  not  giving  full  relief  : 
and  this  is  followed  by  very  profound  sleep,  lasting  six  or  eight  hours, 
from  which  the  patient  wakes  sane. 

Dr.  Stedman,  who,  from  his  care  of  the  Marine  Hospital,  at  Chelsea, 
and  of  the  City  Hospital,  at  South  Boston,  has  had  great  cxpci'ience  in 
the  treatment  of  this  disease,  after  describing  its  sym^itoms  substan- 
tially as  Dr.  Bell  did,  says  its  access  may  be  very  sudden,  and  he  has  often 
known  it  first  manifest  itself  by  the  patients  attacking  those  about  them, 
regarding  them  as  enemies  ;  that  it  is  in  accordance  with  his  experience, 
th:ita  case  may  terminate  within  two  da^-s  of  the  time  when  the  delirium 
first  manifests  itself,  and  that  it  rarely  lasts  more  than  four  days ;  that 
he  lias  arrested  the  disease  in  forty-eight  hours  by  the  use  of  sulphuric 
ether. 

Taking  along  with  you  these  accounts  of  the  s}^mptoms  and  course 
and  termination  of  this  disease,  you  will  inquire  wliether  the  evidence 


T 


()2 


THE    LEGAL   TEST   OF   IN.SANITV. 


Uiilti'd  StatL-s  V.  McGUu' 


proves  these  symptoms  existed  in  this  case ;  and  whether  the  previous 
luil)its  and  thi;  intemper:i,te  use  of  ardent  spirits,  f rom  wliieli  tins  disease 
springs,  are  shown  ;  and  wliether  the  recovery  of  the  prisoner  corre- 
sponded with  the  course  and  termination  of  the  disease  of  delirium 
tremens^  as  dcsciil)ed  l)}*  tlic  pliysiciuns. 

In  respect  to  the  [)revi()us  intemperance  of  t'.ie  prisoner,  and  the  symp- 
toms, course,  and  tcrminatii^n  of  tlie  disease,  you  are  to  look  to  the 
accounts  of  the  conduct  and  acts  of  the  prisoner  given  by  his  shipmates. 
Their  testimony  will  be  fresh  in  your  recollection,  and  it  is  not  neces- 
sary for  me  to  detail  it.  How  recently  before  the  homicide  had  he 
slept?  Was  his  demeanor,  for  two  or  three  da3's  previous,  natural,  or 
was  he  restless?  Was  any  tremoi-  of  the  hands  or  liml)s  visible,  and  if 
so,  was  it  very  marked  or  not?  Did  he  utter  any  exclamations  manifest- 
ing apprehensiveness  before  or  immediatel}'  after  the  act?  W^hen,  and 
under  what  circumstances  did  he  recover  his  reason,  if  he  was  delirious, 
and  especially  did  he  recover  it  without  sleep?  T  ese  are  all  important 
inquiries  to  be  made  by  you,  and  answered,  as  a  careful  consideration 
of  the  evidence  may  convince  you  the}'  sIkjuUI  be  answered. 

It  is  not  denied,  on  the  part  of  the  government,  that  the  prisoner  had 
drank  interapcrately  of  the  ardent  spirits  of  the  country  during  some 
days  before  the  occurrence.  But  the  district  attorney  insists,  that  he 
had  continued  so  to  drink  down  to  a  short  time  before  the  homicide ; 
and  that  when  he  struck  the  bhnv  it  was  in  a  fit  of  drunken  madness. 
And  this  renders  it  necessar}'  for  me  to  instruct  you  concerning  the  law 
upon  the  state  of  facts,  which  the  [)rosccutor  asserts  existed. 

Although  delirium  tremens  is  the  product  of  intemperance,  and  there- 
fore in  some  sense  is  voluntaril}'  brought  on,  yet  it  is  distinguishable, 
and  by  the  law  is  distinguished,  from  thai  tiiaduess  which  sometimes 
accompanies  drunkenness. 

If  a  person  suffering  under  delirium  tremens  is  so  .<V  •  .^.r-  as  I  have 
described  to  be  necessary  to  render  him  irresponsi^^l:,  ...  ..o.w  does  not 
punish  him  for  any  crime  he  may  commit. 

But  if  a  person  commits  a  crime  under  the  immediate  iafluence  of 
liquor,  and  while  intoxicated,  the  law  does  punish  him,  liowever 
mad  he  may  have  been.  It  is  no  excuse,  but  rather  an  Siggravation  of 
his  offence,  that  he  first  deprived  himself  of  his  reason  before  he  did  the 
act.  You  will  easily  see  that  there  would  be  no  security  for  life  or 
property  if  men  were  allowed  to  commit  crimes  with  impunity,  provided 
they  would  first  make  themselves  drunk  enough  to  cease  to  be  reasonable 
beings.  And,  therefore,  it  it  is  an  inquiry  of  great  importance  in  this 
case,  and,  in  the  actual  state  of  the  evidence,  I  think,  one  of  no  small 


IXSAMTV    IJKsri.TIN(!    IKO.M    DIJLN  KKNNKSS. 


63 


3  previous 
lis  disease 
ner  corre- 
f  (lelirium 

the  syinp- 
)ok  to  the 
shipmates, 
not  ncces- 
kle  had  he 
natural,  or 
l)le,  and  if 
s  manifest- 
VViien,  and 
3  delirious, 
I  important 
nsideration 

lisoner  had 
iring  some 
its,  that  he 
lioniicide ; 
madness. 
Ing  the  law 

land  there- 
Iguishable, 
Isometiraes 

as  I  have 
-  does  not 

luonce  of 
liowever 

kvation  of 
did  tho 

lor  life  or 
provided 

leasonable 

Ice  in  this 
no  small 


Ddivhiin  Trt'mcn.s. 


dilTiculty,  wiicther  tliis  homicide  was  committed  while  the  prisoner  was 
suffering  under  tiiat  marked  and  settled  disease  of  deliriuin  tremeus,  oi- 
in  a  lit  of  drunken  madness.     My  instruction  to  yon  is,  that  if  tiie  pris- 
oner, while  sane  and  responsilile,  made  himself  intoxicated,  and  wliili' 
intoxicated  committed  a  nnnder  by  reas(jn  of  insanity,  which  was  one 
of  the  consequences  of  tliat  intijxication,  and  one  of  tlie  attendants  on 
that  state,  tlieii  he  is  res[)()nsil»le  in  point  of  law,  and  must  be  punished. 
This  is  as  clearly  the  law  of  the  land  as  the  other  rule,  which  exempts 
from  punislunent  acts  done  under  tldiriaiu  tremens.     It  may  sometimes 
be  ditlicult  to  determine  under  which  rule,  in  point  of  fact,  the  accused 
comes.     Perhaps   you  will   think  it  not  easy  to   determine  it   in  this 
case.     But  it  is  the  duty  of  the  Jury  to  ascertain  from  tlie  evidence  on 
wliich  side  of  the  hue  this  ease  falls,  and  to  decide  accordingly.     It 
may  be  very  material  for  3'ou  to  know  on  which  party  is  tlie  burden  of 
proof  in  this  part  of  the  case.     I  have  already  told  you,  that  it  is  in- 
cumbent on  the  prisoner  to  satisfy  you  he  was  insane  when  he  struck  the 
blow;  for  the  reason  that,  a>.  men  in  general  are  sane,  the  law  presiim*  s 
each  man  to  be  so  till  tlie  contrary  is  proved.     But  if  tlie  contrary  hns 
been  proved,  if  you  are  satisfied  the  prisoner  was  insane,  the  law  docs 
not  presume  his  insanity  arose  from  any  particular  cause  ;  and  it  is  in- 
cumbent on  the  i)art3''  which  asserts  that  it  did  arise  from  a  particular 
cause,  and  tiiat  the  prisoner  is  guilty,  by  law,  because  it  arose  from 
that  cause,  to  make  out  this  necessary  element  in  the  charge  to  the 
same  extent  as  every  other  element  in  it.     For  the  charge  then  assumes 
this  form, — that  the  prisoner  committed  a  murder,  for  which,  though 
insane,  he  is  responsible,  because  his  insanity  was  produced  by,  and 
accompanied,  a  state  of  intoxication.     In  my  judgment,  the  government 
must  satisfy  you  of  these  facts,  which  are  necessary  to  the  guilt  of  the 
prisonor  in  point  of  law,  provided  you  are  convinced  he  was  insane. 
You  will  look  carefully  at  all  the  evidence  bearing  on  this  question,  and 
if  you  are  convinced  that  the  prisoner  was  insane,  to  that  extent  which 
I  have  described  as   necessary  to   render  him  irresponsible,  you  will 
acquit  him;  unless  you  are  also  convinced  his  insanity  was  produced 
by  intoxication,  and  accompanied  that  state ;  in  which  case  you  will 
find  him  guilty, 

The  prisoner  teas  acquitted. 


04 


TllK    LEiJAL   TEST   OF    INSANITY 


8tiitu  V.  Jones. 


(I 


NO  LEGAL  TEST  OF  INSANITY. 

State  v.  Jones. 

[50  N.  II.  309;  9  Am.  Rep.  242.] 
In  the  Supreme  Court  of  New  Hampshire,  June,  1871. 
Hon.  IIknry  a.  Bki.lows,  C kief  Justice. 

**      JONATIIAX  E.  SaUOKNT, 
ClIAKLKS   DOK, 

Jkkkmiaii  Smith,  [  Judges. 

WlI.I.IAM    L.  FoSTKH, 

William  S.  Ladd, 

1-  There  is  noljefral  Test  of  Insanity  in  ii  criminal  case. 

Question  is.  Was  Crime  the  Result  of  Mental  Disease?  —  On  the  trial  of  an  indict- 
ment for  muriier,  the  jury  were  instructed  that  if  the  prisoner  committed  the  act  in  a 
manner  that  would  be  criminal  and  unlawful  if  he  was  sane,  the  verdict  should  be  "  not 
guilty  by  reason  of  ini>anity,"  if  iho  killing  were  ihu  offspring  or  product  of  mental 
disease  in  the  prisoner.    Held,  correct. 

The  (lefend.int  was  foil  ml  guilty  of  murder  in  the  first  degree,  upon 
an  indictment  cliarging  liim  with  having  murdered  his  wife.  Defence, 
insanity.  There  was  evidence  tending  to  show  that  defendant  believed 
his  wife  guilty  of  adultery  with  one  French,  and  that  he  killed  lier  for 
that  reason.  This  belief  was  alleged,  on  the  part  of  the  defendant,  to 
have  been  an  insane  delusion. 

The  defendant  excepted,  to  the  several  refusals  of  the  court  to  give 
the  jury  each  of  the  following  instructions:  — 

1.  Under  the  indictment  the  defendant  cannot  be  convicted  of  murder 
in  the  first  degree. 

2.  If  the  defendant  was  diseased  in  mind  to  any  extent  whatever,  and 
the  mental  disease,  under  which  he  labored,  had  any  influence  what- 
ever in  leading  him  to  kill  his  wife,  he  was  not  responsible. 

3.  Any  degree  of  insiinity  or  delusion,  and  especially  such  insanity 
or  delusion  as  would  render  the  defendant  incompetent  to  make  a  will, 
makes  him  also  incapable  of  crime,  and  not  responsible,  though  the  jury 
may  be  unable  to  trace  any  connection  between  the  partial  insanity  and 
the  act  complained  of. 

4.  Delusion  is  the  legal  test  of  insanity. 

5.  If  the  defendant  was  under  the  influence  of  any  Insane  delusion 
whatever,  or  any  insane  delusion  connected  with  the  killing  of  his  wife, 
he  was  not  responsible. 

6.  Knowledge  of  right  and  wrong  in  respect  to  the  act  in  question, 
is  the  legal  test  of  insanity. 


"•I 


STATE   V.    JONE8. 


05 


Cliarjii-  of  tlie  Court. 


2. 


of  an  Indict- 

the  act  in  a 

ould  be  "  not 

;t  of  mental 


it 


grec,  upon 
Defence, 
believed 
d  her  for 

endant,  to 

irt  to  give 

of  murder 

tever,  and 
ince  what- 

li  insanity 

life  a  will, 

the  jury 

^anity  and 

delusion 
his  wife, 

1  question, 


7.  If  the  defendant  killed  his  wife  under  the  control  of  an  irresistible 
impulse,  he  is  not  legally  responsible. 

The  defendant  excepted  to  the  following  instructions  given  to  the 
jury:  — 

"  If  the  defendant  killed  his  wife  .n  a  manner  that  woiJd  be  criraina' 
iind  unlawful  if  the  defendant  were  sane,  tlie  verdict  should  be  '  not 
giulty  by  reason  of  insanity,'  if  the  killing  was  the  offspring  or  product 
of  mental  disease  in  the  defendant. 

"  Neither  delusion  nor  knowledge  of  right  and  wrong,  nor  design  or 
cunning  in  planning  and  executing  the  killing,  and  escaping  or  avoiding 
detection,  nor  ability  to  recognize  acquaintances,  or  to  labor  or  transact 
business,  or  to  manage  affairs,  is,  as  a  matter  of  law,  a  test  of  mental 
disease ;  but  all  symptoms  and  all  tests  of  mental  disease  are  purely 
matters  of  fact,  to  be  determined  by  the  Jury.  Wbether  the  defendant 
bad  a  mental  disease,  and  whether  the  killing  of  his  wife  was  the  pro- 
duct of  such  disease,  are  questions  of  fact  for  the  jury. 

"  Insanity  is  mental  disease,  disease  of  the  mind.  An  act  produced 
by  mental  disease  is  not  a  crime.  If  tbe  defendant  had  a  mental  disease 
which  irresistibl}'  impelled  him  to  kill  his  wife,  if  the  killing  was  the 
product  of  mental  disease  in  him,  he  is  not  guilty;  he  is  innocent — as 
innocent  as  if  the  act  had  been  produced  by  involuntary  intoxication,  or 
by  another  person  using  his  hand  against  his  utmost  resistance.  Insan- 
ity is  not  innocence  unless  it  produced  the  killing  of  his  wife. 

"  If  the  defendant  had  an  insane  impulse  to  kill  his  wife,  and  could 
tiave  successfully  resisted  it,  he  was  responsible.  Whether  every  insane 
impulse  is  always  irresistible  is  a  question  of  fact.  Whether,  in  this 
case,  the  defendant  had  an  insane  impulse  to  kill  his  wife,  and  whether 
lie  could  resist  it,  are  questions  of  fact. 

"  Whether  an  act  may  be  produced  by  partial  insanity,  when  no  con- 
nection can  be  discovered  between  the  act  and  the  disease,  is  a  question 
of  fact. 

"  The  defendant  is  to  be  acquitted  on  the  ground  of  insanity,  unless 
the  jury  are  satisfied,  beyond  a  reasonable  doubt  that  the  killing  was 
not  produced  by  mental  disease." 
Tbe  defendant  was  sentenced,  and  filed  this  bill  of  exceptions. 
Will.  C.  Clarke.,  attorney-general,  for  the  State;  Hatch  &  Wigging 
for  defendant. 

Ladd,  J.  (after  deciding  some  minor  questions).  — The  remaining  and 
most  important  questions  in  the  case  arise  upon  tlie  instructions  given 
by  tbe  court  to  the  jury,  and  the  refusal  to  give  instructions  requested 
liy  defendant's  counsel. 


i 

i 


6<; 


THE    LEOAL    TEST   OF    IXSAMTV. 


Stuto  V.  .lom-s 


When,  as  i:i  this  case,  a  person  charjred  with  crime,  admits  the  act, 
hut  sets  v^i  tlie  defence  of  insanity,  tlie  real  nltimato  ([nestion  to  be  de- 
termined seems  to  l)e,  wiietlier  at  tlie  time  of  tlie  act,  he  had  the  mental 
capacity  to  entertain  a  critniiial  intent ;  whether,  in  point  of  fact,  he  did 
entertain  such  intent.  In  solving  that  problem,  as  in  all  otlier  cases,  it 
is  for  the  court  to  find  the  law,  and  for  the  jury  to  find  the  fact.  The 
main  question  for  our  consideration  here  is,  Avhat  part  of  this  difficult 
iiKiuiry  is  law,  and  what  part  fact? 

It  will  ])(^  readily  agreed,  as  said  by  Sn.vw,  C.  J.,  in  Cnm.  v.  Ror/pra,^ 
that  if  the  reason  and  mental  power  of  the  accused  are  either  sodeficienl 
that  lie  has  no  will,  no  conscience,  or  controlling  mental  pcjwer,  or  ift 
through  the  overwhelming  violence  of  mental  disease,  his  intellectua- 
power  is,  for  the  time,  oUiterated,  he  is  aot  a  responsible  agent  and,  of 
course,  is  not  punishable  for  acts  which  otherwise  would  be  criminal. 
But  experience  and  observation  show  that  in  most  of  the  cases  which 
come  before  the  courts,  where  it  is  sulHcientl}''  apparent  that  disease  has 
attacked  the  mind  in  some  form  and  to  some  extent,  it  litis  not  thus  wholly 
obliterated  the  will,  the  conscience,  and  the  mental  power,  but  has  left 
its  victim  still  in  possession  of  some  degree  of  ability  in  some  or  all 
these  qualities.  It  may  destroy,  or  it  may  only  impair  and  becloud  the 
whole  mind  ;  or  it  may  destroy  or  only  impair  the  functions  of  one  or 
more  faculties  of  the  mind.  There  seem  to  be  cases  where,  as  Euskine 
said  in  JLtdtteld's  Ciise,  reason  is  not  driven  from  her  seat,  but  where 
distraction  sits  down  upon  it  along  with  her,  holds  her  trembling  upon 
it,  and  frightens  her  from  her  propriety. 

The  term,  "  partial  insanity,"  has  been  applied  to  such  cases  by  writers 
and  judges,  from  Lord  Hale  to  Chief  Justice  Shaw,  where,  as  has  been 
said:  "  The  mind  may  be  clouded  and  weakened,  but  not  incapable  of 
remembering,  reasoning,  and  judging;  "  and  it  is  here  that  the  difficulty 
of  the  subject  begins,  and  that  confusion,  and  contradiction  in  th  ■ 
authorities  make  their  appearance.  "  No  one  can  say  where  twilight 
ends  or  begins,  but  there  is  ample  distincliou  between  night  and  day." 
We  are  to  inquire  whether  a  universal  test  has  been  found  wherewith  to 
determine,  in  all  cases,  the  line  betweeen  criminal  accountability  ami 
non-accounlabilitj'  —  between  the  region  of  crime  and  innocence  —  in 
those  cases  which  lie  neither  wholly  in  the  darkness  of  night  nor  the 
light  of  day.  If  such  a  test  exists,  or  if  one  can  be  found,  it  is  of  tlio 
utmost  importance  that  it  be  clearly  defined  and  ])roadly  laid  down,  sn 
that,  when  it  is  given  to  a  jury,  it  may  aid  rather  than  confuse  theiu. 


I 


'  7  Melc.  500. 


IS   TIIF.Ur,    A    I.KIJAI,    TKST? 


<i7 


Till!  Karly  Ciihos  Ucviowcd. 


Is  the  act, 
lo  1)6  <U'- 
tho  meiiliil 
iict,  he  tVid 
i>r  cases,  it 
fact.  Tlie 
as  iVttficult 

V.  Rogers,^ 
soilef'ieii'nl 
:)wer,  or  ift 
iutcllcctua- 
cut  ami,  of 
le  crhninal. 
3rtse3  which 
disease  has 
thus  wliolly 
but  has  left 
some  or  all 
[becloud  the 
of  one  or 

lis    EUSKINK 

but  where 
bling  upon 

bj'  writer^^ 
s  has  been 
ncapable  of 
le  difftcully 
Lion  in   th  • 
10  twilight 
and  day." 
herewith  to 
ability  and 
)cencc  —  i" 
<rht  nor  the 
it  is  of  the 
d  down,  sn 
fuse  theni. 


To  ascertain  whether  a  rule  has  hitherto  been  found,  we  must  look  to 
the  authorities;  and  so  far  as  we  ha\c  heeii  ahle  to  examine  them,  tlie 
leading  and  faujiliar  Knglish  cases  and  aiilhorities  arc  substantially  as 
follows:  — 

Lord  IIalk  said  the  mental  ca[)acity  ordinarily  pcjsscssed  hy  a  chiM 
fourteen  years  old  was  the  test.  JNIr.  Justice  Tk.vcy,  in  Arnold's  (Jose 
(172.*]),  said:  "A  man  must  bet  'tally  deprived  of  his  understanding  and 
memory,  so  as  not  to  know  whut  !.e  is  doing,  no  more  than  an  infant,  a 
l)rutc,  or  a  wild  l)east;  "  '  and  tiie  same  doctrine,  sid)stantially  seems  to 
have  been  acted  on  in  Ferrer's  Casa."^  The  ni'xt  prominent  case  in  the 
l)ooks  is  HadJhkVs  ('(isa  ( ISOO)  ;  and  all  I  desire  to  say  of  that  case,  in 
this  cotmectiou  is,  that  it  seems  to  stand  by  itself.  It  was  clear  that 
Iladfield  knew  right  from  wrong;  it  wa;  clear  that  he  knew  tlie  nature 
(if  the  act  he  was  aliout  to  commit;  it  was  clear  he  manifested  design, 
foresight,  and  cunning  in  planning  and  executing  it ;  and  it  was  clear 
he  knew  it  would  subject  him  to  punishment,  which  was,  indeed,  his 
motive  in  committing  it.  Tlie  most  that  can  be  said  of  it  is,  that  every- 
body saw  he  was  insane,  and  that  his  insanity  produced  the  act. 

Next  come  three  cases  tried  in  the  ^-ear  1812,  Parker's  Case,'-^  Boio- 
Wri  Case,'^  and  Bellinfjham's  Case;  in  each  of  which  a  more  humane 
rule  than  that  of  Mr.  Justice  Tk act  was  adopted,  namely,  that  knowl- 
edge of  right  and  wrong,  considered  as  abstract  qualities,  was  the  test ; 
iiltliough  in  Boicler's  C'xse,  Mr.  Justice  Lk  Bi.anu  added  a  further  test, 
clearly  suggested  by,  and  growing  out  of,  the  facts  of  that  jtarticular 
case,  and  designed  to  furnish  the  rule  by  which  the  jury  should  be 
guided  in  deciding  it,  rather  than  by  the  formula  in  respect  to  right  and 
wrong,  namely,  that  it  was  for  the  jury  to  determine  whether  the  prisoner 
was  under  any  illusion  in  respect  to  the  prosecutor,  which  rendered  his 
iniud,  at  the  moment,  insensible  of  the  nature  of  the  act  he  was  about 
to  commit.     And  in  Bell  Ingham's  Case,  Sir  Jamks  JManfield,  C.  J,, 
took  the  extraordinary  liberty  of  changing  the  whole  scope  and  meaning 
of  the  rule,  b}'  telling  the  jury,  in  addition,  that   "  It  must  be  proved 
l)eyoiul  all  doubt,  that  at  the  time  he  committed  the  atrocious  act,  he 
did  not  consider  that  murder  was  a  crime  against  the  laws  of  God  and 
nature." 

It  can  hardl}'  be  contended  that  these  three  cases  go  far  toward 
establishing  a  rule;  for  there  is  not  nuich  reascjn  in  calling  that  a  rule, 
which  the  judge  at  the  trial  may  feel  at  liberty  to  change,  for  the  pur- 


'  16  How.  St.  Tr.  764. 
''  19  How.  St.  Tr,  Ut7. 


^  Reported  in  Collin.son  on  Lun.  477 
*  Id.  673. 


08 


THE   LEOAL   TE8T   OF    INSANITY 


Stall!  V.  JoiiPH. 


pose  of  bringirifj  about  a  conviction   or   ncciuittnl,    ncconling  to  his 
individunl  view  of  tlu'  facts  appcarinj^  in  tlic  case  before  him. 

But  tiiese  remarks  of  Mavskiki.m,  C.  J.  were  approved  by  I^ord  Ltno- 
iifKST,  in  Hex  v.  Offunl,^  aitii()u<^h  he,  in  the  same  l)reatli,  or  at  least  in  the 
siinie  charge  to  the  jur}',  laid  down  another  and  a  new  test,  which  seems 
to  be  entirely  inconsistent  with  the  rule  in  Bdlini/Inim'H  Case,  namely, 
th:\t  the  jury  must  be  satisfied,  before  they  could  aiMpiit  the  prisoner  on 
the  ground  of  insanit}',  that  he  did  not  know,  when  he  committed  the 
act,  what  the  effect  of  it,  if  fatal,  would  l)e  with  reference  to  the  crime 
of  murder.  This  is  not  so  clear  as  might  be  desired,  but  I  should  sup- 
pose it  would  strike  the  average  ap|)rchension  of  a  jury  as  about 
ccpuvalcnt  to  telling  them  that  he  must  know  that  the  killing  would  be 
murder;  which  is  a  qualification  of  the  rule  as  much  in  favor  of  life  as 
Sir  James  Mansfield's  was  in  favor  of  death. 

In  Reg.  v.  Oxfonl,^  Lord  Desman  charged  the  jury:  "If  some 
controlling  disease  was,  in  truth,  the  acting  power  within  him,  which  he 
could  not  resist,  then  he  will  not  be  responsible.  It  is  not  more  impor- 
tant than  dilHcult  to  lay  down  a  rule  by  which  you  are  to  be 
governed.  *  *  *  On  the  pjut  of  the  defence,  it  is  contended  that 
the  prisoner  was  non  compos  mentis,  that  is  (as  it  has  been  said)  unable 
to  distinguish  right  from  wrong;  or,  in  other  words,  that  from  the 
effect  of  a  diseased  mind  he  did  not  know  at  the  time  that  the  act  he 
did  was  wrong.  *  *  »  Upon  the  whole,  the  question  will  be, 
whether  all  that  has  been  proved  about  the  prisoner  at  the  bar  shows 
that  he  was  insane  at  the  time  when  the  act  was  done ;  whether  the 
evidence  given  proves  a  disease  in  the  mind,  as  of  a  person  quite 
incapable  of  distinguishing  right  from  wrong.  Something  has  been  said 
about  the  power  to  contract,  and  to  make  a  will.  But  I  think  those 
things  do  not  supply  any  test.  The  question  is  whether  the  prisoner  was 
laboring  under  that  species  of  insanity  which  satisfies  you  that  he  was 
quite  unaware  of  the  nature,  character  and  consequences  of  the  act  he 
Avas  committing,  or,  in  other  words,  whether  he  was  under  the  influence 
of  a  diseased  mind,  and  was  wholly  unconscious  at  the  time  he  was  com- 
mitting the  act  that  it  was  a  crime." 

But  three  years  afterward,  in  Reg.  v.  Higginson,^  Mr.  Justice 
Maule,  apparently  in  utter  disregard  to  the  elaborate  charge  of  Lord 
Denman  in  Reg.  v.  Oxford,  said  to  the  jury:  "If  you  are  satisfied 
that  the  prisoner  committed  this  offence,  but  you  are  also  satisfied  by 
the  evidence  that  at  the  time  of  the  committing  of  the  offence  the 


1  6C.&  p.  168(1831). 


«  9C.  &P.  52.")  (1840). 


>  1  Car.  A  Kir.  129. 


18   TIIKUK    A    I.KdAL   TKST? 


♦511 


Tlif  Iiirnilry  III  McNiiu'litcii's  Cii!*' 


ng  to  his 

on  I  Ltmh- 
i!ust  in  tlie 
licli  seems 
?,  namely, 
irisoncr  on 
initU'd  the 
the  crime 
hould  sup- 
'  as   about 
T  would  be 
r  of  life  as 

"  If  some 

1,  which  h(! 

acre  impor- 
are  to  be 

tended  that 
id)  unable 
from  the 
the  act  he 

<n  will  be, 
bar  shows 
hether  the 
rson  quite 
s  been  said 
hink  those 
Irisoner  was 
Ihat  he  Avas 
the  act  he 
16  influence 
le  was  com- 

U".  Justice 
re  of  Lord 

satisfied 
itisfied  by 

Mice  the 


prisoner  vvassoinsiuu'  that  ho  did  not  know  rijxhtfrom  wrong,  he  should 
be  iu;(juittcd  on  tliiit  ground  ;  but  if  ycni  think  that  at  the  time  of  tlie 
offence  he  tlid  know  rigiit  from  wrong,  he  is  responsible  for  his  acts, 
altliough  he  is  of  weak  intellect."  And  again,  in  IHIH,  in  Rig.  v. 
Stokt's,  the  same  test,  knowledge  of  riglitand  wrong  in  tlic  abstract,  was 
applitMl  by  Haron  lioi.KK,  who  said:  "  Kvery  man  is  held  responsilile  lor 
Ills  acts  by  the  laws  of  his  country,  if  he  cr.n  discern  right  from  wrong." 
The  numerical  preponderance  of  authority  in  Knghind,  as  gathered 
from  the  cases  tluis  far,  woidd  seem  to  be  decidedly  in  favor  of  the  rule 
that  knowledge  of  right  and  wrong,  without  reference  to  the  particular 
act,  is  the  test ;  although  their  force  is  nnich  shaken,  if  not  wiioUy  over- 
thrown, by  the  quaiidcations  which  Judges  have  seemed  to  feel  at  liberty 
to  introduce,  to  meet  their  individual  views,  or  the  oxigciu-ios  of  par- 
ticular cases ;  and  especially  by  the  charge  of  I.>;rd  Denman  in  Iteg. 
V.  Oxford. 

The  memorable  effort  of  the  House  of  Lords,  in  1843,  to  have  the 
confusion  and  contlict  of  opinion  which  had  arisen  on  this  perplexing 
question  all  cleared  away  by  one  distinct  and  full  avowal  by  the  judges 
of  what  the  law  was  and  should  be  in  relation  to  it,  is  too  conspicuous 
In  the  history  of  the  sul)ject  to  l)e  passed  without  notice.     It  may  be 
safely  said  that  tl»c  character  of  the  judges,  and  the  circumstances 
under  which  the  questions  in  McXaghten's  Cuse^  were  propounded  to 
tliem  by  the  House  of  Lords,  make  it  morally  certain  that  if,  in  the 
nature  of  things,  clear,  categorical  and  consistent  answers  were  possi- 
ble, such  answers  would  have  been  given.     In  other  words,  that  if  a  safe, 
practical,  legal  test  exists,  it  would  have  been  found  by  those  very 
learned  men,  and  declared  to  the  world.     Such  a  result  would  have 
brought  order  out  of  chaos,  and  saved  future  generations  of  lawyers 
and  judges  a  vast  amount  of  trouble  in  trying  this  kind  of  cases.     But 
an  examination  of  the  answers  given  shows  that  they  failed  utterly  to 
do  any  such  thing ;  ami  it  is  not  too  much  to  say  that,  if  they  did  not 
make  the  path  to  be  pursued  absolutely  more  uncertain  and  more  dark, 
tlioy  at  best  shed  but  little  light  upon  its  windings,  and  furnish  no  plain 
or  safe  clue  to  the  labyrinth. 

In  answer  to  the  first  question,  all  the  judges,  except  Maule,  say  that 
"  notwithstanding  the  party  accused  did  the  act  complained  of  with  a 
view,  under  the  influences  of  insane  delusion,  of  redressing  or  reveng- 
ing some  supposed  grievance  or  injurj',  or  of  producing  some  public 
benefit,  he  is,  nevertheless,  punishable,  according  to  the  nature  of  the 


&  Kir.  129. 


'  See  Xol.e  to  Ueg.  v.  Uigguiojii,  1  tar.  &  Kir.  130. 


I 


70 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Jones. 


crime  commiited,  if  lie  knew,  at  the  time  of  committing  sudi  crime  that 
he  was  acting  contrary  to  law,  by  which  is  meant  tlie  law  of  the  land." 
Here  is  an  entirely  new  clement  —  knowledge  that  he  was  acting  contrary 
t(»  the  law  of  the  land  ;  and  hereupon  the  inquiry  arises:  Is  a  man  act- 
ing under  a  delusion  of  this  sort,  presumed  to  know  the  law  of  the  land? 
The  answer  must  be,  yes  ;  for  the  judges  say,  further  on :  "  The  law  is 
iidniinistered  upon  the  principle  that  even/  one  must  be  taken  conclu- 
sively to  know  the  law  of  the  land,  without  proof  that  he  does  know  it." 

Let  this  proposition  be  examined  a  moment.  Knowledge  that  the  act 
was  contrary  to  the  law  of  the  land  is  liere  given  as  a  test ;  ^hat  is,  such 
knowledge  is  assumed  to  be  the  measure  of  mental  capacity  sufficient  to 
entertain  a  criminal  intent.  By  what  possible  means,  it  may  be  asked, 
can  that  test  or  measure  be  applied,  without  first  finding  out  whether 
the  prisoner,  in  fact,  knew  w^liat  the  law  of  thf  land  was?  How  could 
a  jury  say  whether  a  man  knew,  or  did  not  know,  that  an  act  was  con- 
trai-y  to  the  law  of  the  land,  without  first  ascertaining  whether  he  knew 
what  that  law  was  ? 

It  was  like  sa^'ing  that  knowledge  of  some  fact  in  science  —  as  for 
example,  that  a  certain  quantity  of  arsenic  taken  into  the  stomach  will 
produce  death  —  shall  be  the  test,  and  at  the  same  time  saying  that  It 
makes  no  difference  whether  the  i)risoner  ever  heard  of  arsenic,  or 
knows  anything  of  its  properties  or  not.  Knowledge  that  the  act  is  con- 
trary to  law  might  be  taken  as  a  measure  of  capacity  to  commit  crime, 
and  so  might  knowledge  O'  any  other  specific  thing  that  should  be 
settled  upon  for  that  purpose ;  and  such  a  test  would  be  consistent  and 
comprehensible,  whether  it  were  right  or  not ;  but  when  it  is  said  that 
knowledge  of  a  certain  thing  is  the  test,  and  then  we  are  told  in  the 
next  paragraph  that  it  makes  no  difference  whether  the  man  ever  heard 
of  the  thing  or  not,  I  confess  that  I  am  not  able  to  see  any  opening  for 
escape  out  of  the  maze  into  which  we  are  led.  Whether  a  jury  would 
be  more  successful,  must  depend,  I  suppose,  on  their  comparative 
intelligence. 

In  connection  with  this  rule,  it  is  useful  to  bear  in  mind  that  Iladjield 
knew  he  was  doing  an  illegal  act,  and  did  it  for  the  avowed  purpose  of 
])ringing  upon  himself  the  punishment  which  he  knew  was  the  legal  con- 
sequence of  the  act. 

INIaule,  J.,  holds  that  the  general  test  of  capacit}'  to  know  right  from 
wrong,  in  the  abstract,  is  to  be  appllod  in  the  case  supposed  by  the  first 
question,  the  same  as  in  any  other  phase  of  mental  unsoundness. 

In  answer  to  the  second  and  third  questions,  which  r(>latc  to  tlio  terms 
in  which  the  matter  should  be  left  to  the  jury,  the  judges  say,  that  ''  to 


I 


erimo  that 
the  land." 
ig  contrary 
a  man  act- 
f  the  land? 
The  law  is 
len  conclu- 
;  know  it." 
hat  the  act 
lat  is,  such 
;ufncient  to 
J  be  asked, 
lit  whethei- 
How  could 
ct  was  con- 
itr  he  knew 

3e  —  as  for 
tomach  will 
ying  that  it 
arsenic,  or 
act  is  con- 
mit  crime, 
should  be 
sistent  and 
said  that 
told  in  the 
over  heard 
pening  for 
^iury  would 
mparativo 

It  Iladfiehl 
[purpose  of 
legal  con- 

Iright  from 
jy  the  Tu-st 
Hess. 

I  tho  terms 
that  "  to 


M   NAUIITKN  S    CASE. 


71 


The  ^Uiswers  of  the  Judges. 


ostahlish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly  proved 
that,  at  the  time  of  committing  the  act,  the  party  accused  was  laboring 
under  such  a  defect  of  reason  from  disease  of  the  mind  as  not  to  know 
the  nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did  know  it, 
he  did  not  know  he  was  doing  what  was  wrong." 

Suppose,  now,  an  insane  man  does  an  act  which  he  knows  to  be  con- 
trary to  law  because,  from  an  insane  delusion  (if  that  term  am<;unts  to 
anything  more  than  the  single  term  insanity'),  he  believes  it  to  be  rigiit, 
notwithstanding  the  law ;  that  the  law  is  wrong,  or  that  the  peculiar  cir- 
cumstances of  the  case  make  it  right  for  him  to  disregard  it  in  this 
instance  ;  hosv  are  these  two  rules  to  be  reconciled?  It  would  seem  to 
be  plain  that  they  are  in  hopeless  conflict,  and  cannot  both  stand, 

Mal'le,  J.,  says:  "  The  questions  necessarily  to  be  submitti'd  to 'the 
jury  are  those  questions  of  fact  which  are  raised  on  the  record.  In  a 
criminal  trial  the  question  commonly  is,  whether  the  accused  be  guilty 
or  not  guilty  ;  but  in  order  to  assist  the  jury  in  coming  to  a  right  con- 
elusion  o'l  this  necessary  and  ultimate  question,  it  is  usual  and  proper 
to  submit  such  subordinate  or  intermediate  questions  as  the  course 
which  the  trial  has  taken  may  have  made  convenient  to  direct  their 
attention  to.  What  these  questions  are,  and  the  manner  of  submitting 
them,  is  matter  of  discretion  for  the  judge,  a  discretion  to  be  guided 
hy  a  consideration  of  all  the  circumstances  attending  the  inquiry.  In 
performing  this  duty  it  is  sometimes  necessary  or  convenient  to  inform 
the  jury  as  to  the  law,"  which,  he  repeats,  is  knowledge  of  right  and 
rrong.  lie  also  says  there  are  no  terms  which  the  judge  is,  by  law, 
required  to  use,  on.^  they  must  not  be  inconsistent  with  the  law  that 
knowledge  of  right  and  wrong  is  the  test. 

The  answer  to  the  fourth  question  introduces  a  doctrine  which  seems 
to  me  very  remarkable,  to  say  the  least.  The  question  was:  "  If  a 
person,  under  an  insane  delusion  as  to  existing  facts,  commits  an 
offence,  js  he  thereby  excused?  "  To  which  the  answer  was  as  follows : 
"  On  the  assumption  that  he  labors  under  partial  delusion  only,  and  is 
'lot  in  other  respects  insane,  he  must  be  considered  in  the  same  situa- 
tion, as  to  I'esponsibility,  as  if  the  facts  with  respect  to  which  the  delu 
sion  exists  were  real.  For  example :  If,  under  the  influence  of  delusion,, 
he  supposes  another  man  to  be  in  the  act  of  attempting  to  take  away 
his  life,  and  he  kills  that  man,  as  he  supposes,  in  self-defence,  he  would 
be  exempt  from  punishment.  If  his  delusion  was  that  the  deceaseil 
liad  inflicted  a  serious  injury  to  his  ciiaracter  or  fortune,  and  he  killed 
him  in  revenge  for  such  supposed  injury,  he  would  be  liable  to  punish- 
ment." 


72 


THE   LEGAL   TEST   OF    INSANITY 


Stiito  V.  Jones. 


The  doctrine  tlms  promulgated  as  law  has  found  its  way  into  text 
books,  and  has,  doubtless,  been  largely  received  as  the  enunciation  of  a 
s  jund  legal  principle  since  that  day.  Yet  it  is  probable  that  no  ingenu- 
ous student  of  the  law  ever  read  it  for  the  first  time  without  being 
shocked  b}'  its  ex(iuisite  inhumanity.  It,  practically,  holds  a  man,  con- 
fessed to  be  insane,  accountable  for  the  exercise  of  the  same  reason, 
judgment,  and  controlling  mental  power  that  is  required  of  a  man  in 
perfect  mental  healtli.  It  is,  in  effect,  saying  to  the  jury,  the  prisoner 
vyas  mad  when  he  committed  the  act,  but  he  did  not  use  sufficient  reason 
in  ills  madness.  He  killed  a  man  because,  under  an  insane  delusion,  he 
falsely  believed  the  man  had  done  him  a  great  wrong,  which  was  giving 
rein  to  a  motive  of  revenge,  and  the  act  is  murder.  If  he  had  killed  a 
man  only  because,  under  an  insane  delusion,  he  falsely  believed  the 
man  would  kill  him  if  he  did  not  do  so,  that  would  have  been  giving 
rein  to  an  instinct  of  self-preservation,  and  would  not  be  crime.  It  is 
true,  in  words,  the  judges  attempt  to  guard  against  a  consequence  so 
shocking  as  that  a  man  may  be  punished  for  an  act  which  is  purely  the 
offspring  and  product  of  insanity,  by  introducing  the  qualifying  phrase,- 
"  and  is  not  in  other  respects  insane."  That  is,  if  insanity  produces 
the  false  belief,  which  is  the  prime  cause  of  the  act,  but  goes  no  further, 
then  the  accused  is  to  be  judged  according  to  the  character  of  motives 
which  are  presumed  to  spring  up  out  of  that  part  of  the  mind  which  has 
not  been  reached  or  affected  by  the  delusion  or  disease.  This  is  very 
refined.  It  may  be  that  mental  disease  sometimes  takes  a  shape  to  meet 
the  provisions  of  this  ingenious  formula ;  or.  if  no  such  case  has  ever  yet 
existed,  it  is,  doubtless,  within  the  scope  of  omnipotent  power  hereafter 
to  strike  with  disease  some  human  mind  in  such  peculiar  manner  that  the 
conditions  will  be  fulfilled;  and  when  that  is  done,  when  it  is  certainly 
known  that  such  a  case  has  arisen,  the  rule  may  be  applied  without  pun- 
ishing a  man  for  disease.  That  is,  when  we  can  certainly  know  that, 
although  the  false  belief  on  which  the  t)risoner  acted  was  the  product 
of  mental  disease,  still,  that  the  mind  was  in  no  other  way  impaired  or 
affected,  and  that  the  motive  to  tiie  act  did  certainly  take  its  rise  in 
some  portion  of  the  mind  that  was  yd  in  perfect  health,  the  rule  may 
be  applied  without  any  apparent  wrong ;  but  it  is  a  rule  which  can  be 
safely  applied  in  practice  that  we  are  seeking,  and  to  say  that  an  act 
which  grows  wholly  out  of  an  insane  belief  that  some  great  wrong  has 
been  inflicted,  is  at  the  same  time  produced  by  a  spirit  of  revenge 
springing  from  some  portion  or  corner  of  the  mind  that  has  not  been 
reached  by  the  disease,  is  laying  down  a  pathological  and  psychologicMl 
fact  which  no  human  intelligence  can  ever  know  to  be  true,  and  which, 


THE    ENGLISH    CASES    CUITICISED. 


73 


The  Ainoricau  Cases  Keviewutl. 


'  into  text 
iation  of  a 
no  ingenu- 
liout  being 
man,  con- 
ne  reason, 
I  a  man  in 
le  prisoner 
ent  reason 
elusion,  he 
vas  giving 
ad  killed  a 
Sieved  the 
3en  giving 
ime.     It  is 
equence  so 
purely  the 
ng  phrase,- 
y  produces 
lo  further, 
)f  motives 
wliich  has 
lis  is  very 
)e  to  meet 
s  ever  3'et 
hereafter 
r  that  the 
certainly 
hout  pun- 
now  that, 
product 
ipaired  or 
ts   rise  in 
rule  may 
Ich  can  be 
liat  an  act 
rrong  has 
revenge 
not  been 
IhologicijI 
d  which. 


if  it  were  true,  would  not  be  law,  but  pure  matter  of  fact.  No  such 
distinction  ever  can,  or  will,  be  drawn  in  practice;  and  the  absurdity, 
as  well  as  inhumanity,  of  the  rule  seems  to  me  suthciently  apparent 
without  further  comment. 

To  form  a  correct  estimate  of  the  value  of  these  answers,  we  have 
only  to  suppose  that,  at  the  end  of  a  criminal  trial,  where  the  defence 
is  insanity,  they  be  read  to  the  jur^'  for  their  guidance  in  determining 
the  question  with  which  thtsy  are  charged.  Tried  by  this  practical  test, 
it  seems  to  mo  tiiey  utterly  fail ;  and  the  reason  of  the  failure,  as  I 
think,  is,  that  it  was  an  attempt  to  lay  down  as  law  that  which,  from 
its  very  nature,  is  essentially  matter  of  fact.  It  is  a  question  of  fact 
whether  any  universal  test  exists,  and  it  is  also  a  question  of  fact  what 
the  test  is,  if  any  there  be. 

The  efforts  of  text  writers  to  extract  a  rule  from  the  cases  have  not, 
in  my  judgment,  been  more  successful.'  It  is  worthy  of  notice,  how- 
ever, that  Mr.  Chitty  la3's  down  a  rule  from  which  is  excluded  all 
reference  to  knowledge  of  right  or  wrong  or  moral  good  and  evil,  thus : 
'•  When  there  is  only  such  partial  derangement  as  leaves  the  party  free 
to  act  or  to  forbear  in  tlie  particular  ca.se  in  question,  or  where  he  is 
guilty  of  the  crime  during  a  lucid  interval,  he  will  be  equally  liable  to 
punishment  with  those  wlio  are  perfectly  sane.  Where,  however,  the 
mind  labors  under  such  a  delusion  that  though  it  discerns  some  objects 
clearly,  it  is  totally  deranged  as  to  the  objects  of  its  attacks,  the  party 
will  be  entitled  to  be  acquitted.  "^  To  my  mind  this  is  but  another  form 
of  saying  that  where  the  act  is  the  product  of  mental  disease  it  is  no 
crime,  which  was  the  instruction  given  in  this  case. 

If  we  leave  the  English  rule,  where  it  seems  to  be  left  by  these  author- 
ities, I  think  an  examination  of  the  American  cases  will  not  lead  to  any 
more  satisfactory  result. 

In  Commomvealth  v.  Rofjers.-^  Shaw,  C.  J.  instructed  the  jury  that 
'■  a  person  is  not  responsil)le  for  any  criminal  act  he  may  commit,  if, 
by  reason  of  mental  inlirmity,  he  is  incapable  of  distii\guishing  between 
right  and  wrong  in  regard  to  the  particular  act,  and  of  knowing  that 
the  act  itself  will  subject  him  to  punishment;  or  has  no  will,  no  con- 
science or  controlling  mental  power ;  or  has  not  sufficient  power  of 
memory  to  recollect  the  relations  in  wliich  he  stands  to  others,  and  in 
which  they  stand  to  him :  or  has  his  reason,  conscience  and  judgment 
so  overwhelmed  by  the  violence  of  disease  as  to  act  from  an  uncontrol- 
able  impulse." 


>  See  1  Russ.  Cr.  13;  Uoscoe's  Cr.  Ev.  944. 
•  IChitty's  Cr.  Law,  723. 


>  7  Mete.  BOO  (1344). 


J- 

I 


T 


74 


THE   LEGAL   TEST    OF   INSANITY. 


State  V.  JoiU's. 


Here  seem  to  be  four  distinct  tests.  Tlie  first  is  substantially  that 
given  by  Loi-d  Dknman'  in  Jif^rf.  v.  Oxford,  l)ut  witlx  one  most  impor- 
tant qualilicatif^n  added,  namely,  knowledge  that  the  act  will  subject 
liim  to  punishment.  But  how  can  it  be  said  that  such  knowledge  con- 
stitutes one  of  tiie  links  in  a  chain  of  conclusive  evidence,  that  it  is  one 
fact  in  a  chain  of  facts  from  which  that  degree  of  insanity  which  will 
excuse  a  person  from  crime  is  to  be  conclusively  found? 

If  that  be  so,  thi'n  certainly  a  legal  quality,  effect,  or  signifigance  is 
given  to  it  by  its  position  in  the  chain,  which  no  one  would  ever  think 
it  possessed  wlicn  standing  alone.  The  desire  for  revenge  may  be  so 
strong  as  to  outweigh  the  fi'ar  of  a  punishment  which  a  man  without 
any  mental  disease  knows  must  follow  his  act.  But  the  rule  is,  that, 
in  addition  to  the  knowledge  of  right  and  wrong  in  respect  to  the  parti- 
cular act,  the  accused  must  have  been  capable  of  knowing  that  the  act 
itself  would  subject  him  to  punishment.  It  is,  doubtless,  true  that 
ability  to  know  that  a  certain  act  will  be  followed  by  punishment, 
furnishes  evidence  of  the  mental  condition.  So  would  knowledge  of  any 
other  fact  in  law  or  science.  But  I  can  see  no  more  reason  for  holding 
that  such  knowledge  is  any  part  of  a  legal  test  of  capacity  to  commit 
Clime,  than  for  holding  that  knowledge  of  the  cause  of  an  eclipse  is 
entitled  to  the  same  effect. 

The  second  rule  relates  to  a  case  where  there  can  be  no  doubt,  where 
the  will,  the  conscience  and  the  controlling  mental  powei'  are  all  gone  ; 
and  the  Anirth  is  substantially  the  same,  where  the  reason,  conscience 
and  judgment  are  so  overwhelmeil  by  the  violence  of  disease,  that  he 
acts  from  uncontrollable  imi);ilse.  There  can  be  no  very  appreciable 
legal  distinction  between  a  pv 'r.-.on  who  has  no  will,  no  conscience,  oi' 
controlling  mental  power,  and  one  whose  reason,  conscience,  and  judg- 
ment are  so  overwiielmed  by  the  violence  of  disease  as  to  act  from  an 
uncontrollable  impulse.  In  both  cases  it  is  an  act  in  which  reason, 
conscience,  judgment  and  will  do  not  participate ;  in  a  word,  it  is  the 
product  of  mental  disease. 

Power  of  memory  sullicient  to  recollect  the  relations  in  which  he 
stands  to  others  and  in  which  others  stand  to  him,  which  is  given  as  t.ie 
third  test,  seems  to  me  ao  more  a  legal  criterion  than  power  of  memory  to 
recollect  any  other  fact  which  a  healthy  mind  would  be  expected  to 
remember ;  and  such  power  of  memory  or  its  lack  would  be  a  fact,  like 
other  facts,  for  the  jury  to  weigh  in  judging  whether  he  had  the  mental 
capacity  to  entertain  a  criminal  intent. 

There  is  no  doul»t  but  these  instructions  of  the  learned  ...d  eminent 
chief  justice  of  Massachusetts  have  been  largely  followed  in  cases  since 


I 


TKM"    <»F    INSANITY 


ii) 


Tlio  American  Cases  Ki'vicwi-d. 


;ially  that 
ist  iinpor- 
iU  subject 
i?dge  con- 
,t  it  is  one 
vhich  Avill 

figant'C  is 
iver  tliink 
iiay  be  so 
n  without 
e  is,  that, 
the  parli- 
at  the  act 

true  that 
nishraent, 
dge  of  any 
or  holding 
to  commit 

eclipse  is 

ibt,  where 
all  gone  ; 
onscience 
that  he 
reliable 
cience,  or 
and  judg- 
frora  an 
I  reason, 
it  is  the 

[which  ha 
len  as  t.ie 
^emory  to 
jected  to 
it,  like 
le  mental 

eminent 
Ises  since 


tricMl  in  tliis  country  ;  but  the  course  has  been  by  no  means  uniform,  as 
we  sliiill  see. 

Ill  New  York  and  Pennsylvania  in  the  two  leading  cases  of  Freeman 
V.  People,^  and  Commoaicealth  v.  Monler,-  capacity  to  distinguish  rigiit 
from  wrong  was  given  as  the  naked  test.  But  in  neither  of  tliose  Stales 
has  the  rule  thus  laid  down  been  followed  with  uniformity.  In  the  trial 
of  Huntington  for  forgery,  in  New  York  City,  in  18,'»n,  Judge  C.vi-uon 
said  to  tlie  jury:  "To  constitute  a  complete  defence,  insanity,  if  par- 
tial, as  monomania,  must  be  such  in  degree  as  to  wliolly  deprive  the 
accused  of  the  guide  of  reason  in  Tpgard  to  the  act  with  tvh'rh  he  is 
•  harfjed,  and  of  the  knowledge  that  he  is  doing  wrong  in  committing 
it."  And  the  remarks  of  Eoaionds,  J.,  in  the  earlier  case  of  The  People 
V.  lUeim^^  are  wholly  at  war  with  any  such  rule  as  that  promulgated  in 
Freeman  y.  People.  Ilesaj's:  "  The  moral  as  well  as  tiie  intellectual 
faculties  may  be  so  .i.^ordered  by  the  disease  as  to  deprive  the  mind  of 
its  controlling  and  directing  power ;  that  he  must  know  the  act  to  l)e 
wrong  and  punishable,  and  be  able  to  compare  and  choose  between 
doing  it  and  not  doing  it." 

In  Pennsylvania,  in  Commonwealth  v.  KnepJeji  (1850),  knowledge  of 
right  and  wrong  in  regard  to  the  particular  act  was  given  as  the  test; 
:uiil  in  Commonwealth  v.  Ha>^-keU,  the  judge  charged  that  "the  true  test 
lios  in  the  word  j)ower.  Has  the  defendant,  in  a  criminal  case,  the 
power  to  distinguish  right  from  wrong,  and  the  power  to  adhere  to  the 
right  and  avoid  the  wrong?  " 

It  would  pi'obably  not  be  far  out  of  the  way  to  say  that  the  number 
of  American  cases  where  knowledge  of  right  and  wrong  in  the  abstract, 
and  knowledge  of  the  nature  and  quality  of  the  act  —  that  it  was  wrong  — 
iiave  been  given  as  the  test,  is  about  equal,  with  a  tendency  of  lute 
years  to  tlie  latter  form  ;  while  it  will  appear  that,  in  almost  every  case 
wliore  any  rule  has  been  given  on  tlie  subject,  it  has  been  modified  and 
explained  to  meet  the  facts  of  the  particular  case,  or  to  carry  out  the 
personal  views  of  the  judge  on  the  matter  of  insanity.  But  there  are 
not  wanting  cases  where  all  tests  have  been  discarded.  In  State  v.  Felter.,^ 
Dn.LON,  C.  J.,  says:  "The  jury,  in  substance,  should  be  told  that  if 
tlie  defendant's  act  in  taking  the  life  of  his  wife  was  caused  by  nuiital 
(hscase  or  unsoundness,  wliich  dethroned  liis  reason  and  judgment  with 
respect  to  that  act,  which  destro^'ed  his  power  rationally  to  comprehend 
the  nature  and  consequences  of  that  act,  and  which,  overpowering  his 
will,  irresistibly  forced  him  to  its  commission,  then  he  is  not  amenable 


f 


'  4  Denio,  "J. 
5  4  narr.  267. 


»  1  Edm.  Sel.  Cas.  13. 
*  25  Iowa,  67. 


7(3 


THE    LKOAL    TKST   OF    INSANITV. 


State  V.  Jones. 


to  legal  punishment.  But  if  the  jury  believed,  from  all  the  evidence 
and  circumstances,  that  the  defendant  was  in  possession  of  a  rational 
intellect  and  sound  mind,  and  allowed  his  passion  to  escape  control, 
then,  though  passion,  may  for  the  time  being,  have  driven  reason  from 
her  seat  and  usurped  it,  and  have  urged  the  defendant,  with  a  force  at 
the  moment  irresistible,  to  desperate  acts,  he  cannot  claim  for  such  acts 
the  protection  of  insanity."  And  in  Stercns  v.  Sfate  of  Indiana ^^ 
which  was  an  indictment  for  murder,  and  the  defence  insanity,  an 
instruction  to  the  jury  that,  if  they  believed  the  defendant  knew  the 
difference  between  riglit  and  wrong  in  respect  to  the  act  in  question,  if 
he  was  conscious  that  such  act  was  one  wliich  lie  ouglit  not  to  do,  he  was 
responsible,  was  held  erronous.  In  the  course  of  his  opinion  in  that 
case,  GiiKGOKY,  J.,  speaking  of  the  cliarge  in  Commonwealth  v.  Rogers^ 
said:  "It  is  by  no  means  clear,  and  we  think  it  is  not  entitled  to  the 
weight  usually  awarded  it." 

Very  much  to  tlie  same  effect  was  State  v.  Spencer.^  Hornblower, 
C.  J.,  said:  "  In  my  judgment,  the  true  question  to  be  put  to  the  jury 
is,  whether  the  prisoner  was  insane  at  the  time  of  committing  tlie  act ; 
and  in  answer  to  that  question  there  is  little  danger  of  a  jury's  giving 
a  negative  answer,  and  convicting  a  prisoner  who  is  proved  to  be  insane 
on  the  subject-matter  relating  to  or  connected  with  the  criminal  act,  or 
proved  to  be  so  far  or  so  generally  deranged  as  to  render  it  difficult  or 
almost  impossil)le  to  discriminate  between  his  sane  and  insane  acts." 
And  also  a  case  said  to  have  been  tried  in  York  County,  Maine,  in  1G3C, 
where  the  court  charged  the  jury  that  if  they  were  satisfied  the  prisoner 
was  not  of  a  sound  memory  and  discretion  at  the  time  of  committinsi 
the  act,  they  were  bound  to  return  a  verdict  of  acquittal.*^  To  the  same 
effect  also  is  our  own  cases  of  Prescott  and  Corey,  referred  to  by  the 
attorney-general  in  his  brief. 

Professor  Greenleaf  adopts  the  charge  of  Chief  Justice  Shaw,  in 
Roger's  Case,  witliout  any  attem[)t  at  modification  or  explanation,  as 
covering  the  whole  subject,  so  far  as  criminal  responsil)llity  is  con- 
cerned.'* Mr.  Bishop  undertakes  to  give  the  forms  in  which  courts  liave 
put  the  question  of  insanity  to  the  jury  in  most  of  the  modern  cases."' 
But  I  have  not  been  able  to  find  a  case,  ancient  or  modern,  where  tlie 
judge  did  actually  give  the  question  of  insanity  to  the  jury  in  just  tlie 
terms  of  Mr.  Bishop's  form ;  and  he  saj's,  speaking  of  his  rule :   "  This 


>  31  Ind.  485. 
»  1  Z*br.  196. 
*  Ray.  tied.  Jur.  MS.,  sect.  42. 


*  2  Greenl.  on  Ev.,  sect.  3Ti 
^  1  Bish.  Cr.  Law,  475. 


MH.    HISIIOP  S    KULE. 


77 


The  Difficulty  of  the  Subject. 


le  evidence 
f  a  rational 
ipe  control, 
•eason  from 
1  a  force  at 
)r  such  acts 

nsanit}',  an 
it  knew  the 
question,  if 

0  do,  lie  was 
lion  in  that 

1  V.  Rogers, 
itled  to  the 

ORNBLOWER, 

;  to  the  jury 

ing  the  act ; 

uiy's  giving 

to  be  insane 

ainal  act,  or 

difficult  or 

isane  acts." 

ne, in  1G3G, 

;he  prisoner 

committing 

o  the  same 

to  by  the 

SiiAW,  in 

lanation,  as 

jity  is  con- 

3ourts  have 

lern  cases,  •'i 

where  the 

|in  just  the 

lie:   "This 


form  of  stating  the  question  of  insanity  to  the  jury  is  well  in  cases 
where  it  is  admitted  that  the  mental  disease  or  imperfection  extends 
only  to  the  intellectual  powers,  and  the  party  has  full  control  of  his 
actions.  How  numerous,  comparatively,  these  cases  are  is  matter  of 
science  and  fact  nowhere  to  be  discussed."  ' 

In  regard  to  the  difficulties  of  the  subject,  the  same  author  says : 
"The labors  of  writers  on  insanity  have  been  exhausted  in  attempts  to 
find  some  test  of  ready  application  to  determine  when  a  person  is  to  be 
deemed  insane,  and  when  not,  in  reference  to  his  responsibility  for 
crime.  And  judges,  less  informed  on  this  subject  than  on  most  other 
subjects  of  legal  science,  have  struggled  under  the  inherent  embarrass- 
ments of  the  question  itself,  under  the  influence  of  erroneous  notions  in 
the  community,  and  under  the  failures  of  counsel  and  witnesses  in  par- 
ticular cases  to  present  the  real  points  of  inquiry.  The  result  has  been, 
that  instructions  given  in  reference  to  particular  facts  appearing  in  the 
oases  before  them  have  seemed,  to  casual  observers,  to  be  very  discord- 
ant, while  to  scientific  inquirers  after  the  facts  of  insanity,  they  have 
seemed  very  absurd  " '^  And  in  a  note,  "It  seems  to  me  there  has 
been  too  much  attempt  to  do  what  in  its  nature  is  impossible,  and  too 
little  attempt  to  do  what,  is  possible  regarding  the  matter.  It  is 
not,  I  submit,  possible,  in  the  nature  of  things,  that  the  court  should 
find  an  exact  and  literal  rule,  which  may  be  put  into  the  hand  of  a  juiy- 
inan,  wherewith  to  measure  the  mind,  and  determine  whether  it  is 
criminally  responsible  or  not,  for  its  act." 

It  is  to  be  remarked  that  the  same  tiling,  in  substance,  was  admitted  lij'^ 
the  judges  in  McXaghtea's  Case,  Tindal,  C.  J.,  giving  the  opinion  of 
the  majorit}',  said:  "We  have  foreborne  entering  into  any  particular 
discussions  upon  the  questions,  from  the  extreme  difficulty  of  applying 
those  answers  to  cases  in  which  the  facts  are  not  brought  judicially-  be- 
fore us.  The  facts  of  each  particular  case  must,  of  necessity,  present 
themselves  with  endless  variety  and  with  every  shade  of  difference  in 
each  case ;  and  we  deem  it  at  once  impracticable,  and  dangerous  if  it 
were  practicable,  to  attempt  to  make  minute  a[)plications  of  the  princi- 
l)les  involved  in  the  answers  to  your  lordships'  questions."  Maulk,  J., 
speaking  for  himself,  observed:  "  I  feel  great  difficulty  in  answering 
llie  questions  put  by  your  lordships  on  this  occasion.  First,  because 
they  do  not  appear  to  rise  out  of,  and  are  not  put  in  reference  to  a  par- 
ticular case,  or  for  a  particular  purpose,  which  might  explain  or  limit 
the  generality  of  their  terms,  so  that  full  answers  to  them  ought  to  be 


1  Ilish.  t'r.  Law,  sect.  478. 


1  Bish.   Cr.   Law,    tect.  474. 


78 


THE   LEGAL   TEST   OF    INSANITY 


State  V.  Jouus. 


applicable  to  every  possible  state  of  facts  not  inconsistent  witli  those 
assumi'tl  in  the  questions." 

It  is  entirely  obvious  that  a  court  of  law  luulertaking  to  lay  down  an 
abstract  general  proposition,  which  may  be  given  to  tlie  jury  in  all 
cases,  by  which  the}-  are  to  determine  whether  the  prisoner  had  capac- 
ity to  entertain  a  criminal  intent,  stands  in  exactly  the  same  position  as 
that  occupied  by  the  English  judges  in  attempting  to  answer  tho  ques- 
tions propounded  to  them  by  the  House  of  Lords  in  this  case;  and 
whenever  such  an  attempt  is  made,  I  thinlc  it  must  always  be  attended 
with  failure,  because  it  is  an  attempt  to  find  what  does  not  exist,  namely, 
a  rule  of  law  wherewith  to  solve  a  question  of  fact. 

This  is  the  only  conclusion  I  desire  to  draw  from  the  cases  and  text- 
writers  referred  to.  It  is  clear  to  me  that  judges  have  adapted  their  lan- 
guage to  tlie  facts  of  the  particular  case  before  them,  and  that  when 
anything  is  said  about  knowledge  of  right  and  wrong,  or  knowledge  of 
the  quality  of  the  act,  or  any  other  legal  test,  it  has  been,  and  will  in- 
evitably continue  to  be,  qualified  and  explained  in  such  a  way,  to  meet 
the  evidence  upon  which  the  jury  are  to  pass,  that  its  character,  as  a 
rule,  entirely  disappears. 

No  one  but  tlie  Creator  of  all  things  can  look  in  upon  the  chaos  of  a 
disordered  mind,  and  determine  with  certainty  whether  its  powers  are  so 
much  prostrated,  enfeebled,  or  deranged,  that  the  unhappy  sufferer  has 
ceased  to  be  an  accountable  being.  Still,  the  court  and  jury  must  de- 
termine that  question,  approximately,  as  best  tliey  can  in  each  individual 
case  ;  and  it  makes  no  difference ,,so  far  as  I  can  see,  with  the  difficulty 
of  the  subject,  whether  Lord  Buoicjiiam's  view,  that  a  distinction  is  to 
be  made  between  the  moral  accountability  of  a  man  to  his  Maker,  and 
his  accountability  to  human  tribunals,  be  accepted  or  not.  With  this 
duty  to  perform,  and  this  responsibility  upon  them,  courts  naturally 
and  properly  turn  to  men  of  science,  such  as  have  had  large  experience 
in  the  care  and  treatment  of  the  insane,  for  aid;  and  the  questions 
allowed  to  be  put  to  experts  and  answered  by  them,  both  in  England 
and  this  country,  show,  that  what  is  laid  down  as  kao  in  theory,  is  al- 
most universally  treated  as  fact  in  practice. 

At  the  trial  where  insanity  is  set  up  as  a  defence,  two  questions  are 
presented:  First.  Had  the  prisoner  a  mental  disease?  S<'co))d.  If  ho 
had,  was  the  disease  of  such  a  character,  or  was  it  so  far  tleveloped,  or 
had  it  so  far  subjugated  the  power  of  the  mind,  as  to  take  away  the 
capacity  to  form  or  entertain  a  criminal  intent?  Tlie  first  is  so  purely 
a  question  of  fact,  that  no  one  would  think  of  disputing  it  any  sooner 
than  he  would  dispute  that  it  was  a  auestion  of  fact,  whether  a  man  has 


A    LEGAL   TFST   COWKXIKNT. 


79 


But  not  FoniuU'd  on  Ki'tison. 


nth  those 

'  down  an 
iry  in  all 
lacl  capac- 
ositlon  as 
tho  ques- 
;asc ;  and 
attended 
b,  namely, 

and  text- 
tlieir  lan- 
Iiat  when 
wledge  of 
id  will  in- 
^  to  meet 
iter,  us  a 

laos  of  a 
ers  are  so 
fferer  has 
must  de- 
idividual 
ifficulty 
ion  is  to 
ver,  and 
Vith  this 
at  11  rally 
lerience 
•lestions 
England 
y,  is  al- 
iens are 
d.  If  he 
oped,  or 
way  the 
0  purely 
V  sooner 
man  has 


consumption  or  not.  It  is  in  settling  the  second  that  all  the  difficulty 
arises. 

The  instructions  asked  for  in  this  case  go  upon  the  ground  that  this  is 
a  mixed  question  of  law  and  fact;  that  where  there  is  delusion,  there 
can  be  no  criminal  intent;  and  that  where  there  is  capacity  to  know 
right  from  wrong  in  reference  to  the  particular  act,  there  is  capacity  to 
commit  crime.  It  is  true,  the  sixth  request  does  not  present  the  mat- 
ter in  just  this  form;  but  if  knowledge  of  right  and  wrong,  as  to  the 
act,  is  to  be  considered  a  legal  test  of  criminal  accountal)ility,  it  must 
follow  that  those  who  have  such  knowledge  are  accountable,  as  well  as 
that  those  who  have  it  not  arc  not  accountable.  And  this  court  is  now 
called  on,  as  a  court  of  law,  to  decide  whether  cither  of  these  tests  shall 
be  adopted  in  this  State,  and  if  so,  which. 

It  would  doubtless  be  convenient  to  adopt  some  such  test.  It  would, 
to  some  extent,  save  the  trouble  of  trying  each  case,  as  it  arises  on  its 
own  special  and  peculiar  facts ;  at  any  rate  it  would  narrow  the  range 
of  investigation  to  a  search  for  the  facts  constituting  the  test  adopted. 
But,  in  cases  of  this  sort,  the  argument  of  convenience  is  not  to  Jbe  ad- 
mitted. No  formal  rule  can  be  applied  in  settling  questions  which  have 
relation  to  liberty  and  life,  merely  because  it  will  lessen  the  labor  of  the 
court  or  jury.  Nor  ought  such  a  rule  to  be  adopted  upon  the  authority 
of  cases,  unless  those  cases  show,  beyond  a  doubt,  not  only  its  exi^t• 
ence,  but  that  it  is  founded  in  reason  and  fundamental  truth.  Expres- 
sions of  even  the  most  eminent  ju<lges  must  not  be  mistaken  for  the 
enunciation  of  a  universal  principle  of  law,  when  it  appears  that  they 
were  used  in  charging  the  jury  ui)on  the  facts  arising  in  a  j)articular 
case. 

Tho  instructions  given  also  imply  that  this  is  a  mixed  (luestion  of  law 
and  fact ;  that  the  onlj'-  element  of  law  which  enters  into  it  is,  that  no 
man  shall  be  held  accountable,  criminall}',  for  an  act  wliich  was  the  off- 
spring and  product  of  mental  disease.  Of  the  soundness  of  this  propo- 
sition there  can  be  no  doubt.  Thus  far  all  are  agreed  ;  and  the  doctrine 
rests  upon  principles  of  reason,  humanity  and  justice,  too  firm  and  too 
deeply  rooted  to  be  shaken  by  any  narrow  rule  that  might  be  adopted 
on  the  subject.  No  argument  is  needed  to  show  that,  to  hold  that  a 
man  may  be  punished  for  what  is  the  offspring  of  disease,  would  be  to 
hold  that  he  may  be  punished  for  disease.  Any  rule  which  makes  that 
possible,  cannot  be  law. 

It  will  hardly  be  contended,  I  suppose,  that  delusion  or  knowledge  of 
tight  and  wrong,  with  reference  to  the  act  or  an\'  other  thing,  can,  with 
any  degree  of  propriety,  be  called  a  legal  test  of  the  mental  capacity 


wm 


80 


THE   LEGAL   TEST   OF    LN8ANITY. 


State  V.  Jones. 


to  comniit  crime,  unless  that  capacity  is  deterniined  absolutely  in  all 
cases  by  tlic  presence  or  absence  of  the  fact  wljich  is  assumed  to  consti- 
tute the  test. 

If  we  speak  of  delusion,  for  instance,  before  that  can  be  adopted  as 
the  test,  in  tiie  sense  intended  by  tlie  recpiest  in  this  case,  it  must  appear 
tliat  it  makes  no  difference  wliether  the  del'  sion  has  any  reference  to,  or 
connection  with,  the  net  or  not.  If  we  say,  as  P^ijskink  said  in  Ilnd- 
fiekVs  Cane,  tiiat  delusion  is  the  test  when  it  appears  to  have  produced 
the  act,  but  not  wiien  it  does  not  apitear  to  have  produced  the  act,  that 
the  delusion  and  the  act  siiould  be  connected,  we  admit  that  delusion 
cannot  be  a  leiral  test,  because  it  is  not  a  universal  test.  And,  even  if 
it  were  established  that,  in  all  cases  where  there  is  delusion,  there  is 
not  capacity  to  commit  crime  with  as  much  certainty  as  tiiat  a  heavy 
body  left  free  in  the  air  will  fall  to  the  earth,  it  still  remains  a  fact. 
That  a  heavy  bod}'  will  fall  is  a  fact,  although  it  is  at  the  same  time  a 
law  of  nature ;  that  delusion  attends  incapacity  for  crime  would  he  a 
fact  still,  although,  were  the  fact  ascertained  to  be  certain  and  univer- 
sal, it  might  be  called  a  law  of  mental  disease,  and  migjit,  therefore,  be 
given  to  the  jury  as  a  criterion,  without  any  positive  or  practical 
wrong. 

Yet,  in  that  view,  it  would  be  the  law  of  the  land  in  no  other  sense 
than  the  laws  of  nature  and  physics  may  be  considered  laws  of  the  land. 
Now,  this  court,  sitting  for  the  decision  of  questions  of  law,  is  not  at 
liberty  to  receive  and  consider  evidence,  or  weigh  and  determine  mat- 
ters of  fact. 

But  the  very  lirst  step  in  the  inquiry  to  ascertain  if  there  be  any  test 
or  criterion  that  may  be  safely  given  to  the  jury  on  this  subject,  whether 
as  a  fact  universally  true,  or  as  a  principle  of  law,  involves  the  examin- 
ation of  an  immense  mass  of  evidence,  as  complicated  and  difficult  to 
understand  as  can  well  be  conceived.  Moreover,  it  would  requir'^  a  de- 
gree of  skill  and  scientific  attainment  which  could  only  be  reached  by 
years  of  special  study  and  intelligent  observation.  Not  only  ought  all 
the  facts  bearing  on  the  question  to  be  collected  from  every  asylum  for 
the  insane  throughout  the  world,  but,  as  an  inflexible  rule  to  be  estab- 
lished, the  facts  of  all  other  cases,  where  the  patient  has  never  received 
scientific  treatment,  ought  to  be  added  to  the  stock.  Then,  after  col- 
lecting the  facts  in  this  way,  it  would  be  necessary  to  compare  cases 
and  classes  of  cases,  one  with  the  other,  to  weigh  facts  against  facts, 
to  balance  theories  and  opinions,  and  finally,  to  deduce  a  result  which 
might,  itself,  turn  out  to  be  nothing  more  than  a  theory  or  opinion  after 
all.     At  any  rate,  it  would  be  a  deduction  of  fact. 


DR.    RAY  S    Vir.WS. 


81 


Cases  of  TL'stiiiiu'iitary  Capacity. 


cly  in  all 
Lo  consti- 

I  opted  as 
st  appear 
nee  to,  or 

in  II nd- 
|)r()diiccil 
!  act,  that 

delusion 
d,  even  if 
n,  there  is 
it  a  heavy 
jis  a  f(xct. 
me  time  a 
■ould  be  a 
lid  univer- 
■refore,  be 
•  practical 

ther  sense 
the  land, 
is  not  at 

mine  mat- 

e  any  test 

L,  whether 

e  examin- 

ifficult  to 

luif'^  a  de- 

iiched  by 

ought  all 

;ylum  for 

be  estab- 

leoeived 

iter  eol- 

lare  cases 

list  facts, 

lit  which 

ion  after 


It  need  not  be  said  that  this  is  not  the  business  of  n  couit  of  law. 
It  is  a  work  which  can  only  be  reasonably  well  done  by  men  who  devote 
their  lives  exclusively  to  its  acconii)Hshnu'nt.  Such  awoik  has  doubtless 
been  done,  with  extraordinary  ])atience  and  ability,  by  our  distinguished 
countrvnian.  Dr.  Ray ;  and  the  result  of  his  laborious  investiga- 
tion is,  that  no  test  can  be  found.  He  says:  ''To  persons  practi- 
cally acquainted  with  the  insane  mind,  it  is  well  known  that  in  every 
hospital  for  the  insane,  are  i>atients  capable  of  distinguishing  between 
right  and  wrong,  knowing  well  enough  how  to  appreciate  the  nature  and 
legal  conse(iuences  of  tlicir  acts,  acknowledging  tiie  sanctions  of  reli- 
gion, and  never  acting  from  irresistible  impulse,  but  deliberateh''  and 
shrewdly."  ' 

If  Ave  were  at  liberty  to  weigh  and  consider  eridenw  upon  the  ques- 
tion, it  is  clear  that  such  testimony  must  outweigh  all  the  convenient 
formulas  and  arbitrary  dogmas  laid  down  by  the  lawyers  and  judges 
from  the  time  of  Lord  IIai.k  to  the  present,  simply  for  the  reason  that 
Dr.  Ray  is  qualified  by  study  and  observation  to  give  an  opinion,  -while 
lawyers  and  judges  are  not.  But  we  do  not  consider  evidence  upon  this 
point  at  all.  Whether  there  is  any  universal  test  is  as  clearly  a  pure 
matter  of  fact,  as  is  the  (piestion  what  that  test  may  be. 

A  strong  argument  in  favor  of  the  instructions  given  in  this  case, 
and  of  conso(picnce  against  proceeding  further  to  give  the  specific  in- 
structions retjuestcd,  is  found,  both  upon  principle  and  authority,  in  the 
course  of  decisions  wliere  testamentary  capacity  has  been  before  the 
courts. 

In  the  well  known  leading  case  of  Dew  v.  Clarke,-  decided  in  1826, 
Sir  John  Niciioll  gave  his  opinion  thus:  "The  true  criterion,  the 
true  test,  of  the  absence  or  presence  of  insanity  I  take  to  be  the  ab- 
sence or  presence  of  what,  used  in  a  certain  sense  of  it,  is  compre- 
hended in  a  single  terra,  namely,  delusion.  Whenever  the  patient  once 
conceives  something  extravagant  to  exist,  wliich  has  still  no  existence 
but  in  his  own  heated  imagination ;  and  whenever,  at  the  same  time, 
having  once  so  conceived,  he  is  incapable  of  being,  or  at  least  of  being^ 
permanently,  reasoned  out  of  that  conception,  such  patient  is  said  to  be 
under  a  delusion,  in  a  peculiar,  half-technical  sense  of  the  term ;  and 
the  absence  or  presence  of  delusion,  so  understood,  forms,  in  my  judg- 
ment, the  true  and  only  test  or  criterion  of  absent  or  present  insanity. 
In  short,  I  look  upon  delusion,  in  this  sense  of  it,  and  insanity,  to  be 
almost,  if  not  altogether,  convertible  terms ;  so  that  a  patient,  under  a 


'  Ray'B  Med.  Jar.,  Ins.  eect,  43. 


*  8  Addami,  7S. 


89 


THE   LKUAL   TKST    OF    INSANITY. 


Stall-  V.  .Ii)iu-«. 


Uelusioii,  so  understood,  on  any  subji'ct  or  subjocts,  in  any  degree,  is, 
for  tliat  reason,  essentially  mad  or  insane  on  such  subject  or  subjects, 
in  that  degree."  After  a  very  extended  review  of  the  evidence  in  the 
case,  he  draws  this  conclusion:  "  The  will  |)ropounded  in  this  cause,  a 
will  virtually  disinheriting  the  daughter,  being  t!u'  direct,  unqualilied 
offspring  of  that  morbid  delusion  —  proved,  1  may  now  say  without  any 
qualification  or  restriction,  to  have  been  ever  present  to  the  mind  of  the 
deceased  as  to  the  character  and  conduct  of  his  daughter  —  being,  if  I 
may  so  term  it,  the  very  creature  of  that  morbid  delusion,  put  into  act 
and  energy,  — I,  at  least,  can  arrive  at  no  other  conclusion  than  that  the 
deceased  was  insane  at  the  time  of  his  nuiking  the  will  propounded  in 
this  cause;  and  consequently  that  the  will  is  ludl  and  void  in  hiw." 

In  view  of  this  explicit  avowal,  it  may  be  considered  somewhat 
remarkable  that  this  case  should  have  been  regarded  as  an  authority  for 
anything  more  than  this  —  that  delusion  is  the  test  of  testamentary 
capacity,  so  far  that  a  disposition  of  property  by  a  will,  which  is  shown 
to  have  been  the  direct,  unqualified  offspring  of  morbid  delusion  cannot 
be  upheld.  If  a  morbid  delusion  produced  the  act,  then  the  act  is  not 
valid.  But,  whether  through  a  misconception  of  this  case,  or  by  adopt- 
ing the  theory  of  S(jme  writtns,  who  maintain  that  the  mind,  though  it 
has  varied  fticulties,  is  one  and  indivisible,  so  that  if  it  be  disordered  in 
any  one  of  these  faculties,  it  cannot  be  said  to  be  sound,  though  its 
other  faculties  and  functions  remain  undisturbed,  a  doctrine  appears  to 
have  gained  some  ciirrencj'  in  liUgland  to  the  effect  that  delusion  on  any 
matter,  however  remote  from  the  subject  of  the  will,  and  however  dis- 
connected from  it,  is  conclusive  evidence  of  unsoundness  of  mind,  and, 
therefore,  altogether  destroys  testamentar\'  capacity.' 

This  idea  was  attacked  iuiil  completely  overthrown  in  the  case  of 
Banks  \.  Goo(lfeUoio,~  d.-cuhnl  i  July,  1S70.  In  that  case  it  appeared 
that  a  testator  labored  unci-  r  l,vvo  fixed  delusions:  one,  that  he  was  pur- 
sued by  spirits  ;  the  othei,  that  a  man,  long  since  dead,  came  to  molest 
him,  neither  delusion  inlluencing  or  calculated  to  infiuencc  the  particu- 
lar testamentary  disposition  made  by  liim.  Buktt,  J.,  who  tried  tlie 
case,  left  it  to  the  jury  to  say  whether,  at  the  time  of  making  the  will, 
the  testator  was  capable  of  such  knowledge  and  appreciation  of  facts, 
and  was  so  far  master  of  his  intentions  and  free  from  delusions  as 
would  enable  him  to  have  a  will  of  his  own  in  the  dispositiori  of  his 
property,  and  act  upon  it. 


'  Waring  v.  Waring,  6  Moore  P.  C.  Cas. 
:U1 ;  iinil  see  also  Smith  v.  Tebbitt,  L.  U.  1  F. 
&  D.  a98. 


«  L.  R.  5  Q.  B,  549. 


INSANITY    AM)   TKSTAMKNTAKY    CAI'Ai  ITV 


98 


('iii'kl)iii'n,  ('.  .1.,  in    llaiikH   r.  (inodl'iliiiw  , 


▼ree,  '\^, 
Libjccls, 
;e  in  llic 
cause,  a 

liout  any 
kI  of  the 
ing,  if  I 
into  act 
that  the 
unded  in 
,w." 

omewhat 
lority  for 
amentary 
is  shown 
)n  cannot 
act  is  not 
by  adopt- 
[thougli  it 
idorcd  in 
lough  its 
ipears  to 
)n  on  any 
cevor  dis- 
ind,  and, 

case  of 
!ipi)earod 
was  pur- 
to  molest 

pari  ic  11- 

Itried  tlio 

I  the  will, 

|of  facts, 

lisions  as 

of  his 


It  will  1)0  observed,  that  if  deltisinii  were  to  be  regarded  sis  si  universal 
legal  test,  tlii-re  was  no  ([uestion  here  to  be  sul)initted  to  the  jury  ;  a 
verdict  should  have  been  ordi'red  against  the  will  for  the  existence  of  de- 
lusions was  not  disputed.  Hnl  the  instructions  were  held  correct,  and 
Lord  Chief  .Iiistice  C'<»ckhii{\,  iu  the  course  of  his  elaborate  opinion, 
says:  "  Kvcrv  one  must  be  conscious  that  thi;  faculties  and  functions  of 
the  mind  are  various  and  distinct,  as  jire  the  powers  and  functions  of 
the  physical  organizations.  Tiie  instincts,  tiie  affections,  tlic  passions, 
the  mcjral  sense,  perceptions,  thougiit,  reason,  inuigination,  memory, 
arc  so  many  distinct  faculties  or  functions  of  the  mind.  The  pathology 
of  mental  disease,  and  the  experience  of  insanity  in  its  various  forms 
teach  us  that,  wliih^  on  the  one  hand  all  the  faculties,  moral  and  intel- 
lectual, may  be  involved  in  one  common  ruin,  iis  in  tlie  case  of  a  raving 
inanai(!,  one  or  more  only  of  these  faculties  or  functions  may  be  disor- 
dered, while  tiie  rest  are  left  unimpaired  and  undisturbed,  tliat  while  the 
mind  ma}'  be  overpowered  by  delusions  which  utterly  demoralize  and  unlit 
it  for  the  perception  of  the  true  nature  of  surrounding  things,  or  for  the 
discliarge  of  the  common  obligations  of  life,  there  often  are,  on  the  other 
liand,  delusions  which,  though  the  offsjiring  of  mental  disease,  leave  tin 
individual  in  all  other  respects  rational,  and  capable  of  transacting  tlie 
ordinaiy  affairs,  and  fulfilling  the  duties  and  obligations  incidental  to 
tlie  various  relations  of  life. ' ' 

The  exact  question  presented  to  the  court  in  this  case,  namely, 
whether  unsoundness,  not  operating  on  the  mind  of  the  testator  in  regard 
to  the  particular  testamentary  disposition,  will  be  sutlicient  to  deprive 
liim  of  the  power  of  disi)osing  of  his  property  by  will,  was  said  to  be  a 
now  question,  not  before  presented  for  judicial  decision  in  England. 

l)Ut  iu  Boardman  v.  iroot/wtctji,' decided  four  3-eais  earlier  in  this 
State,  the  court  below,  liAUTLKTT,  J.,  charged  the  jury  ''that  the  mere 
fact  of  the  possession  of  a  delusion  may  not  be  sullicient  to  render  a 
l»ersou  utterly  incapable  of  making  a  valid  will;  that  a  person  of  sulli- 
cient mental  capacity,  thougli  uiuU^r  a  delusion,  may  make  a  valid  will ; 
if  the  will  is  in  no  way  the  offspring  of  the  delusion,  it  is  unaffected  l)y 
it."  This  instruction  was  sustained  ;  and  I  am  unable  to  find  anything 
in  the  opinion  of  the  court  that  conflicts  with  the  doctrine  of  Biotks  v. 
(Jooilfdlow.  Saiigknt,  J.,  in  the  course  of  his  o{)iuion  says:  '•  Dclu- 
siun,  in  the  technical  sense,  as  explained  b}'  Sir  Jons  Nkhoi.i.,  is  the 
legal  test  of  the  presence  of  active  insanity  ;  and  if  the  vill  is  the  off- 
s^pring  of  this  delusion,  it  should  be  set  aside."  It  is  sutliciently  obvious 
that  neither  Sir  John  Nicholi,  nor  Judjje  Sakgknt  would  t  jld  that  a 


'  47  N.  H.  120. 


84 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Jones. 


man  avIio  labors  under  a  delusion  that  his  lej^sare  made  of  glass,  or  that 
he  is  cliarged  with  controllin<5  the  motions  of  the  planetary  system,  but 
is  in  otlier  respects  sane,  would,  therefore,  be  incapable  of  making  a 
valid  Avill. 

It  is  not  neccoo.,  'V  here  to  express  any  assent  to  or  dissent  from  the 
manner  in  which  the  ."^ubject  is  treated  in  Dew  v.  Clark  and  Boardman  v. 
Woodman.  AVhethcr  the  inquiry  is  advanced  by  saying  that  the  act  to  be 
invalid,  must  be  the  offspring  of  delusion,  instead  of  saying  that  it  must  be 
the  offspring  of  mental  disease,  is  a  matter  which  does  not  concern  this 
argument.!  If  the  doctrines  of  Banks  v.  GGodfelloio  and  Boardman  v. 
Woodman  bo  applied  in  the  case  under  consideration,  it  would  clearly 
have  been  error  to  give  the  instruction  as  to  delusion  requested  by  de- 
fendant's counsel ;  because  delusion  cannot  be  a  legal  test,  if  while  delu- 
sions exist  in  the  mind,  an  act  no  way  connected  with  such  delusions, 
nor  produced  by  them,  is  to  be  held  valid. 

How  far  the  analogy  holds  between  testamentary  capacity  and  capac- 
ity to  commit  crime,  it  is  not  necessary  to  inquire,  because  delusion  has 
never,  so  far  as  I  can  find,  been  regarded  as  a  test  in  criminal  cases, 
unless  HudjiekVs  Case  is  to  be  excepted  ;  and  all  the  argument  requires 
is,  to  show  that  the  rule,  which  it  has  been  thought  may  be  drawn  from 
the  authorities  in  civil  cases,  has  no  existence  even  there,  in  the  broad 
and  universal  terms  in  which  the  court  was  requested  to  apply  it  on  the 
trial  of  this  case. 

Fortunately,  we  are  not  embarrassed  by  any  decisions,  or,  so  far  as  I 
know,  any  dicta  or  expressions  of  single  judges  in  this  State  at  variance 
with  the  bi'oad  philosophical  doctrine  laid  down  by  the  judges  who  tried 
this  case.  Indeed,  there  seems  to  have  been  a  strong  leaning  hereto- 
fore in  the  same  general  direction,  as  is  shown  by  the  quotations  from 
charges  of  two  of  our  late  chief  justices,  Richakdson  and  Bell,  in  the 
brief  of  the  attorney-general  for  the  State. 

In  view  of  these  considerations,  we  are  led  to  the  conclusion  that  the 
instruction  given  to  the  jury  in  this  case,  that  "  if  the  defendant  killeu 
his  wife  in  a  manner  that  would  be  criminal  and  unlawful  if  the  defend- 
ant were  sane,  the  verdict  should  be  '  not  guilty  by  reason  of  insanity,' 
if  the  killing  was  the  offspring  or  product  of  mental  disease  in  the 
defendant,"  was  right;  that  it  fully  covers  the  only  general,  universal 
element  of  law  involved  in  the  inquiry ;  and,  therefore,  that  any  further 
step  in  the  direction  indicated  by  the  requests  would  have  been  an  in- 
terference with  the  province  of  the  jury,  and  the  enunciation  of  a  propo- 
sition which,  in  its  essence,  is  not  law,  and  which  could  not  in  any  view 


1  See  remarks  of  Lord  Penzance  in  Smith  v.  Tebbitt,  L.  R.  5  Q.  B.  549. 


EXISTENCE    OF   MENTAL   DISEASE. 


85 


A  Question  of  Fact,. 


or  that, 
;m,  but 
aking  a 

■om  tbe 
Iman  v. 
ct  to  b(; 
must  be 
ern  this 
Iman  v. 
clearly 
\  by  de- 
ile  delu- 
ilusions, 

'}  capac- 
sion  has 
al  eases, 
requires 
wn  from 
e  broad 
it  on  the 

far  as  I 
'ariance 
I  ho  tried 
hereto- 
us  from 
,,  in  the 

that  the 
|t  killeu 
Idefend- 
|sanity,' 
in  the 
Iniversal 
I  further 
an  iii- 
I)ropo- 
kiy  view 


safel>'  be  given  to  the  jury  as  a  rule  for  their  guidance,  because,  for 
aught  we  can  know,  it  might  have  been  fsilse  in  fact. 

This  would  SL'em  to  dispose  of  the  whole  ca^e.  All  the  other  instruc- 
tions given  are  onl}'  the  direct  logical  conse(iuenceof  this  principle. 

Whether  the  defendant  had  a  mental  disease,  as  before  remarked, 
seems  to  be  as  much  a  question  of  fact  as  whether  he  had  a  bodily  disease  ; 
and  whether  the  killing  of  his  wife  was  the  prod'iot  of  that  disease,  was 
also  as  clearly  a  matter  of  fact  as  whether  tliirst  and  a  quickened  pulse 
are  the  product  of  fever.  That  it  is  a  dilliciilt  question  does  not  change 
the  matter  at  all.  The  difficulty  is  intrinsic,  and  must  bo  met  from 
whatever  direction  it  may  be  approached.  Enough  has  already  he(  n 
said  as  to  the  use  of  symptoms,  phases,  or  manifestations  of  the 
disease  as  legal  tests  of  capacity  to  entertain  a  criminal  intent.  They 
are  all  clearly  matters  of  evidence,  to  be  weighed  by  the  jury  upon  the 
question  whether  the  act  was  the  offspring  of  insanity ;  if  it  was,  a 
criminal  intent  did  not  produce  it;  if  it  was  not,  a  criminal  intent  did 
produce  it,  and  it  was  a  crime. 

The  instructions  as  to  insane  impulse  seem  to  be  quite  correct,  and 
entirely  within  the  same  principle.  If  the  defendant  had  an  insane  im- 
pulse to  kill  his  wife,  which  he  could  not  control,  then  mental  disease 
produced  the  act.  If  he  could  have  controlled  it,  then  his  will  must 
have  assented  to  the  act,  and  it  was  not  caused  by  disease,  but  by  the 
concurrence  of  his  will,  and  was  therefore  crime. 

These  instructions  have  now  been  twice  given  to  the  jury  in  capital 
cases  in  this  State,  first  by  Chief  Justice  Peuley,  in  State  v.  Pike,  and 
now  again  by  Judge  Doe  in  the  case  before  us.  In  State  v.  Pike  no 
exceptions  were  taken  to  this  part  of  the  charge,  and  the  questions  here 
raised  were  not  before  the  whole  court  for  judicial  determination,  al- 
though they  were  printed  in  the  case  as  transferred,  and  no  objection  to 
their  forni  is  understood  to  have  been  made. 

But  a  question  was  passed  ui^on  in  that  case,  which,  carried  to  its 
logical  results,  goes  far  toward  settling  most  of  the  questions  raised 
upon  the  instructions  here.  It  was  claimed  that  the  defendant  was  irre- 
spon'^Ible  by  reason  of  a  species  of  insanity  called  dipsomania.  The 
court  instructed  the  jury  that  "  whether  there  is  such  a  mental  disease 
as  dipsoi^iania,  and  whether  the  defendant  had  that  disease,  and  whether 
the  killing  of  Brown  was  the  product  of  such  disease,  were  questions 
of  fact  for  the  jury."  These  instructions  were  specially  excepted  to 
by  the  defendant,  and  were  held  correct.  This  would  seem  to  be  en- 
tirel}'  inconsistent  with  the  idea  that  either  delusion  or  knowledge  of 
right  and  wrong  is,  as  matter  of  law,  a  test  of  criminal  capacity  ;  and 


[ 


86 


THE   LEGAL   TEST   OF   INSANITY. 


State  V.  Jones. 


would  also  seem  to  be  about  equivalent  to  holding,  in  general  tcrmp, 
that  it  was  for  tiie  jury  to  say  whether  the  killing  was  the  product  of 
mental  disease,  and  return  their  verdict  of  "  guilty  "  or  •'  not  guilty  by 
reason  of  insanit}',"  as  they  found  that  fact  to  be. 

We  should  be  slow  to  establish  any  doctrine  on  this  important  subject 
which  we  could  see  would  be  likely  to  result  in  the  escape  of  malefac- 
tors from  punishment,  or  afford  encouragement  to  a  fictitious  defence 
of  insanity  ;  and  no  considerations  of  convenience  or  ease  in  the  admin- 
istration of  the  law,  as  before  observed,  should  be  allowed  to  weigh  at 
all  against  adhering  to  any  doctrine  or  any  course  of  practice  that  rests 
upon  sound  reason,  or  that  appears  to  be  necessary  for  the  attainment 
of  right  results,  whether  such  doctrine  or  practices  is  supported  by  uni- 
form authority  or  not.  Still  it  is  no  objection  to  the  course  of  the 
judges  who  tried  this  case,  and  who  tried  Pike's  Case,  that  it  relieves 
the  subject  of  some  of  its  most  formidable  difficulties  so  far  as  the 
court  is  concerned,  and  at  the  same  time  furnishes  at  least  one  clear 
and  explicit  direction  which  the  jury  can  understand. 

No  untried  or  doubtful  theory  is  adopted.  The  instruction  given  was 
always  law,  and  always  must  be  law,  while  justice  is  administered  upon 
principles  at  all  consonant  with  the  calls  of  civilization  and  humanitj". 
The  only  objection  is,  that  the  court  did  not  go  further,  and  undertake 
to  explore  a  region  where  all  is  doubt,  imcertainty  and  confusion  upon 
the  authoi'ities,  and  where,  upon  principle,  they  had  no  right  to  go  at 
all ;  that  they  did  not  undertake  to  lay  down  a  rule  where,  if  we  could 
allow  ourselves  to  investigate  the  fact,  we  should  probably  find  tiicre  is 
and  can  be  no  rule,  nor  to  enunciate  as  law  a  pure  matter  of  fact  which 
can  only  be  absolutely  known  to  the  Almighty. 

1  may  add  that  it  confirms  me  in  the  belief  that  we  are  right,  or  at 
least  have  taken  a  step  in  the  right  direction,  to  know  that  the  view  em- 
bodied in  this  charge  meets  the  approval  of  men  who,  from  great  ex- 
perience in  the  treatment  of  the  insane,  as  well  as  careful  and  long 
study  of  the  phenomena  of  mental  disease,  are  infinitely  better  qualified 
to  judge  in  the  matter  than  any  court  or  lawyer  can  be.' 

The  satisfaction  with  which  the  charge  to  the  jury  in  State  v.  Pike  is 
understood  to  have  been  received  by  the  most  enlightened  members  of 
the  medical  profession,  proves  to  my  mind  not  that  we  have  thrown 
down  old  landmarks  to  adopt  any  theory  based  on  a  partial,  imperfect 
or  visionary  view  of  the  subject,  but  that,  in  a  matter  where  we  must 
inevitably  rely  to  a  great  extent  upon  the  facts  of  science,  we  have  con- 
sented to  receive  those  facts  as  developec'  and  ascertained  by  the  re- 


>  Sou  Uoy's  Med.  Jur.  Iiim.  (5lh  vd.)  f^ccl.  44. 


NO    LEGAL    TIIST. 


87 


Stcvnis  V.  State 


searches  and  observations  of  our  own  day,  instead  of  adhering  blindly 
to  dogmas  which  were  accepted  as  facts  of  science  and  erroneousl}' 
promulgated  as  principles  of  law  fifty  or  a  hundred  j'ears  ago. 

The  last  instruction,  that  the  defendant  was  to  be  acquitted  on  the 
ground  of  insanity,  unless  the  jury  were  satisfied,  beyond  a  reasonable 
doubt,  that  the  killing  was  not  produced  by  mental  disease,  was  in  ac- 
cordance with  State  v.  Bartlett, '  and  was  correct. 

Exceptions  overruled. 


NO  TEST  —  BURDKN  OF  PROOF. 

Stkvexs  V.  State. 

[;n  Ind.  4S5.] 
In  the  Supreme  Court  of  liKUana,  November  Term,  1869. 

Hon.  John  T.  Elliott, 
.   "     Jamks  S.  Fkazkk, 

'«        RoBKItT  C.  GllEGORY,      (    '^"<^6'«S- 

"     CiiAKLES  A.  Ray,  j 

L  No  Test— Insane  Impulse*  —  H  .in  insane  impuUc  leads  to  the  commieBion  of  a 
criiiio,  the  aclor  is  not  reisponsible.  An  instruction  that  "  if  the  jury  believe  that  the 
defendant  knew  the  difference  between  right  and  wrong  in  respect  to  the  art  in  (piep- 
tinn ;  if  he  was  conscious  that  such  act  was  one  which  he  ought  nut  to  do,"  he  was 
res|ioDBibIe  for  his  act,  is  erroneous. 

2.  Burden  of  Proof.—  Upon  an  indictment  for  murder  where  the  defence  is  insanity,  the  jury 
should  ac(|uit  if  tlicy  entertain  a  reasonable  doubt  as  to  the  soundness  of  mind  of  the 
prisoner  at  the  time  of  the  homicide,  although  they  believe  lie  had  judgment  and  rea- 
son suflicient  to  discriminate  between  right  and  wrong  in  the  ordinary  affairs  of  life 
He  is  as  much  entitled  to  the  benefit  of  u  doubt  on  that  as  any  otiier  material  fact  in 
the  case. 


Pike  is 
ibers  of 
thrown 
perfect 
e  must 
AC  con- 
the  re- 


This  was  an  appeal  from  the  Vigo  Criminal  Co-art.  The  appellant  was 
indicted  for  murder  in  the  first  degree,  and  convicted.  The  defence 
was  insanity.  At  the  instance  of  the  prosecuting  attorney,  the  court 
instructed  the  jury  that  "  in  order  to  excuse  a  man  from  killing  another, 
on  the  ground  of  insanity,  it  must  appear  to  the  satisfaction  of  the  jury 
that  he  was  either  absolutely  insane  at  the  time  of  the  act,  so  that  he 
did  not  know  the  difference  between  right  or  wrong,  or  that  he  was 
laboring  under  some  form  of  monomania  by  which  he  was  irresistibly 

43  N.  H.  224. 


88 


THE    LEGAL   TEST    Oi     INS^AXITY. 


Stevens  v.  Statu. 


impelled  by  an  uncontrollable  will  to  the  per|)etration  of  the  act ;  biit 
such  monomania  must  be  in  relation  to  the  act  of  killin'j,for  if  it  is  mo- 
nomania upon  some  other  subject,  it  does  not  excuse  a  killing.  If  a  man 
becomes  a  monomaniac  on  account  of  the  morl)id  state  of  Ins  domestic 
affections,  or  if  he  becomes  so  on  account  of  the  morbid  state  of  his 
religious  feelings,  in  either  case  his  moral  sense  is  only  affected  by  the 
cause  of  his  disease ;  that  is  he  is  only  excused  from  the  commission  of 
crime  so  far  as  he  acts  under  the  irresistible  influence  of  the  particular 
monomania  under  which  he  is  laboring;  and  if,  aHhoiajh  laboring  tinder 
either  of  said  forms  of  monomania,  heshall  kill  a  man  loith  premeditation, 
m<dice  and  purpose,  he  loould  be  without  excuse,  and  ivoidd  be  guilty  of 
murder  in  thejir^t  degree.'" 

"In  order  to  excuse  a  man  for  the  commission  of  a  crime  on  the 
ground  of  monomania,  it  must  appear  that  the  monomania  had  relation 
to  the  particidar  crime  committed,  and  if  it  teas  monomania  upon  any 
other  subject,  it  would  be  no  excuse. ' ' 

"  Where  a  man  kills  another  without  having  given  any  previous  indica- 
tions of  insanity,  and  afterwards  so  acts  as  to  appear  to  be  insane,  the 
jury  should  consider  this  fact  to  determine  whether  insanity  is  not  simu- 
lated or  pretended ;  and  if  the}'  find  it  was  pretended,  it  should  not 
weigh  anything  in  their  decision  of  tiie  question  of  guilt  or  innocence." 

At  the  request  of  the  defendant,  the  jury  were  instructed  that  "if 
they  believed  from  the  evidence  that  when  the  prisoner  committed  the  act 
charged  in  the  indictment,  he  was  laboring  under  any  irresistible  and  un- 
controllable mental  delusion,  impelling  him  to  do  said  act  —  that  he  was 
at  the  time  of  the  perpetration  of  said  killing  in  such  a  state  of  mind  as  to 
be  unable  to  control  his  will  and  his  actions  in  regard  to  the  act  so  com- 
mitted —  then  in  judgment  of  law  he  was  insane,  and  could  not  be  guilty 
of  the  offence  of  murder  charged  in  the  indictment,  and  he  is  conse- 
quently entitled  to  a  verdict  of  not  guilty." 

"  If  the  jury  believe  from  the  evidence  that  at  the  time  of  commit- 
ting the  act  diarged  in  the  indictment,  tlie  prisoner  was  moved  thereto 
by  an  insane  impulse  controlling  his  will  and  liis  judgment  —  an  impulse 
too  powerful  for  him  to  resist — and  said  insu  e  impulse  arose  from  causes 
physical  or  moral,  or  from  both  combined,  JOt  voluntarily  induced  by 
himself,  luider  sucli  circumstances  the  jury  'annot  find  the  defei;  lant 
guilt}'  as  charged." 

The  defendant  asked  the  following  instructions:  that  "  if  the  jury 
entertain  a  reasonable  doubt  as  to  the  soundness  of  the  mind  of  the 
prisoner  at  the  time  of  the  commission  of  the  homicide  charged,  he  is 
entitled  to  the  benefit  of  that  doubt,  as  ho  would  be  to  the  benefit 
of  a  doubt   as    to   any    other   material    fnet   in   the   case — it   being. 


INSAXK    IMPULSE 


80 


1  act ;  but 
'  it  is  mo- 
lt a  man 
domestic 
ito  of  his 
id  by  the 
aission  of 
particular 
iug  under 
editation, 
I  guilty  oj 

le  on  the 

d  relation 
upon  any 

us  indica- 

isane,  the 

not  simu- 

hould  not 

locence." 

that  "if 

d  the  act 

e  and  un- 

at  he  was 

lind  as  to 

so  com- 

je  guilty 

is  conse- 

commit- 

thereto 

impulse 

m  causes 

uced  by 

fei:  lant 

he  jury 
I  of  the 
d,  he  is 
benefit 
being, 


Form  of  IiistriK'tioii>  (.'nticixtl. 


under  the  statute  of  this  State,  a  necessary  injiredient  of  the  offence 
tliat  the  i)er.s(ju  charged  shall,  at  the  time  of  the  commission  of  the 
offence,  be  of  sound  mind,  and  if  the  evidence  shows  that  the  pris- 
oner, at  the  time  of  the  commission  of  the  act,  was  not  of  such 
sound  mind,  although  the  jury  may  believe  he  had  judgment  and 
reason  sufficient  to  discriminate  between  right  and  wrong  in  the  ordinary' 
affairs  of  life  even  at  the  time  of  the  connnission  of  tlie  offence,  they 
cannot  find  him  guilty."  The  court  refused  to  give  the  instruction,  as 
asked,  but,  over  the  objection  of  the  defendant,  gave  it  witli  this  quali- 
fication: "If  the  jury,  believe  from  the  evidence,  that  the  defendant 
knew  the  difference  between  rigiit  and  wrong  in  respect  to  the  act  in 
question ;  if  he  was  conscious  that  such  act  was  one  which  he  ought 
not  to  do ;  and  if  that  act,  at  the  same  lime,  was  contrary  to  the  law  of 
the  State,  then  he  is  responsible  for  his  act." 

There  was  a  motion  for  a  new  trial  on  the  ground  that  the  parts  of 
charge  in  italics  were  erroneous,  and  that  the  qualification  of  the  instruc- 
tions asked  by  the  defendant  was  incorrect.  The  new  trial  was  refused, 
and  defendant  appealed  to  this  court. 

/.  C.  Baird,  C.  Cruft,  W.  E.  McLean,  and  J.  N.  Pierce,  for 
appellant;  R.  W.  Thompson,  and  D.  E.  Williamson,  attorney-general 
for  the  State. 

The  opinion  of  the  court  was  delivered  by 

Gregory,  J. —  It  is  undoubtedly  tlie  law  as  charged  by  the  court  below, 
that  if  the  defendant  was  moved  to  the  act  by  an  insane  impulse  con- 
trolling his  will  and  his  judgment,  then  he  was  not  guilty  of  the  crime 
charged.  And  if  the  defendant  was  a  monomaniac  on  any  subject,  it 
was  wholly  immaterial  upon  what  subject,  so  that  the  insane  impulse  led 
to  the  commission  of  the  act. 

It  is  claimed  that  the  instructions  as  to  this  point  given  by  the  court, 
at  the  instance  of  tlie  State's  attorney,  were  calculated  to  mislead  the 
jury :  and  two  members  of  this  court  are  of  that  opinion.  It  is  clear 
that  tlie  instructions  might  have  been  put  in  a  better  form,  but  I  have 
no  doubt  that  they  are  correct  law,  as  thej'  were  intended  by  the  court 
to  be  understood,  and  particularly  as  explained  by  the  court  in  the  in- 
structions asked  by  the  defendant.  But  if  this  case  turned  upon  that 
question,  I  should  hesitate  to  determine  that  a  jury  might  not  have 
been  mislead  by  instructions,  about  the  meaning  of  which  there  is  a 
difference  of  opinion  among  the  members  of  this  court. 

It  is  claimed  that  the  court  erred  in  the  instruction  in  reference  to 
simulating  insanity  after  the  commission  of  the  act,  in  assuming  tha 
the  defendant  had  given  no  previous  indication  of  insanity.  There  was 
some  evidence  of  previous  indication  of  insanity,  but  we  do  not  under- 


T 


90 


THK    LKOAL    TKST    f)F    INSANITY 


Stevens  v.  State 


stand  the  instruction  as  making  any  such  assumption  The  instruction 
may  not  have  been  applicable  to  the  case  made,  and  may  have  misled 
the  jury. 

But  we  are  clear  that  the  court  below  erred  in  giving  the  qualification 
to  the  instruction  asked  by  the  defendant. 

The  statute  provides  that  "if  any  person  of  sound  mind  shall  pur- 
posely and  with  premeditated  malice  kill  any  human  being,  such  person 
shall  be  deemed  guilty  of  murder  in  the  first  degree."  ' 

The  Legislature  have  defined  the  meaning  of  the  expression  "  person 
of  unsound  mind."  It  is  provided  tliat  this  phrase  "•'  shall  be  taken  to 
mean  any  idiot  non  compos,  lunatic,  monomaniac,  or  distracted 
\x    ,      "2 

1  >  f  ■  jat  difficulty  has  been,  in  cases  of  partial  insanitj',  to  fix  the 
Stanaaid  of  criminal  responsibility.  Tlie  leading  case  in  this  country 
[fl  Commonu-ealth  v.  Rogers.^  Chief  Justice  Siiaw,  in  his  charge  to 
the  jr.  in;,  case,  said:  "  Tiie  diflSculty  lies  between  these  extremes 
in  the  case  of  partial  insanity,  where  the  mind  may  be  clouded  and 
weakened,  but  not  incapable  of  remembering,  reasoning  and  judging, 
or  so  perverted  by  insane  delusions  as  to  act  under  false  impressions 
and  influences.  In  these  cases,  the  rule  of  the  law,  as  we  understand 
it,  is  this :  A  man  is  not  to  be  excused  from  responsibility,  if  he  has 
capacity  and  reason  suflBcient  to  enable  him  to  distinguish  between  right 
and  wrong  as  to  the  particular  act  he  is  then  doing;  a  knowledge  and 
consciousness  that  the  act  he  is  then  doing  is  wrong  and  criminal,  and 
will  subject  him  to  punishment.  In  order  to  be  responsible,  he  must 
have  suflficient  power  of  memory  to  recollect  the  relation  in  which  he 
stands  to  others,  and  in  which  otiiers  stand  to  him  ;  that  the  act  ho  is 
doing  is  contrary  to  the  plain  dictates  of  right  and  justice,  injurious  to 
others,  and  a  violation  of  the  dictates  of  duty.  On  the  contrary,  al- 
though he  maj'  be  laboring  under  partial  insanity,  if  he  still  understands 
the  nature  and  character  of  his  act  and  its  consequences ;  if  he  has  a 
knowledge  that  it  is  wrong  and  criminal,  and  a  mental  power  sufflcieiit 
to  apply  that  knoidedge  to  his  own  case,  and  to  know  that  if  he  does  the 
act  he  will  do  wrong  and  receive  punishment,  such  partial  insanity  is 
not  suflftcicnt  to  exempt  him  from  responsibility  for  criminal  acts." 

As  we  understand  this  charge,  it  docs  not  go  the  length  of  fixing  the 
test  "  of  a  knowledge  of  right  and  wrong."  It  recognizes  the  neces- 
sity of  a  mental  power  sufirtcient  to  apply  that  knowledge,  and  act  ac- 
cordingly. Tl:/"  'i.arge  is  by  no  means  clear,  and  we  think  that  it  is  not 
entitled  to  the  weight  usually  awarded  to  it. 


'  2G.  A  H.,  p.  435,  BCCt.  2. 


2  2  G   &  IT.,  pp  57:?,  574,  RfCt.  1. 


'  7  Mete.  500. 


NO    LEGAL   TEST. 


91 


Burden  of  Proof. 


instruction 
liave  misled 

malification 

d  sliall  pur- 
uich  person 

3n  "  person 

be  taken  to 

distracted 

y,  to  fix  tlie 

;liis  countrj- 

3  charge  to 

se  extremes 

;lou(lcd  and 

[id  judging, 

impressions 

understand 

V,  if  be  has 

tween  right 

wlcdge  and 

iminal,  and 

le,  he  must 

n  which  he 

le  act  he  is 

njurious  to 

ntrary,  al- 

nderstands 

if  he  has  a 

r  sitfficieiit 

e  does  the 

insanity  is 

cts." 

fixing  the 

I  the  neces- 

Lnd  act  ac- 

iat  it  is  not 


The  law  was  much  better  put  in  Commonwealth  v.  //«,sA(V/,'  tlius: 
"Tliatthe  true  test  lies  in  the  word  power.  Has  the  defendant  in  a 
criminal  ease  the  power  to  distinguish  rigiit  from  wrong,  and  the  power 
to  adhere  to  the  riglit  and  avoid  the  wrong?  Has  the  defendant,  in 
addition  to  the  capacities  mentioned,  the  power  to  govern  his  mind,  his 
body,  and  his  estate?  " 

Indeed,  there  are  very  strong  reasons  for  holding  tliat  tlie  cnarge  of 
Chief  Justice  Peuley,  in  State  v.  Pike,-  is  tlie  true  law  on  the  sub- 
ject. He  instructed  the  jury  "that  the  verdict  should  be  not  guilty, 
by  reason  of  insanity,  if  the  killing  was  the  offspring  or  product  of 
mental  disease  in  the  defendant;  that  neither  delusion  nor  kiiowledge  of 
right  and  wrong,  nor  design  or  cunning  in  planning  and  executing  the 
killing  and  escaping  or  avoiding  detection,  nor  ability  to  recognize  ac- 
quaintances, or  to  labor  or  transact  business  or  manage  affairs,  is,  as  a 
matter  of  law,  a  test  of  mental  disease  but  are  purely  matters  of  fact  to 
lie  determined  by  the  jury."  The  argument  that  leads  strongly  to  tliis 
conclusion  is  found  in  the  able  dissenting  opinion  of  Judge  Doe,  in 
Boardman  v.  Woodman.'^  It  is  not  necessary  for  us  to  go  this  length 
in  the  case  in  judgment. 

In  a  criminal  case  the  jury  must  be  satisfied  beyond  a  reasonable 
doubt  of  the  defendant's  mental  capacity  to  commit  tlie  crime  charged. 
This  is  but  an  application  of  the  general  principle  that  the  criminal  in- 
tent must  be  proved  as  well  as  the  act ;  that  without  a  capable  mind 
such  intent  cannot  exist,  the  very  element  of  crime  being  wanting. 
Such  terms  as  "  criminal  intent,"  "  vicious  will,"  and  "  use  of  reason," 
are  used  in  a  very  broad  and  general  sense,  including  the  idea  that  the 
mind  must  be  in  such  a  reasonable  condition  as  to  be  capable  of  giving 
a  guilty  character  to  the  act.  The  will  does  not  join  with  the  act,  and 
there  is  no  guilt  when  the  act  is  directed  or  performed  by  a  defective  or 
vitiatod  understanding.  So  far  as  a  person  acts  under  the  influence  of 
mental  disease  he  is  not  accountable. 

We  wish  ill  this  case  to  be  understood  as  simply  holding  that  the 
qualification  of  the  instruction  asked  by  the  defendant  was  not  law,  and 
for  tills  reason  the  court  below  ought  to  have  granted  a  new  trial. 

Judgment  reversed,  cause  remanded,  with  directions  to  grant  a  new 
trial,  and  for  further  proceedings. 
Elliott,  J.,  was  alisent. 


^  Philadelphia    Legal    Intelligencer    fur 
Dec.  4,18WJ;4  .\ni.  F..  R.  240. 


'  4a  N.  31)9.     See  American  Law  Review 
for  Januaiy,1870,  pp.  245,  246. 
3  47N.H..  120. 


500. 


92 


TUK    LKOAL    TKST    OF    INSANITY. 


State  V.  Felli'iv 


insank  iml'ulsk  — i'uior  insanttv  — in'samtv  of  fattier  — evt- 

denck  of  experts. 

State  v.  Feltek. 

[25  Iowa,  C7.] 

In  the  Supreme  Court  of  Iowa,  Jane  Term,  1868. 

Hon.  Jon.v  F.  DiM.ox,  Chipf  Justice. 
"     CUKSTKU  C.  Coi.K,      1 
«'    GKomiK  S.  Wi!i(;iiT,  \  Judges. 

"      JO.SKl'H  M.  liKCK,  j 

1.  Test  of  Insanity  — Insane  Impulse. —If  a  person  commit  a  homicide,  knowing  it  to 

bo  wrong,  but  driven  to  it  by  un  iincontrolliiblo  and  irresistible  impulse  arising  not. 
from  natural  passion,  but  from  an  insane  condition  of  the  mind,  he  is  not  criminally 
responsible. 

2.  Evidence  — Prior  Insanity.  — Evidence  that  the  prisoner  had  been  insane  at  a  period 

)irior  to  the  date  of  the  commission  of  the  act  is  admissible.  • 

3. Insanity  of  Prisoner's  Father.- On  the  defence  of  insanity  in  the  prisoner,  evi 

dcn(!e  tlmt  his  fatlicr  was  subject  to  fits  of  insanity,  is  admissible. 

4. Medical  Experts.  —  Medical  witnesses  who  have  no  personal  knowledge  of  the 

prisoner  cannot  be  allowed  to  give  an  opinion  formed  from  the  testimony  in  the  case 
and  his  conduct  on  the  trial,  as  to  bis  sanity  at  the  time  of  the  act. 

Appeal  from  Benton  District  Court. 

The  defendant  was  indicted  for  the  murder  of  his  wife  ;  pleaded  not 
guilt}'-,  was  tried,  found  guilty  of  murder  in  the  second  degree,  and 
sentenced  to  imprisonment  in  the  penitentiary  for  life.  From  this  judg- 
ment he  appealed. 

J.  H.  Murj)hj/  &  Brother,  I.  M.  Preston  &  Son,  for  appellant. 

Henry  O'Connor,  Attoi'ney-General  for  the  State. 

Dillon,  C.  J. 

(Omitttng  rulings  on  other  matter.) 

The  next  error  assigned  relates  to  the  action  of  the  court  in  exclud- 
ing from  the  jury  certain  portions  of  the  aflidavlt  made  by  the  defend- 
ant for  a  continuance.  Upon  the  afWdavit  being  made,  the  district 
attorney,  according  to  the  record,  "to  avoid  a  continuance  admitted 
that  the  witnesses  named  in  said  aftidavit  would  swear  to  the  facts 
therein  stated  as  facts  expected  to  be  proven  by  them ;  but,  by  agree- 
ment of  parties,  the  defendant  being  present  and  assenting  thereto,  the 
State,  on  the  trial,  or  before,  was  to  have  the  right  to  object  to  the 
whole  or  any  part  of  the  affidavit  for  insufficiency,  irrelevancy  or  iii- 
competeucy."     On  the  trial  the  court,  on  the  objection  of  the  State, 


EVIDENCE    OF    I'lJIOIl    INSANITY 


d'6 


'HKIt  — KVI- 


Practice  and  Evulciice. 


e,  knowing  It  to 
iilse  arising  i\<>t 
is  not  criminally 

isane  at  a  period 

lie  prisoner,  evi 

lowledge  of  tl'u 
>ny  in  the  case 


pleaded  not 
de<j^ree,  and 
this  judg- 

iUant. 


|t  in  exclud- 
tlie  defeu'l- 
the  district 
admitted 
to  the  facts 
It,  by  agree- 
thereto,  the 
[bject  to  the 
•ancy  or  ni- 
tlie  State, 


made  pursuant  to  the  above  stipuhition,  exchided  certain  portions  of 
tlie  allidavit,  to  wliich  the  defendant  excepted,  and  assigns  its  action  as 
error. 

It  is  first  urged  that  the  court  exchided  the  testimony  of  the  defend- 
ant's brothers,  who  were  acquainted  witii  him  in  former  ^-ears  and  who 
would  testify  to  facts  showing  the  defendant  to  have  been  at  times  in- 
sane at  tliat  period  of  his  life,  about  sixteen  years  ago.  Tliis  portion 
of  the  aflidavit,  though  underscored  in  red  ink,  is  not  marked  on  the 
margin  as  having  been  stricken  out  by  the  court,  and  it  is  not  entirely 
certain  that  it  was  excluded  from  the  jury. 

We  fully  agree  with  defendant's  counsel  that  on  a  question  of  insan- 
ity it  is  competent  to  show  that  the  defendant  had  been  insane  at  a  prior 
period  of  his  life.  The  testimony  of  Dr.  Hale  is  not  marked  excluded 
on  the  margin.  It  is  true  a  portion  of  it  is  underscored  in  rod  ink,  but 
although  the  question  is  left  in  some  doubt,  we  cannot  infer  from  thence 
that  this  portion  was  rejected  by  the  court.  Anotlier  ol)jectioii  consists 
ill  the  rejection  of  that  i)ortion  of  the  aflidavit  relating  to  the  proi)osed 
testimony  of  Dr.  Hughes,  of  the  Keokuk  Medical  College,  Dr.  Ranney, 
of  the  Insane  Asylum,  and  Dr.  Staples,  of  the  United  States  Army,  each 
of  whoui  is  stated  to  have  had  large  experience  in  the  treatment  of 
insanity.  The  aflidavit  then  states  that  from  the  foregoing  facts  and 
circumstances  respecting  the  mental  derangement  of  the  defendant, 
viz. :  those  expected  to  be  proved  by  other  witnesses,  —  and  from  the 
circumstances  connected  with  the  alleged  homicide  and  defendant's  acts 
and  conduct  on  the  trial,  in  their  opinion  the  defendant,  at  the  time  of 
the  alleged  homicide,  was  in  a  deranged  state  that  would  render  him 
unconscious  of  what  transpired. 

At  first  it  seemed  to  us  that  in  excluding  this  portion  of  the  affidavit 
from  the  jury,  the  court  erred.  But  upon  a  closer  examination,  we  are 
of  opinion  that  its  action  may,  under  the  statute,  and  the  peculiar  char- 
acter of  the  aflidavit,  be  sustained.  The  statute  requires  "particular 
facts,  as  distinguished  from  legal  conclusion,"  to  be  stated.'  If  the 
"  court  finds  the  statement  of  facts  .sufficient,  the  cause  shall  be  con- 
tinued unless  the  opposite  party  will  admit  that  the  witness,  if  present, 
would  swear  to  the  facts  thus  stated ;  in  which  event,  the  cause  shall 
not  be  continued ;  but  the  party  moving,  therefore,  shall  read,  as  the 
evidence  of  such  witness,  the  facts  held  by  the  court  to  be  sufliciently 
stated.  "2  The  i>arty  stipulated  that  all  proper  objections  to  the  suffi- 
ciency of  the  affidavit  might  be  made  on  the  trial. 


■  Sects.  3010,  3011,  4760. 


3  Sect.  3013. 


I 


94 


THE    LKUAL   TKST   OF    INSANITY. 


State  V   FflttT 


It  will  be  seen  tliut  it  was  proposed  to  prove  by  the  three  inciliciil  gen- 
tlemen named,  that  in  tiieir  opinion  tlie  defendant  was  insane  at  the 
time  the  homicide  was  eomniitted.  The  affidavit  inulertakes  to  give  the 
data  upon  which  this  opinion  is  based.  If  the  <Iata  thus  given  will  not,  in 
law,  entitle  the  medical  gentlemen  to  give  to  tiie  jury  an  opinion  as  to  tln' 
defendant's  sanity,  then,  strictly,  there  was  no  error  in  excluding  such 
opinion  from  the  jury.  If  those  medical  men  had  been  present  upon 
the  witness-stand,  and  had  been  asked,  "from  the  facts  and  circum- 
stances stated  by  previous  witnesses,  and  from  those  testified  by  still 
other  witnesses,  relating  to  tlie  homicide,  and  from  defendant's  conduct 
on  the  trial,  is  it  your  opinion  that  the  defendant  was  sane  or  insane 
when  he  committed  the  act?"  Such  a  question  would  have  been 
nicompetent  for  it  practically  puts  the  medical  witnesses  in  the  place  of 
the  jury.  1 

Viewing  the  question  arising  on  this  portion  of  the  affidavit  as  one  of 
law  purely,  we  are  not  prepared  to  hold  that  we  would,  for  the  reason 
alone  that  this  part  of  the  affidavit  was  excluded,  reverse  the  judgment. 

But  the  action  of  the  court  in  striking  out  another  portion  of  the  afli- 
davit,  and  in  excluding  the  same  from  tiie  jnry,  was  manifestly  errone- 
ous. We  referred  to  that  part  relating  to  the  testimony  of  Dr.  Fay. 
This  was  as  follows:  "Affiant  expects  to  prove  by  Dr.  Z.  Fay,  who 
resides  in  Albany  County,  New  York,  that  he  was  the  family  physician  of 
defendant's  father  while  the  defendant  lived  at  home ;  that  he  has  visited 
the  defendant  while  defendant  was  laboring  inider  the  mental  disability 
above  set  forth ;  that  said  Fay  is  a  jjiactising  physician,  and  that  in  his 
opinion  the  defendant  was,  while  laboring  under  tlie  mental  disability 
above  set  forth,  viz. :  that  specified  in  previous  portions  of  the  affida- 
vit, —  mentally  deranged,  and  unconscious  of  what  transpired  arouiid 
him,  and,  from  his  knowledge  of  the  defendant,  and  of  his  father's 
family,  he  believes  that  the  defendant  is  subject  to  mental  derangement 
and  .temporary  insanity." 

If  the  defendant  has  been  insane  at  former  periods  of  his  life,  it  is 
undeniable  that  this  is  a  fact  proper  to  be  shown  to  tlie  jury  try  in"-  the 
question  of  his  criminal  capacity. 

And  it  is  eciually  undeniable,  that,  if  a  physician  visits  a  person,  and 
from  actual  examination  or  observation,  l>ecomcs  accjuainted  with  his 
mental  condition,  he  may  give  an  opinion  respecting  such  mental  condi- 
tion at  that  time ;  that  is,  he  nmy,  under  such  circumstances,  state  to 


'  Pelamourges  v.  Clark,  9  Iowa,  116 ;  3  Greenl.  on  Ev.,  sect.  5. 


OPINIONS  OF    MKDICAL    MKN, 


95 


nulictil  gon- 
isaiie  lit  the 
I  to  give  tilt' 
\  will  not,  ill 
ion  as  to  thv 
;lu(ling  such 
resent  upon 
and  circuin- 
ified  by  still 
it's  conduct 
le  or  insane 
have  been 
I  the  place  of 

ivit  as  one  of 

>r  the  reason 

le  judgment. 

1  of  the  alli- 

estly  errone- 

pf  Dr.  Fay. 

7,.  Fay,  who 

lysician  of 

has  visited 

al  disability 

that  in  his 

disability 

the  affiila- 

ired  around 

lis  father's 

erangenient 

is  life,  it  is 
trying  the 

)erson,  and 
d  with  his 
'utal  condi- 
s,  state  to 


Prisoner  Kntlthtl  to  Kiilr  Trial. 


the  jury  his  opinion  as  to  the  sanity  or  insanity  of  tlie  person  at  the 
time  when  he  thus  olwerved  or  examined  him.' 

There  is  no  more  reason  why  he  may  not  do  this,  than  why  he  might 
not  testify  that  he  saw  a  certain  person  at  a  certain  time,  and  that  he 
was  then  laboring  under  an  epileptic  fit,  or  under  an  attack  of  tyi»lius 
fever,  or  had  been  stricken  down  and  rendered  unconscious  by  an 
aiioplectic  stroke. 

"We  have  found  it  impossible  to  sustain  the  ruling  of  the  court  in  re- 
jecting this  portion  of  the  allidavit.  Of  its  materiality  it  is  needless  to 
speak.  The  point  deciuec^  is,  that  a  medical  witness  may,  from  personal 
knowledge  and  examination,  give  an  opinion  based  thereon,  as  to  the 
mental  condition  of  such  person.  lie  might,  of  course,  be  required  on 
cross-examination,  to  describe  the  condition  of  the  person,  and  to  give 
the  date  and  facts  upon  which  his  opinion  is  based.  For  this  error,  the 
iiubmient  must  be  reversed.  This  result  we  regret  the  less,  because 
there  is  much  in  the  record  to  show  (though  not  sutHcient  on  this 
account  alone  to  justify  a  reversal),  that  all  that  portion  of  the  affidavit 
before  referred  to  as  being  underscored  with  red  ink,  and  which  stated 
that  defendant's  father  and  the  defendant  himself  were  suliject  to 
iiisunity,  were  stricken  out  by  the  court  before  the  affidavit  was  read  to 
the  jury;  and  because,  also,  we  are  not  satisfied  that  there  was  that 
full,  thorough,  and  deliberate  examination  of  the  defendant's  alleged 
insanity  to  which  he  was,  under  the  law,  entitled. 

We  cannot  resist  the  conclusion,  that  the  defendant,  by  the  rulings 
of  the  court  below,  was  practically  deprived  of  showing  to  the  jury  the 
truth  of  the  alleged  insanity  of  his  father,  and  of  himself  at  former 
periods  of  his  life;  facts  competent,  material,  and  highly  important  as 
bearing  upon  the  question  of  defendant's  alleged  insanity. - 

In  the  debate  of  the  House  of  Lords  on  3Ii:Xaghteti's  Case,  Lord 
BijiifoiiAM  very  justly  criticised  the  needless  haste  of  the  court  in  Bel- 
iin'jliani'ti  Case,  in  proceeding  to  trial  without  allowing  f'l.'  prisoner  the 
((pportiinity  of  slioMing  that  his  family  had  been  tainted  with  insanity, 
Mild  tliat  he  himself  had  been  previously  insane.'' 

Finally,  it  is  insisted  that  the  court  erred  in  its  instructions  to  the 
jiirv,  and  in  its  refusal  to  give  certain  instructions  pra3'ed  by  the  de- 
fendant relative  to  the  defence  of  insanity.     Before  noticing  the  assign- 


•  In  re  Cainiichael.SO  Ala. 514;  1  Bishop's 
(  r.  I'roc,  sod.  ."i^l;  Commonwealth  v. 
Riigers,  7  Mete.  500;  Clark  v.  State,  12  Ohio, 
1"^:!;  r.axtert'.  Abbott,  7  Gray,  71;  McAllister 
<-  State,  17  Ala.  134 ;  lu  re  Vanuukuu,  2  Stock. 


18R;  1  Greenl.  on  £t.,  sect.  440;  Ileald  v. 
Thing,  45  Me.  392. 

•i  Bii.xter  V.  Abbott,  7  Gray,  71. 

s  Hansard,  67,  714. 


9G 


TIIK    LKdAL   TKST   or    IN.sAMTY. 


Stiito  V.  FilfiT. 


nieiit  of  error,  it  in  iiroper,  hrit-lly  to  wU'v  to  the  ciriMimstiiiicc  of  the 
liomicido.  'I'liut  tin;  (k't'i'ii(l;iiit  look  the  life  of  liis  wife,  wus  not  dis- 
puleil,  ami  the  only  (U'feiice  umuU'.  or  n-lied  on  was  that  species  of  uien- 
tal  unsoundness,  which  has  received  tlie  name  of  hontieidal  mania. 

Tlie  testimony  tends  to  show  tliat  tii(!  dcfend<int  was  al  "orty-two 

j'ears  of  a<fe,  and  icsided  witli  iiis  wife  and  a  child  (wlio  ...,  n  witness 
on  the  trial),  in  'I'lima  County,  on  a  farni.  aWoutone  mile  distant  from  the 
neijihbors.  lie  had  re»ided  in  that  county  for  over  two  years,  and  had 
served  in  the  army  during  the  war.  He  liad,  during  the  forenoon  of  the 
day  on  wliieh  the  homicide  was  committed,  been  at  work  in  the  usual 
manner.  Shortly  after  dinner  the  neijrhbors,  from  seein<jf  the  lire,  or 
some  other  reason,  visited  the  premises  of  the  defemlant,  and  f(»und  the 
liouse  in  ashes  and  the  (U'feiulant's  wife  within  a  few  feet  of  it,  dead, 
without  clothing  upon  her  person,  one  of  lier  feet  burned  off,  her  fi'a- 
tures  so  destroyed  by  fhe  that  they  could  not  be  lecognized,  and  her 
skull  badly  fractured,  evidently  in  conse<iuence  of  heavy  blows  with  a 
club  or  other  deadly  instrument.  The  di'fendant  himself,  was  fcjund 
(althoutih  he  had  been  seen  walking  around  by  persons  wh<  ipproach- 
ing  the  premises)  lying  near  some  stacks  a  few  rods  froir,  Iwelling- 

house,  with  his  throat  cut  from  ear  to  ear,  and  ver^'  weak  froi..  Jie  loss  of 
blood.  His  hair  and  Avhiskers  were  singed,  and  there  was  a  blister  on 
his  nose,  but  no  evidence  of  lire  on  any  other  part  of  his  person,  and 
his  clothes  were  not  burned. 

There  was  but  one  eye-witness  to  the  tei'rible  occurrence,  —  a  very 
young  daughter  of  the  defendant,  whose  age  is  not  stated  in  the  record  ; 
and  she  saw  only  the  first  portion  of  it.  The  testimony  in  the  case  is 
very  imperfectly  re|)orted,  having  been  taken  down  by  an  unskilled  per 
son.     The  daughter  testified  in  substance,  thus:  — 

"  My  mother  is  dead  —  my  father  killed  her ;  he  struck  her  —  I  don't 
know  with  what ;  he  was  mad  at  her  before  I  left ;  it  was  because  she 
poured  the  butter-milk  out ;  I  left  because  he  was  going  to  kill  me  ;  I 
knew  this  by  the  way  he  acted  ;  mother  told  me  to  go  to  Mr.  P.'s,  —  a 
neighbor's  house,  — it  was  in  front  of  the  house  that  father  struck  her, 
about  a  rod  from  the  house ;  he  shot  the  gun  off  by  her  head ;  my 
father  was  cross  to  her  and  did  everytiiing  mean  that  he  could."  She 
then  narrates  a  quarrel  occurring  some  months  before  between  the 
defendant  and  his  wife  about  a  dog,  and  a  threat  of  the  defendant  to 
her,  that  if  she  did  not  let  him  alone  he  would  stop  her  breath  or  the 
dog's.  "  Motlier  said  nothing  to  me  when  I  left,  as  to  what  the  defend- 
ant was  going  to  do ;  when  I  went  to  Mr.  P.'s,  she  said  she  was  afraid 


ST  ATI:    \.    I'KI.TKU. 


\n 


Tlif   Kviiltiicc  Stilted. 


CO  of  the 
I  IKjt  (lis- 
s  of  uien- 
niu. 

'orty-two 
!i  witness 
t  from  the 
,  iiiul   h!l(i 
[)on  of  the 
the  usiml 
lie  fire,  or 
fouiul  the 
:  it,  (lead, 
',  her  fen- 
1,  ami  her 
ws  with  a 
(vas  found 
•ipproach- 
IwcUinji- 
Aie  loss  of 
blister  on 
>rson,  and 

a  very 

le  record ; 
le  case  is 
iilled  per 

I  don't 
cause  she 
ill  me ;  I 
r.'s,  —  a 
truck  her, 
ead;  my 
'  She 
ween  the 
endant  to 
,th  or  the 
e  defend- 
as  afraid 


he  (liefentlant )  would  kill  us;  my  fiilhcr,  at  this  lime,  was  breiikinj; 
tilings  in  the  house  ;  wiien  I  started  to  iMr.  I'.'s  they  were  out  liet\ve»n 
the  liotisi'  and  fence  ;  we  had  all  eaten  dinner — •  all  sat  down  toj^elher, 
nothinji;  was  said;  1  starteil  to  Mr.  i'.'s  because  his  actions  were  such, 
that  I  thouj^ht  he  was  o;oing  to  kill  me;  I  went  into  the  housi!  and  he 
was  Itrcakim;  things  ;  he  said  notliiuL;;  he  threw  the  lamp  out  of  doors, 
and  broke  the  clock;  said  nothing  when  he  did  this;  papa  and  1  were 
in  the  house  and  ma  <Mif  when  I  started  to  Mr.  I'.'s;  1  saw  father 
strike  molher;  I  was  tin  ii  two  or  three  rods  ol'l" ;  I  do  not  know  with 
what,  or  how  many  times  he  truck  her;  after  ho  went  out  he  had  the 
gnu;  the  end  of  tlie  gun  was  past  mijtlu'r  when  he  Jlred  it  off;  my 
mother  said  she  was  going  to  tell  Uncle  .lacciua  what  he  had  done;  he 
broke  the  clock  and  threw  water  oil  her;  it  made  him  madder  than  he 
was;  this  was  after  the  clock  and  lamp  were  broken;  he  shot  the  Run 
off  first,  and  then  struck  her,  and  they  both  fell,  ami  mother  was  try- 
ing to  get  away  from  him  ;  she  did  iic*  halloo.  " 

There  was  other  evidence  showing  that  they  did  not  at  tiiiu'S  live  hap- 
pily together,  and  that  the  defendant  was  fault-lindiiig  and  cross  toward 
her.     The  phys-iciaii  who  examined  the  deceascil,  gave  it  as  his  opinion 
that  the  blow  upon  her  skull  would  ])roduce  instant  death.     When  Dr. 
Daniels  afterwards  dressed  the  defendant's  wound  in  his  throat  he  had 
a  conversation  with  him  in  respect  to  the   homicide.     The  defendant 
said,  ''  that  the  reason  ho  shot  at  her  was  that  he  wanted  to  scare  her. 
lie  said  he  wanted  to  destroy  everything,  so  that  s'lc  would  not  get 
anything,  and  this  was  the  reason  why  ho  burned  the  house.     I  asked 
him  why  he  struck  his  wife.    He  said  ho  did  not  strike  her;  that  the  last  he 
saw  of  her  she  was  going  toward  Buckingham's."     The  doctor  asked 
the  defendant  if  he  was  not  sorry  that  things  were  not  as  they  were  in 
the  morning;  to  which  he  replied,  "  I  do  not  know  as  I  am."     On  tl  e 
next  day  after  the  fatal  occurrence  ho  told  another  witness  the  dilliculty 
about  the  butter-milk,  and  said  his  wife  "struck  him  in  the  face  with  a 
plate  ;  that  she  went  on  throwing  things  out  of  the  house ;  he  told  her 
to  stop ;  she  threatened  to  report  him  to  the  trustees ;  he  then,  he  said, 
took  down  his  gun  and  shot  at  her;  did  not  intend  to  kill  her ;  that  he 
was  so  mad  that  his  passion  got  the  better  of  him,  and  about  what  hap- 
pened after  that  he  had  nothing  to  say.     I  asked  him  if  he  intended  to 
kill  the  little  girl  if  he  caught  her.     He  replied  he  did  not  intend  to 
hurt  her."     This  conversation  took  place  at  the  instance  of  the  defend- 
ant, who  asked  a  person  present  to  go  out  of  the  room  so  that  he  could 
talk  with  the  witness. 

7 


t 


98 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Felter. 


A  great  number  of  witnesses  who  had  known  the  defendant  for  many 
years,  testified  that  they  never  saw  anything  strange  in  his  conduct,  or 
anything  to  lead  them  to  suspect  that  he  was  of  unsound  mind. 

The  defendant  stated  that  he  cut  iiis  throat  with  a  razor,  and  told 
■where  it  could  be  found.  There  was  testimony  tending  to  show,  or 
from  which  it  might  be  inferred,  that  the  defendant  had  tried  to  rescue 
his  wife  from  the  flames.  That  is,  it  was  testified  by  the  physicians  that 
the  blow  upon  her  head  would  kill  her  instantly,  and  it  would  seem  that 
after  the  blow  was  dealt  she  was  removed  by  the  defendant  from  the 
house,  after  she  had  been  burned  in  the  manner  before  described. 
There  was  also  testimony  from  which  it  might  be  inferred  that  the  de- 
fend.ant  cut  his  own  throat  before  he  left  the  burning  dwelling.  It  was 
admitted  by  the  State  that  the  defendant  intended  to  take  his  own  life 
when  he  cut  his  own  throat.  There  were  no  witnesses  upon  the  stand 
who  knew  of  or  testified  respecting  the  alleged  insanity  of  the  defend- 
ant when  at  home,  or  the  alleged  insanity  of  his  father. 

The  medical  witnesses  examined  on  the  trial,  as  not  unfrequently  hap- 
pens, differed  in  opinion  as  to  the  defendant's  sanity.  Most  of  these 
witnesses,  however,  had  given  to  the  subject  of  insanity  no  special 
attention. 

The  court  charged  the  juiy  that  "  if  the  defendant  at  the  time  of  the 
commission  of  the  act  —  if  he  did  coinniit  it  —  was  laboring  under 
such  a  degree  of  insanitj'^  asirresistilily  and  uncontrollably  forced  him  to 
commit  the  act,  and  if  he  did  not.  at  the  time  of  the  act,  have  reason 
sufficient  to  discriminate  between  riglit  and  wrong  in  reference  to  the 
act  about  to  be  committed  by  him,  it  is  your  duty  to  acquit  v/holly.  In 
other  words,  if  you  believe  from  the  evidence  tliat  the  defendant's  mind, 
at  the  time  of  committing  the  act  —  if  he  did  commit  it  —  was  so  in- 
sane that  he  did  not  know  the  nature  of  the  crime,  and  did  not  know 
tluit  he  ivas  doing  torong  hi  doing  the  acf.  it  is  your  duty  to  acquit  him 
altogether. ' ' 

The  defendant's  counsel  complain  of  this  instruction,  and  in  their 
written  argument  make  to  it  tliis  objectioii:  "  The  court  did  not  state 
the  law  ;  only  a  part  of  it.  It  told  the  jury  that  if  the  defendant  had 
sufficient  mind  to  discriminate  between  riglit  and  wrong  he  was  respon- 
sible. This  is  not  sufficient.  He  must  ha^e  mind  enough  to  know  tliat 
he  will  be  held  responsible  for  his  act." 

The  specified  objection  to  this  instruction  does  not  call  u[)on  us  to 
enter  at  length  on  an  examination  of  the  subject  of  insanity  as  a  defence 
to  alleged  criminal  acts.  The  instructions  as  given  are  substantially  as 
the  defendant's  counsel  in  their  argument  claim  they  should  have  been. 


i 


RIGHT    AND   WRONG   TEST. 


}>9 


or  many 
duct,  or 

and  told 
show,  or 
o  rescue 
ians  that 
eem  that 
'rotn  the 
ascribed, 
the  de- 
It  was 
own  life 
he  stand 
J  defend- 

jntly  hap- 
,  of  these 
0  special 

ne  of  the 

iig  under 
d  him  to 
0  reason 

e  to  the 
Uy.  In 
's  mind, 

ras  so  in- 
ot  know 
quit  him 

in  their 
not  state 
lant  had 

respon- 
:now  tliat 

X)n  us  to 
defence 
itially  aa 
Ive  been, 


Views  of  llie  Court. 


I 


and  are  not,  as  we  find  upon  comparison,  essentially  different  on  this 
point  from  those  asked  to  be  given  on  the  ptii-t  of  the  defendant. 

With  reference  to  the  right  and  wrong  test  referred  to  in  the  instruc- 
tions given  it  will  be  seen  that  the  court  does  not  adopt  this  criterion  as 
a  general  one,  that  is  the  court  does  not  say  if  the  defendant  has  capac- 
ity to  distinguish  between  right  and  wrong  generally,  he  is  criminally 
responsible. 

But  it  held  that  if  at  the  time  and  with  respect  to  the  act  about  to  be 
committed,  the  defendant  had  not  reason  enough  to  discriminate  between 
right  and  wrong  with  reference  to  that  act,  had  not  reason  enough  to 
know  the  nature  of  the  crime,  and  did  not  knoiothat  he  tvas  doing  wrong 
in  ommitting  it,  he  is  not  criminally  punishable.  The  court  in  sub. 
stance  held  that  if  the  defendant's  reason  was  so  far  gone  or  over- 
whelmed that  his  pcrcei)tion  of  right  or  wrong  with  respect  to  the 
contemplated,  act  was  destroyed,  if  he  did  not  rationall}'  comprehend 
the  character  of  the  act  he  Avas  about  to  commit,  he  should  be  acquitted. 
The  instruction  as  given  finds  a  full  support  in  the  judgments  of 
courts  the  most  respectable.' 

On  the  other  hand,  the  right  and  wrong  test,  even  when  guarded  as 
carefully  as  in  the  court's  instruction,  has  been  very  vehemently  opposed 
as  incorrect  and  delusive, ^  especially  as  a  criterion  of  responsibility  in 
cases  of  moral  insanity. 

As  applied  to  the  facts  of  this  case,  a  preferable  mode  of  instructing 
the  jury  will  be  briefly  indicated  below. 

In  my  opinion  the  right  and  wrong  test  is  not  to  be  applied  too 
strictly,  and  belongs  more  properly  to  intellectual  than  to  moral 
insanity.'  Intelligent  medical  observers  who  have  made  insanity  a 
special  study,  insist  that  it  not  unfrequently  happens  tliat  persons  un- 
doubtedly insane,  and  who  are  confined  on  that  account  in  asylums,  are 
able  to  distinguish  right  from  wrong,  and  to  know  the  moral  qualities 
of  acts. 

Perliaps  the  profession  of  law  has  not  fully  kept  pace  with  that  of 
medicine  on  the  subject  of  insanity.  And  yet  medical  theoiists  have 
propounded  doctrines  respecting  insanity  as  an  excuse  for  criminal  acts, 
wlilfli  a  due  regard  for  the  safety  of  the  community  and  an  enlightened 
public  policy  must  prevent  jnrists  from  adopting  as  part  of 'the  law  of 
the  land.     If,  as  the  court  charged,  the  defendant  committed  the  act 


'  Freeman  r.  People,  4  Denio.  27;  and 
approved  and  followed  in  the  recent  case 
of  Willis  V.  People,  32  N.  Y.  715;  State  v. 
Hraiiilon,  8  Jones  N.  C.  (L.),463;  Common- 
wealth r.  Mosler,4  Pa. St.  266;  McNagbten'a 


Case,  10  01.  &  F.  210;  Oxford's  Case,  9  C.  &  P. 
525. 

2  Ray,  sects.  16,  17,  18,  16,  et.  serj. ;  Whar- 
ton &  Stillo  (2d  Kd.)  sect.  61);  and  see 
Smith  V.  Commonwealth,  1  Duv.  (Ky.)  224. 


ii 


100 


THE   LEGAL   TEST   OF    INSANITY. 


Statu  V.  Fc'lter. 


I' 


from  an  irresistible  and  uncontrollable  insane  impulse,  not  knowing  it 
was  wrong,  it  is  clear  that  iie  is  not  criminally  responsible.  But  sup- 
pose he  knew  it  was  wrong,  but  yet  was  driven  to  it  by  an  uncontrolla- 
ble and  irresistible  impulse,  arising,  not  from  natural  passion,  but  from 
an  insane  condition  of  the  mind,  would  he  then  be  criminally  re- 
sponsible ? 

Most  of  the  cases  before  cited  have  recognized  the  doctrine,  that  there 
is  a  responsibility  for  the  criminal  act  if  the  accused  knew  at  the  time 
it  was  wrong;  or,  as  it  Avould  be  better  expressed,  if  he  rationally  com- 
prehended the  character  and  ccmsequences  of  the  act.  But,  if,  from  the 
observation  and  concurrent  testimony  of  medical  men  who  make  the 
study  of  insanity  a  specialty,  it  shall  be  definitely  established  to  be 
true,  that  there  is  an  unsound  condition  of  the  mind,  that  is,  a  diseased 
condition  of  the  mind  in  which,  though  a  person  abstractly  knows  that 
a  given  act  is  wrong,  he  is  yet,  by  an  i)isane  impulse,  that  is,  an  impulse 
proceeding  from  a  diseased  intellect,  irresistibly  driven  to  commit  it  — 
the  law  must  modify'-  its  ancient  doctrines  and  recognize  the  truth,  and 
give  to  this  condition,  when  it  is  satisfactorily  shown  to  exist,  its  excul- 
patory effect.  It  is  not  too  much  to  say,  that  both  medicine  and  law 
recognize  now  the  existence  of  such  a  mental  disease  as  homicidal  in- 
sanity;  the  remaining  question  in  jurisprudence  being  what  must  be 
shown  to  make  it  available  as  a  defence  to  a  charge  of  murder.* 

In  a  recent  case  in  Kentucky,  it  is  said  that  moral  insanity  is  recog- 
nized 1)}' medical  jurists,  and  that  "the  true  test  of  responsibility  is, 
whether  the  accused  had  sufficient  reason  to  know  right  from  wrong, 
and  whether  or  not  he  had  sulRcient  power  of  control  to  govern  his 
actions." - 

If  this  want  of  power  of  control  arose  from  the  insane  condition  of  the 
mind  of  the  accused,  he  should  not  be  held  responsible.  But  if  want  of 
power  to  control  his  actions  arose  f lom  violent  and  ungovernable  pas- 
sions, in  a  mind  not  diseased  or  unsound,  he  would  and  ought  to  be 
criminall}-  punishable  for  his  acts. 

Of  all  medical-legal  questions,  those  connected  with  insanity  are  the 
most  difficult  and  per[)lexing. 

Without  further  discussion,  we  conclude  by  stating  what,  under  the 
facts  of  this  case,  would  be  safe  and  proper  directions  to  be  given  to 
the  jury  respecting  the  point  under  consideration.  The  jur^',  in  sub- 
stance, should  be  told  that  if  the  defendant's  act  in  taking  the  life  of 


»  See  Wharton  &  Stille's  Med.  Jur.,  pects. 
61, 178. 


2  Smith  r.  roititnonwealth.l  Diiv.  224.  See 
•also  Scott  r.  Coniinonwi'iilth,  4  iMclc.  (Ky.) 
227 ;  cumpui'u  blait)  v.  liruuUuu,  supra. 


PASSION   AND    INSANITY  DISTINGUISHKl) 


101 


)wing  it 
5ut  sup- 
jntroUa- 
tut  from 
lally  re- 

lat  there 
the  time 
lly  coTi- 
from  the 
luike  the 
'd  to  be 
diseased 
ows  that 
I  impulse 
imit  it  — 
uth,  and 
ts  excul- 
!  and  law 
icidal  in- 
must  be 
1 

reeog- 
)lilty  is, 
wrong, 
)VL*rn  Lis 

n  of  the 
want  of 
jle  pas- 
it  to  be 

are  the 

ider  the 
riven  to 
in  sub- 
e  life  of 

.224.  See 

}lc.  (Ky.) 
'ra. 


Jury  may  bo  Cautioned  as  to  the  Di-fcnci'. 


his  wife  —  if.  he  did  take  it  — was  caused  by  mental  disease  or  unsound- 
ness, which  dethroned  his  reason  and  judgment  with  respect  to  that  act, 
which  de.stro3'0(l  his  power  rationally  to  comprehend  the  nature  and 
consequences  of  that  act,  and  which,  overpowering  his  will,  irresistibly 
forced  him  to  its  commission,  then  he  is  not  amenable  to  legal  punish- 
ment. But  if  the  jury  believe  from  all  the  evidence  and  circumstances, 
that  the  defendant  was  in  the  possession  of  a  rational  intellect  or  sound 
mind,  and  allowed  his  passions  to  escape  control,  then,  though  passion 
ma}'  for  the  time  being  have  driven  reason  from  her  seat  and  usurped 
it,  and  have  urged  the  defendant  with  a  force  at  the  moment  irresistible 
to  desperate  acts,  he  cannot  claim  for  such  acts  the  protection  of  in- 
sanity. 

"Whether  passion  or  insanity  was  the  ruling  force  and  controlling 
agency  which  led  to  the  homicide  —  in  other  words,  Avhether  the  defend- 
ant's act  was  the  insane  act  of  an  unsound  mind,  or  the  outburst  of  vio- 
lent, reckless,  and  uncontrolled  passion  in  a  mind  not  diseased, — is 
the  jiractical  question  which  the  jury  should  be  told  to  determine  accord- 
ing to  their  best  judgment  from  the  evidence  before  them.  If  the}' 
believe  that  the  homicide  was  the  direct  result  or  offspring  of  insanity, 
they  should  acquit;  if  of  poss?'o7i,  unless  it  be  an  insane  passion,  they 
should  convict.  This  is  a  much  more  practical  inquiry  than  to  direct 
their  attention  solely  to  the  defendant's  capacity  at  the  time  to  distin- 
guish right  from  wrong —  an  inquiry  which  must  often  bo  speculative 
and  difficult  of  determination  from  the  data  possible  to  be  laid  before 
tlie  jury,  and  which,  as  a  test  or  criterion  of  responsil)ility,  rather  be- 
longs, when  applicable,  to  what  is  known  as  intellectual,  as  distinguished 
from  moral  insanity'. 

As  the  case  w^ill  have  to  be  retried,  we  have  briefly  indicated  our  gen- 
eral views  as  to  the  instructions  proper  to  be  given  to  the  jury  on  the 
subject  of  criminal  capacity  and  res[)onsibilit3'.  Where  homicidal  in- 
sanity is  reliec  on,  the  court  may  very  properly  sa}'  to  the  jury  that 
tliey  shonl'J  indulge  in  no  prejudice  against  the  defence,  but  give  it 
tin  ugh  If  ul,  thorough,  dispassionate  consideration  ;  3'etthat  the  interest 
of  society  requires  that  it  ought  not  to  be  regarded  as  sufficient  to  ex- 
culpate unless  the  jury  believe  from  the  evidence  that  the  propensity  to 
commit  the  act  existed  in  such  violence  as  to  subjugate  the  intellect, 
control  the  will,  and  render  it  impossible  for  the  accused  to  do  other- 
wise than  to  yield  to  the  insane  impulse.  In  other  words,  it  should 
appear  not  onl}'  that  the  mind  of  the  accused  was  insane,  but  that  the 
act  for  which  he  is  indicted  was  the  direct  offspring  of  such  insanity ; 
this  being  shown,  responsibilitj'  is  annulled,  but  not  otherwise. 


Vr 


102 


THE   LEGAL   TEST   OF   INSANITY. 


State  V.  Mewherter. 


Because  of  the  error  of  the  court  in  excluding  material  portions  of 
the  affidavit  for  a  continuance,  the  judgment  is  reversed  and  the  cause 
remanded  for  a  new  trial. 

Reversed. 


UNCONTROLLABLE  IMPULSE  — INSANE  DELUSION— TEST  OF  INSAN- 

ity— evidence  of  appearance  and  conduct. 
State  v.  Mewherter. 


[46  Iowa,  88.] 
In  the  Supreme  Court  of  Iowa,  June  Term,  1877. 


Hon.  James  H.  Rothuock,  Chief  Justice. 
"    Joseph  M.  Beck, 
"    Austin  Adams, 
"    William  H.  Sekvers, 
•«    James  G.  Day. 


-  Judges. 


1.  TTnoontroUable  Impulse  —  When  a  Defence.—  The  uncontrollable  impulse  which  will 

relieve  a  perBon  from  the  consequences  of  the  commission  of  u  crime,  must  have  its 
origin  alone  in  a  diseased  mind. 

2.  Test  of  Insanity.  — To  excuse,  the  mental  disease  must  be  such  as  to  destroy  the  power 

to  comprehend  the  nature  and  consequences  of  the  act,  and  to  overpower  the  will. 

3.  Insane  Delusion—  When  an  Excuse.— One  who  commits  a  crime  under  the  influence 

of  an  insane  delusion  is  punishable,  if  he  knew  ut  the  time  that  he  was  acting  contrary 
to  law. 

4.  Appea  ance  and  Conduct  of  Prisoner.  —  In  considering  the  question  of  the  sanity  of 

a  prisoner,  the  jury  may  properly  be  directed  to  consider  his  appearance,  conduct,  and 
language  prior  to  the  time  of  the  commission  of  the  alleged  crime. 

Appeal  from  Pottawattamie  District  Court. 

The  defendant  was  indicted  for  murder  in  the  first  degree,  in  killing 
Joseph  W.  Hatton  in  Pottawattamie  County,  and  upon  conviction  for  the 
crime  was  sentenced  to  imprisonment  in  the  penitentiary  for  life.  He 
now  appeals  to  this  court, 

Montgomery  &  Scott,  for  appellants. 

J.  F.  McJunkin,  Attorney-General,  John  II.  Keatley,  and  C.  E.  Rich- 
ards, for  the  State. 

Beck,  J.  — 

(Omitting  rulings  on  other  points. ) 

Testimony,  tending  to  prove  the  insanity  of  the  defendant  at  the 
time  of  the  homicide  was  introduced  in  his  behalf.  It  was  claimed  that 
this  condition  of  mind  had  existed  for  some  time.     A  witness  for  the 


EVIDENCE  OF   OPINION. 


103 


Tlie  Facts  of  the  Case. 


State  testified  that  during  the  time  of  the  alleged  insanity  he  had  two 
conversations  with  the  defendant,  and  saw  him  often,  but  observed 
nothing  unusual  in  his  actions,  and  that,  in  the  language  of  the  witness, 
' '  so  far  at  I  could  see,  he  was  as  regular  and  sane  as  the  first  day  I  saw 
him."  Upon  the  cross-examination,  the  counsel  for  defendant  asked 
the  witness  if  he  thought  himself  competent  to  give  an  opinion  as  to 
defendant's  sanity.  An  objection  to  the  question  was  sustained  on  the 
gi-ound  that  it  was  not  proper  in  cross-examination.  The  ruling  is 
complained  of  as  erroneous.  We  think  it  was  correct.  The  witness 
had  stated  facts,  and  not  his  opinion  of  defendant's  sanity.  The  ques- 
tion, therefore,  did  not  relate  to  matters  brought  out  upon  the  direct 
examination. 

Other  objections  to  the  proceedings  and  judgment  are  based  upon  the 
rulings  of  the  court  in  giving  and  refusing  instructions,  and  in  overrul- 
ing a  motion  for  a  new  trial  on  the  ground  that  the  verdict  is  in  conflict 
with  the  evidence  and  the  law  as  given  to  the  jury  by  the  court.  The 
consideration  of  the  objections  demands  attention  to  the  testimony  given 
upon  the  trial.  We  will  proceed  to  state  briefly,  the  purport  of  the  evi- 
dence, so  far  as  it  is  necessary  for  the  proper  understanding  of  the 
questions  we  are  called  upon  to  discuss  and  determine. 

The  defendant,  at  the  time  of  the  homicide,  was  a  farmer,  and  about 
fifty-two  years  of  age.  He  had  sons  and  daughters  of  mature  years, 
and  others  yet  in  childhood.  About  one  year  prior  to  this  event  he  had 
employed  Dr.  Joseph  W.  Hatton,  for  the  killing  of  whom  he  was  con- 
victed in  the  court  below,  to  attend  upon  his  wife  iu  child-bii-th.  The 
evidence  tends  to  show  tliat  defendant  charged  Dr.  Hatton  with  mal- 
practice in  his  professional  treatment  of  the  case,  and  with  improper 
exposure  of  tlie  person  of  his  wife,  and  other  cruel  aud  unprofessional 
conduct,  whereby  the  health  of  the  patient  was  permanently  impaired, 
and  her  womanly  feelings  outraged  and  wounded.  To  recover  for  these 
injuiies  to  the  health  of  his  wife,  defendant  brought  and  prosecuted  an 
action  against  Dr.  Hatton,  which  resulted  favorably  for  the  physician. 
After  the  confinement  of  his  wife,  and  up  to  the  killing  of  Dr.  Hatton, 
defendant  exhibited  violent  excitement  upon  the  subject  of  the  alleged 
injuries  to  his  wife  and  himself.  They  were  the  subject  of  his  conver- 
sation to  many  persons,  and  he  rehearsed  the  incidents  connected  there- 
with in  public  places,  in  the  hearing  of  all  who  would  give  heed 
thereto.  In  these  conversations  he  indulged  in  violent  denunciations  of 
the  physician,  accompanying  it  with  great  profanity,  and  declared  he 
lacked  skill  and  ability  in  his  profession,  and  was  destitute  of  qualities 
necessary  to  fit  him  therefor.     He  made  threats  against  the  person  and 


104 


THK   LEGAL   TEST   OF    INSANITY. 


Stute  V.  Mewlierter. 


life  of  Dr.  Ilatton,  declaring  that  it  was  his  purpose  to  drive  the  pliysi- 
cian  from  the  country  by  tlie  suit,  and  if  it  failed  in  such  object,  lie 
would  shoot  the  doctor.  These  threats  wore  frequent,  and  those  made 
after  the  suit  was  terminated  against  defendant  were  unaccompanied  by 
(pialification  or  condition.  Tliey  were  communicaled  to  Dr.  Hatton, 
who  armed  himself  for  protection  against  defendant,  to  whom  this  fact 
was  soon  made  known.  On  Sunday,  the  18th  of  July,  187"),  Dr.  Ilat- 
ton was  called  to  visit,  professionall3',  a  patient  living  about  a  mile  and  a 
half  from  defendant's  place  of  residence.  The  father  of  the  pliysician, 
a  man  of  seventy-two  years  of  age,  accompanied  him  in  his  buggy,  and 
they  passed  witliin  a  quarter  of  a  mile  of  defendant's  house.  Tliey  also 
drove  near  the  house  of  a  neighbor  where  defendant  was  at  the  time. 
lie  was  informed  of  the  fact  of  their  passing  the  house  and  immediately 
left,  after  exi)ressing  his  want  of  confidence  in  the  physician's  skill,  and 
went  in  the  direction  of  his  own  house.  He  had  come  but  a  short 
time  before  to  this  neighbor's  from  the  house  of  the  iiatient,  who  had 
informed  him  of  the  fact  that  Dr.  Ilatton  was  expected,  and  would  soon 
arrive.  Upon  receiving  this  information  he  expressed,  angrily,  his  ^.ant 
of  confidence  in  the  skill  of  the  physician.  In  returning  from  the  vis  t 
to  the  p;itient  the  road  travelled  by  Dr.  Ilatton  and  his  father  took  them 
again  near  defendant's  hoiise.  They  reached  this  place  not  long  after 
defendant  had  left  his  neighbor's  house  as  aliove  stated.  The  incidents 
immediately  connected  with  the  act  of  defendant,  which  resulted  in  the 
killing  are  related  lij'  the  father  of  Dr.  Hatton  in  the  following  lan- 
guage: "After  we  got  around  the  willows,  we  saw  defendant  going 
through  the  fence  with  his  gun  in  his  hand,  east  of  us,  —  might  iiave 
been  eighty  or  a  hundred  yards,  —  defendant  came  through  his  fence 
across  first  track  of  road  to  second  road ;  came  in  front  of  doctor  when 
pretty  near  his  gate  ;  we  were  driving  on  a  trot ;  he  came  down  the  road 
with  his  gun  ;  thumb  looked  like  on  the  cock ;  he  raised  up  and  the  doc- 
tor said  'stop.'  This  is  all  the  doctor  said,  when  gun  went  off; 
gun  about  three  feet  long;  don't  think  it  was  a  second  after  he  raised 
up  until  he  shot;  don't  know  whether  he  took  aim  or  not;  we  had  a 
two -stepped  buggy ;  my  left  foot  was  on  the  upper  step  ;  when  the  gun 
went  off  the  doctor  fell  over  my  right  thigh,  and  it  scared  the  team ; 
they  went  on ;  I  went  out  near  Mewherter's  gate  ;  looked  back  and  saw 
defendant  behind,  standing  in  the  path,  about  half  bent,  with  gun  pre- 
sented like  he  was  going  to  shoot  again,  but  he  did  not;  looked  back 
again  ;  defendant  said,  '  Oh,  God  damn  you,  I  have  killed  you  ;  '  that 
was  all  defendant  said."  The  shot  took  effect  in  the  abdomen, and  the 
doctor  lived  about  two  weeks. 


STATE    V,    MEWHERTER. 


105 


Evidence  in  the  Caxe. 


lie  physi- 
bject,  he 
jse  made 
lanied  by 
Hattou, 
this  fact 
Dr.  Ilat- 
lile  and  a 
hysiciaii, 
ggy,  fvnd 
rhey  also 
the  tune, 
nediately 
skill,  and 
t  a  short 
who  had 
)uld  soon 
his  ^ant 
,  the  vis  t 
pok  them 
Dng  after 
incidents 
3d  in  the 
'inij  Ian- 
nt  going 
ght  have 
lis  fence 
or  when 
Ithe  road 
he  doc- 
nt  off; 
!  raised 
e  had  a 
the  gun 
team; 
nd  saw 
un  pre- 
ed  back 
; '  that 
and  the 


The  fact  of  killing  was  not  contested  at  the  trial ;  the  defence  wholly 
relied  upon  was  the  alleged  insanity  of   defendant.     The  testimony 
tended  to  establish  that  after  the  confinement  of   defendant's  wife? 
when  she  was  treated  ])y  Dr.  Ilatton,  defendant's  disposition,  temper 
and  deportment,  whenever  that  subject  was  spoken  of  by  liim,  or  his 
mind  was  directed  toward  the  physician,  were  unlike,  in  their  manifesta- 
tions, anything  before  exhibited  by  him.     He  was  violent,  unreasonable 
and  extremely  denunciatory  and  bitter  in  his  expressions.     Ills  appear- 
ance, too,  on  such  occasions  was  changed,  exhiltiting  great  excitement 
and  nervousness.     His  wife  and  children  testified  that  he  was  wakeful 
and  restless  at  night,  would  arise  from  his  bed  and  arm  himself,  and,  as 
an  explanation  of  his  actions,  would  declare  he  was  guarding  his  wife. 
He  would  often  declare  that  his  troubles  were  more  than  he  could  bear, 
and   wlun  the  name  of  Dr.  Hatton  was  mentioned  he  would  become 
pale,  wijd,  and  nervous.     His  appetite  was  poor,  aud  he  l)ecame  thin. 
They  state  that  his  actions  were  unusual  and  strange  ;  but  neitlier  they 
nor  other  witnesses  testify  to  any  change  in  his  mind  or  manner  u\h)U 
any  other  subject  than  that  of  his  troubles  with  Dr.  Hatton.     There  is 
no  evidence  tending  to  prove  that  upon  all  other  subjects  he  was  not 
reasonable  ;  and,  indeed,  it  is  not  so  claimed  on  the  part  of  the  defence. 
Upon  evidence  of  the  character  indicated  above,  the  cause  was  sub- 
mitted to  the  jury  upon  numerous  instructions  upon  the  law  of  the  case 
given  by  the  court.     After  we  have  considered  the  correctness  of  the 
ruling  in  excluding  certain  instructions  asked  ]>}'  defendant  those  given 
will  claim  our  attention. 

Counsel  for  the  defendant  presentetl  seven  separate  instractions  which 
they  requested  to  be  given  to  the  jury.  They  all  related  to  the  subject 
of  insanity,  which  was,  as  before  stated,  the  sole  ground  of  defence 
relied  upon.  These  instructions  present  rules  to  guide  the  jury  in  de- 
termining defendant's  accountability.  The  natui'c,  character,  and  ex- 
tent of  mental  disease  which  renders  the  subject  irresponsible  for  acts 
otherwise  criminal  are  stated  therein.  The  substance  of  these  instruc- 
tions, except  the  fifth,  is  fully  and  fairly  embraced  in  the  ninth,  tenth, 
eleventh,  and  twelfth,  given  upon  the  court's  own  motion.  'I'hese  will 
be  hereafter  considered.  The  refusal  to  repeat  rules  announced  in  in- 
structions, by  giving  them  in  another  form  as  asked  b}'  either  party, 
has  often  been  held  not  to  be  error. 

The  fifth  instruction  just  referred  to  is  in  the  following  language  so 
far  as  it  treats  of  the  question  of  insanity:  'If  *  *  *  the  pro- 
pensity in  tiie  defendant,  from  whatever  cause  it  may  have  originated, 
to  commit  the  act,  existed  in  such  violence  as  to  subject  the  intellect, 


106 


THE   LEGAL  TEST   OF   INSANITY. 


State  V.  Mt'wherter. 


control  the  will,  and  render  it  impossible  for  the  accused  to  do  other- 
wise than  yield  to  the  insane  impulse  by  which  he  was  controlled  and 
the  act  was  the  offspring  of  such  insanity,"  in  such  case  "  neither  the 
State  nor  the  interest  of  society  demanded  such  conviction."  A  glance 
will  suffice  to  discover  the  error  of  the  rule  here  presented.  The  pro- 
pensity  —  the  disposition  to  c<jmmit  the  crime,  is  not,  as  it  should  be, 
limited  to  the  effect  of  a  diseased  or  insane  mind.  Under  the  instruc- 
tion it  may  have  had  its  origin  in  anger,  revenge,  or  other  passion  not 
springing  from  an  insane  mind,  or  may  have  been  the  result  of  drunken- 
ness. It  cannot  be  claimed  that  an  uncontrollable  propensity,  which  is 
the  offspring  of  an  evil  passion,  will  shield  the  perpetrator  of  crime 
from  punishment.  The  subject  demands  no  further  attention.  The 
instruction  was  properly  refused. 

The  seventh  instruction  is  in  the  following  language: — 

"  If  the  jury  believe,  from  the  evidence,  that,  at  the  time  of  the 
commission  of  the  alleged  homicide,  the  defendant  was  laboring  under 
a  diseased  condition  of  the  mind,  that  he  was  insane  on  the  subject  of 
the  manner  in  which  the  deceased  had  treated  his  wife,  and  on  the  sub- 
ject of  deceased,  with  others,  having  formed  a  conspiracy  to  take  his, 
defendant's  life,  then  the  jury  should  acquit  the  defendant." 

It  will  be  at  once  observed  that  this  instruction  fails  to  present  the 
condition  that  the  mental  disease  must  have  destroyed  the  power  of  de- 
fendant to  comprehend,  rationally,  the  nature  and  consequence  of  his 
act,  and  overpowered  his  will,  which  must  exist  in  order  to  render  him 
free  from  accountability  for  his  acts.' 

We  will  here  tlepart  from  the  order  i)ursued  by  defendant's  counsel 
in  considering  their  objections  to  the  record,  and  take  up  the  instructions 
given  by  the  court  upon  tiie  subject  of  insanity.  The  rulings  of  the 
court  upon  the  law  governing  this  defence  will  thus  be  considered  con- 
secutively. 

After  defining,  in  the  ninth  instruction,  total  insanity  or  madness,  and 
informing  the  jury  that  one  afflicted  with  such  mental  disease  is  not 
criminally  responsible,  the  court  proceeds,  in  the  tenth  instruction,  to 
announce  the  rule  of  law  applicable  to  partial  insanity,  which,  it  was 
claimed  in  the  defence,  was  tlie  character  of  the  alleged  disorder  of  the 
mind  of  defendant.  The  jury  were  inform  d  that  if  defendant,  on  ac- 
count of  his  mental  disease,  was  not  able  to  distinguish  right  and  wrong, 
and  had  not  knowledge  and  understanding  of  the  character  and  conse- 
(juences  of  his  act,  and  power  of  will  to  abstain  from  it,  he  was  not 
legally  a  responsible  being.     This  is  the  certain  meaning  of  this  instruc- 


'  state  V.  Fclter,  25  Iowa,  68. 


PARTIAL    INSANITY. 


107 


Insane  Delusion. 


do  other- 
ruUed  and 
either  the 
A  glance 
The  pro- 
should  be, 
le  instruc- 
ission  not 
!  drunken- 
^  which  is 
■  of  crime 
ion.     The 


ime  of  the 
ring  under 
subject  of 
)n  the  sub- 
o  take  his, 

|)resent  the 

Iwer  of  de- 

nce  of  his 

'ender  him 

,'s  counsel 

istructions 

|ngs  of  the 

iered  con- 

Iness,  and 
base  is  not 
ruction,  to 
jch,  it  was 
her  of  the 
Int,  on  ac- 
Ind  wrong, 
Ind  conse- 
le  was  not 
Is  instruc- 


tion, expressed  with  sufficient  clearness.  It  is  in  harmony  with  the  rule 
on  the  subject  recognized  by  this  court  in  State  v.  Felter.^ 

The  eleventh  and  twelfth  instructions  given  to  the  jury  present  sub- 
stantially the  doctrines  announced  in  tlie  answer  of  the  judges  to  the 
first  and  fourth  questions  propounded  to  them  by  the  House  of  Lords  in 
McNaghten's  Ccise.^  They  may  be  briefly  stated  as  follows:  1.  In 
case  of  partial  insanity,  or  delusion,  as  to  certain  facts  and  matters, 
and  the  accused,  as  to  other  facts  and  matters,  is  sane,  if  the  act  with 
which  he  is  charged  was  done  under  the  influence  of  insane  delusion, 
with  the  view  of  redressing  or  avenj^ing  some  supposed  injury,  or  of 
accomplishing  some  supposed  good,  he  is  punishable,  if  he  knew  at  the 
time  of  the  commission  of  the  crime  that  he  was  acting  contrary  to  law. 
4.  In  case  of  partial  delusion,  when  the  subject  is  not  in  other  respects 
insane,  the  law  considers  him  as  to  his  responsibility,  in  the  same  con- 
dition as  if  the  facts,  in  regard  to  Avhich  his  delusion  exists,  were  real. 
Therefore,  if  in  his  delusion  he  supposes  another  is  about  to  take  his 
life,  he  would  be  exempt  from  jjunishment  if  he  kills  the  person  in,  as 
he  believes,  self-defence.  But  if  the  delusion  was  to  the  effect  that  he- 
had  suffered  a  serious  injury  from  another  man,  and,  in  revenge  therefor, 
the  accused  kills  that  man,  the  crime  will  be  punished  bj'  the  law,  not- 
withstanding the  perpetrator  of  the  deed  was  affected  with  a  disease  of 
the  mind. 

These  doctrines,  it  is  believed,  have  the  support  of  the  adjudged 
cases  of  this  country  and  England. ^  They  are  not,  we  are  aware,  fully 
approved  by  others  entitled  to  respect."* 

They  have  been  assailed  with  great  force  by  another  able  writer  upon 
the  medico-legal  science.^ 

Counsel  for  defendant  raise  many  objections  to  the  instructions 
given  by  the  court,  which  are  based  upon  criticisms  of  the  language 
rather  than  upon  the  very  substance  of  the  principles  announced  therein. 
We  will  notice  one  or  two  which  will  present  fairly  the  character  of  all 
of  these  objections. 

The  second  instruction  defines  correctly  €he  different  degrees  of  hom- 
icide. Murder,  the  jury  are  informed,  is  the  killing  of  a  human  being 
with  malice  aforethought,  either  expressed  or  implied.  The  crime,  they 
are  then  told  possesses  two  elements:  First,  the  killing  of  a  human 
being ;  second,  the  malice.     The  court  proceeds  clearly  enough  to  ex- 


1  25  Iowa,  67. 
s  10  CI.  &  Fin.  200. 

3  See  1  Whar.  &S.  Med.  Jur.,  sects.  125, 126, 
et  se(/.,  and  cases  cited 
*  See   sect.  130  of   the  book   just  cited, 


and  Balfour  Browne's  Med.  Jur.  of  Insan. 
IS,  1!). 

'•>  Ray's  Med.  Jur.  of  Insan.,  sects.  29,  39. 

3;i6. 


108 


THE    LEGAL   TEST    OF    INSANITY. 


! 


HtiitL'  V.  .Sticklcv. 


plain  the  term  malice  and  points  out  when  it  will  be  presumed  to  be 
of  the  dcsjree  or  character  which  constitutes  niurtler.  But,  in  using  the 
term  malice  in  these  explanations,  the  adjective  oforethonr/ht  is  not  used 
in  connection  with  it.  This  is  the  ground  of  counsel's  criticisms. 
They  are  not  well  founded.  The  court  in  the  langua<>e  compltiined  of 
explained  to  the  jury  what  facts  autliorized  the  conclusion  that  malice 
had  the  quality  of  being  aforetliou<>ht.  It  was  not  necessary  in  doing 
so  to  couple  the  adjective,  the  meaning  of  which  the  court  was  ex- 
plaining, with  the  word  malice  whenever  it  Avas  used. 

Another  instruction  directed  the  jury  to  consider  all  the  facts  con- 
nected with  defendant's  language,  appearance,  etc.,  preceding  the 
alleged  homicide  upon  the  question  of  defendant's  insanity.  They  were 
informed  that  these  facts  were  to  be  considered  to  enable  them  to  test 
the  value  of  the  opinions  expressed  b}'  witnesses  upon  that  subject,  and 
also  to  determine  the  fact  whether  the  insanity  was  established  inde- 
pendently' of  such  oj)inions.  The  purport  of  the  instruction  is  obvious. 
If  witnesses  had  testitled  that  defendant  was  sane,  and  his  actions,  as 
shown  by  the  testimony,  were  unmistakably  those  of  an  insane  man, 
surely  this  should,  in  the  minds  of  the  jury,  destroy  the  force  of  the 
opinions  and  lead  them  to  the  conclusion,  upon  the  evidence  of  his 
actions  alone,  to  find  the  existence  of  insanity.  The  like  rule  would  be 
applicable  did  his  acts  establish  sanity  when  the  opinions  of  the  wit- 
nesses were  the  other  way.  The  objection  to  the  instruction  is  without 
force.     Others  of  the  same  character  need  not  be  noticed. 

Affirmed. 


MORAL    INSANITY— INSANITY  MUST    DIRECTLY   CAUSE  CRIME   TO 
EXCUSE   IT— OPINIONS  OF  WITNESSES. 


State  v.  Stickley. 

•    [H  Iowa,  232.] 

In  the  Supreme  Court  of  Iowa,  December  Term,  1875. 

1.  Koral  Insanity  no  Excuse  for  Crime.  —  A  person  who  is  possessed  of  a  sound  mind 

is  liable  for  a  criminal  act,  though  committed  under  the  imiiulse  of  passion  or  revenge 
which  may  temporarily  dethrone  reason  and  control  the  will. 

2.  Insanity  is  only  an  Excuse  for  Crime  where  it  is  the  direct  cause  of  it. 

3.  Opinions  of  Witnesses,  when  admissible. 

ArPEAL  from  Benton  District  Court. 

At  the  April  term,  1.S73,  of  the  Blaekhawk  District  Court,  llie  defend- 


STATE    V.    8TirKL?:Y. 


109 


ned  to  be 
I  using  the 
9  not  used 
criticisms. 
[)ltiined  of 
liat  malice 
iT  in  doing 
:t  was  ex- 
facts  con- 
ceding the 
Tho3'  were 
lera  to  test 
ibjoct,  and 
shed  indo- 
is  obvious, 
actions,  as 
isane  man, 
rce  of  tlio 
nee  of  his 
e  would  be 
f  the  wit- 
is  without 


Facts  In  the  Case. 


[(firmed. 


3RIME  TO 


.sound  mind 
or  Tcvenge 


ants,  ^lary  Stickley  and  Khnira  Stickley,   were  jointly  indicted   with 
Richard  (leorgc,  for  an  assault  with  intent  to  murder  one  Byron  Wright. 
Mary  Stickley  is  tiie  m»jther  of  Elniira,  who,  at  the  time  of  the  commis- 
sion of  the  offence  charged,  was  about  sixteen  years   old.     IJichard 
(leorge  was  in  tlie  employment  of  IMary  Stickley,  and  boarded  and 
lodfCil  at  her  house.     There  is  some  evidence  that  wliilst  he  was  there 
an  engagement  of  marriage  was  made  between  him  and  Klmira.     Wright 
took  charge  of  a  schocd  very  near  to  Mrs.  Stickle^-'s,  and  at  the  solicita- 
tion of  Mrs.  Stickley  and  Klniira,  came  to  board  with  them.     It  would 
seem,  from  the  evidence,  that  Khnira  became  very  nnu-h  eiiamoied  of 
him,  and  that  the  mother  was  quite  willing  to  promote  and  encourage  an 
intimacy  between  tiiem.     On  the  Tluusday  before  the   commission  of 
the  assault,  Wright  made  arrangements  to  board  with  Kiugsley,  one  of 
the  directors,  and  remained  there  Thursday  night.     On  Friday,  Mrs. 
Stickley  and  her  daughter  interrogated  him  about  boarding  at  Kiugsley's, 
Mild  he  informed  them  he  thought  of  going.     On  Saturday  he  told  them 
positively  he  intended  to  go,  and  both  urged   him  to  sta}'.     The  testi- 
mony of  Wright  on  this  branch  of  the  case  is  as  follows:   "  Both  fell 
to  abusing  me;  asked  why  I  wanted  to  change  my  Ijoarding  place; 
Mrs.  Stickley  said  that  if  1  would  stay,  she  woidd  give  me  what  I  owed 
her.     1  said  that  would  be  no  object.     Then  she  said  she  would  give 
nil'  what  would  be  due  her  if  I  stayed  to  the  end  of  my  school.     I  said 
that  would  l)e  no  object.     She  tlu'U  said,  '  if  ^'ou  will  stay  and  marry 
KImira,  I  will  give  you  the  farm,'  and  neither  of  us  should  want  while 
she  lived.     I  told  her  that  would  be  no   object.     They   ended  their 
l)lt;Kliiigs  by  Mrs.  Stickley  saying:   'Then,  danui  j'oii,  go;'  repeated 
that  several  times  ;  got  very  angry  ;  said  they  rather  see  me  shot  than 
to  go  to  Kiugsley's.     This  was  Saturday  morning."     Saturday  evening 
both  again  urged  hira  to  sta}':     )Vright  testifies:   "  KImira  came  to  me 
Saturday  night,  and  said  '  INIr.  Wright,  I  will  give  j'ou  another  chance. 
Won't  you  give  up  going  to  Kiugsley's,  and  stay  here?  '     I  told  her  no, 
and.  further,  I  wished  she  would  not  ask  me  that  again  ;  that  it  was  my 
privilege  to  go  where  I  pleased  ;  and  she  said :   '  Look  out,  maybe  you 
will  not  go  yet.'     On  Sunday  mrruing  KImira  renewed  her  expostula- 
tions, and  when  informed  that  he  would  not  stay,  she  said :  '  I  had  a 
notion  to  blow  your  brains  out  while  you  was  in  bed,  but  I  will  give  you 
another  chance.'     When  he  went  to  church  Elmira  was  weeping,  and 
w'  e;i  he  returned  her  mother  said :   '  She  has  been  crying  ever  since  you 
iri\e  been  gone.' "     On  Monday  morning  Wright  dressed  himself  and 
went  out,  saying  he  would  go  over  to  school.     Elmira,  her  mother   and 


lie  defend- 


' 


110 


THE   LEOAL   TEST  OF   INSANITY. 


State  V.  Stlckl(>v. 


CfCorge,  nil  askod  him  to  eat.  IIo  saitl  he  would  letiirn  at  recess.  At 
recess  he  came  in  and  took  his  place  at  the  taMe.  Elmira  came  behind 
liim  and  shot  him  in  the  back  of  the  head,  ile  took  iiold  of  the  table, 
rose  to  his  feet,  and  turned  toward  the  outside  kitchen  door,  and  then 
fell  to  the  floor  on  his  face.  He  again  rose  and  started  to  the  door. 
When  he  reached  the  outside  door  Ge.irge  vas  standing  with  his  back 
against  it,  and  when  he  tried  to  get  out.  he  pushed  him  away.  This 
was  repeated  a  half  dozen  times.  Wright  then  went  to  a  broken  glass 
in  the  window  to  get  air,  and  G.'orj'-e  shot  him  in  the  left  side  of  the 
head  in  front  of  the  ear.  Mrs.  Stickloy  was  present,  and  the  evidence 
tends  to  show  that  she  enojuraged  and  altetted  the  act.  Mrs.  Stickley 
testifies  that  after  they  retired  Sunday  night  Elmira  told  her  Wright  had 
insulted  her  .>n  Friday  night  in  the  school-house,  but  that  she  i)ald  no 
attention  to  it,  bccacse  she  knew  Elmira  had  told  things  before  that 
were  not  tcue,  aiid  chat  she  had  imagined  things. 

There  was  evidence  tending  to  show  that  the  father  of  Elmira  was 
subject  to  fits  of  insanity,  and  that  Elmira  had  insane  spells  ;  that  there 
woe  peculiarities  in  her  conduct  at  her  monthly  periods,  and  that  the 
traiisaction  in  question  occurred  about  that  period.  Upon  the  other 
hand,  there  was  evidence  tending  to  show  that  there  was  nothing  peculiar 
about  the  father  of  Elmira,  except  that  he  was  a  very  passionate  man, 
and  that  nothing  unusual  was  discernible  in  the  conduct  of  Elmira  pre- 
vious to  this  event. 

The  jury  found  both  defendants  guilty,  as  charged.  The  court  sen- 
tenced Mary  Stickley  to  the  penitentiary  for  nine  years,  and  Elmira 
Stickley,  who.  at  the  time  of  the  sentence,  was  nearly  seventeen  years 
old,  to  the  reform  school  until  she  should  attain  her  majorit}'.  The  de- 
fendants appeal. 

Boies,  Allen  &  Couch  for  appellants.  . 

Cntts^  Attorney-General  for  the  State, 

Day,  J. — I.  Immediately  after  the  shooting  r  "  and  Elmira  got 
into  a  sleigh,  and  she  drove,  at  a  rapid  rale,  ti  .   Falls,  a  d    tance 

of  about  a  mile.  A  witness,  Packard,  describ  now  she  was  cuessed, 
her  appearance,  and  manner  of  driving,  and  suyi*  he  saw  her  a  few 
minutes  afterward  in  Taggart's  store,  and  heard  her  t.  iking,  but  paid 
little  attention  to  what  she  was  saying.  That  she  was  very  much  ex- 
cited, and  was  relating  something  in  regard  to  the  occurrence.  He  was 
then  asked  the  following  question :  "  Will  j'ou  state  from  your  knowl- 
edge before,  and  your  acquaintance  with  her,  from  her  conversation  at 
that  time,  and  her  looks  at  that  time,  whether,  in  your  judgment,  she 
was  then  in  her  right  mind  ? ' ' 


OPINIONS    OF    WITNKSSKS    NOT    KXPKUTS. 


Ill 


icess.  At 
inc  bohind 

the  table, 
,  nnd  then 

the  door, 
h  bis  back 
-ay.  This 
okcn  glass 
lido  of  tlie 
0  evidence 
8.  Stickley 
bright  had 
18  ])aid  no 
jefore  that 

ilmira  was 
tliat  there 

;1  that  the 
the  other 

ig  peculiar 

nate  man, 
Imira  pre- 

court  sen- 
iid  Elmira 
;een  years 
The  de- 


iiiisa  got 
d  *ance 
cii  ossed, 
ler  a  few 
but  paid 
much  ex- 
He  wag 
ui  knowl- 
sation  at 
inent,  she 


Must  be  Basi'il  on  Stati'd  Facts. 


Tlie  question  was  objected  to,  as  iiioompetoiil  and  iuiidmisxible,  and  the 
objection  was  sustained.  In  l*eJitmi»irrfm  v.  C'lnrkJ  respecting  tlie 
admission  of  opinion  of  witnesses,  not  experts,  It  is  said  :  '•  The  extent 
to  which  any  of  the  authorities  have  carried  the  rule,  even  in  the  Kcdes. 
iastical  Courts  of  Kngland,  is,  that  after  the  witness  has  stated  tlie  facts 
and  circumstances,  then  his  conclusion  or  opinion  derived  from  and 
resting  upon  them  may  be  given."-  Tested  by  this  rule,  which  has 
received  the  sanction  of  this  court,  and  is  abundantly  sustained  by 
authority,  it  seems  cpiite  clear  that  there  was  no  error  in  excluding  the 
(juestion  asked.  The  v/itnesshad  descril>ed  the  appearance  and  maimer 
of  Elmira,  but  paid  little  attention  to,  and  does  not  undertake  to  detail 
what  she  said.  lie  was  asked  to  give  his  opinion  whetiier  she  was  in  her 
sound  mind,  from  her  conversation  wiiich  he  had  not  detailed,  and  her 
looks,  and  from  his  knowledge  before  and  acijuaintance  with  her.  Now, 
however  proper  it  might  hav»;  been  for  him  to  express  an  opinion  !)ased 
upon  her  conversation  and  looks,  if  he  had  descril)ed  her  looks  and  detailed 
her  conversation,  so  tliat  tlie  jury  might  have  I)een  put  in  possession  of 
the  facts  upon  wliicli  he  based  his  opinion,  and  been  enabled  to  estimate 
properly  the  value  of  his  opinion,  it  is  clear  that  he  could  not  exijress 
an  opinion  from  his  former  knowledge  and  acquaintance. 

Such  evidence  would  be  a  mere  substitution  of  the  opinion  of  a  non- 
professional witness  for  facts. -^ 

II.  Tiie  defeiiilant  introduced  testimony  tending  to  show  the  defend- 
ant (Elmira)  had  been  temporarily  insane  at  different  times  prior  to  the 
alleged  offence.  In  rebuttal,  the  State  called  Lyman  Davidson,  who 
stated  he  knew  Stickley,  and  was  the»i  asked  the  following  question : 
"Did  you  know  the  treatment  ne  received  fnmi  his  wife?"  The 
defendants  oVjjected  to  evidence  of  her  treatment  at  other  times  than 
those  in  which  it  was  claimed  he  was  deranged.  The  objection  was 
overruled,  and  defendants  excepted. 

The  witness  answered :  "They  were  a  very  peculiar  family.  They 
wore  very  rough,  and  would  swear  like  pirates ;  knew  of  their  having 
fiunily  quarrels ;  the  boys  could  not  live  at  home ;  know  the  general 
character  of  Mrs.  Stickley;  it  is  very  bad."  This  answer,  it  will  be 
observed,  is  not  all  responsive  to  the  question.  It  does  not  appear  that 
any  effort  was  made  to  exclude  it  from  the  jury.     The  mere  asking  of 


'  It  Iowa  1. 

-  See  also  Dunham's  Appeal,  27  Conn.  13. 

^  See  the  following  authorities  cited  by 
ai>pellee;  Clapp  v.  Fullerton,  34  N.  Y.  11)0; 
O'llrien  v.  People,  36  Id.  576;  Ileal  v.  People, 
li  Id.  270;  Hewlett  v.  Wood,  .55  Id.  634.    See 


also  the  following  oases  in  which  the  rule  of 
exclusion  is  carried  to  .still  greater  extent: 
Coiuinouwealth  v.  Wilson,  1  Gray,  3;!7;  Com- 
monwealth V.  Fairbanks,  2  Allen,  511 
Wyman  v.  Gould,  47  Maine,  159. 


112 


THE   LEGAL    TKST    OF    IXSAXITY. 


State  V,  Stickley, 


the  question,  if  erroneous,  worked  no  prejudice  to  defendants.  Tiie 
answer  was  permitted  to  reinain  witliout  objection,  and  even  if  it  should 
be  coneeded  that  it  contains  im[)roper  evidence,  it  constitutes  no  ground 
for  reversing  the  ease.  Wliere  iniprcjper  evidence  is  permitted  to  re- 
main in  a  criminal  ease,  without  objection,  the  eiTor  ii>  its  admission  is 
waived.' 

III.  The  court  instructed  the  jury  as  follows:  "8.  Tlie  luiture, 
character,  and  degree  of  insanity'  wluch  exonerates  a  party  from  crim- 
inal resi)onsibility  is  not  euisily  explained  or  understood.  It  is  not  nec- 
essary that  it  should  be  shown  by  the  evidence  that  the  defendant  at  the 
time  of  the  commission  of  the  act  did  not  know  right  from  wrong,  as  to 
her  acts  in  general.  The  inquiry  must  be  directed  to  tlie  act  charged. 
If  you  believe  from  the  evidence  that  the  defendant's  act  in  shooting 
"  Vright  (if  she  did  siioot  him),  was  caused  by  mental  disease  or  unsound- 
ness, which  dethroned  her  reason  and  judgment  with  respect  to  that 
act,  which  destroyed  her  power  rationally  to  comprehend  the  nature  and 
consequences  of  the  act,  and  whkh,  overpowering  her  will,  inevital)ly 
lorced  her  to  its  commission,  then  she  is  not  in  law  guilty  of  any  crime, 
and  j'our  verdict  as  to  her  should  be  not  guilty.  B'lt  if  jjoa  believe 
from  all  the  evidences  and  circumstances  in  the  case,  that  she  ivas  in 
the  ])ossession  of  a  rational  intellect  or  sound  mind,  or  from  some  real 
or  fancied  injury  she  alloived  her  passion  to  escape  control,  then,  though 
passion  or  recencje,  may  for  the  time,  have  driven  reason  from  its  seat, 
and  usurped  it,  and  urged  the  difendant  icith  a  force,  at  the  moment 
irre.si-;tible,  to  desperate  a(.'^s•,  she  cannot  claim  for  such  actf  the  j^i'otec- 
tion  of  insanity,  and  she  is  guilty.  Tiie  practical  question  for  you  to 
determine  from  all  the  evir.  :  e  is,  whether  passion  and  revenge  or 
insanity,  was  the  ruling  force  antl  controlling  agency  which  led  to  the 
commission  of  this  act.  If  3'ou  believe  that  the  shooting  was  the  direct 
result  or  offspring  of  insanity  j'ou  should  ac([uit;  if  of  passion  or 
ivvenge  you  should  convict.  You  should  indulge  in  no  prejudice 
against  the  defence,  but  give  it  tlioughtful,  thorough  and  dispassionate 
C(^nsideration,  and  yet  the  interests  of  society  and  tlie  welfare  of  the  State 
demand  that  this  defence  ought  not  to  be  regarded  as  sullicient  to 
exculpate,  unless  you  believe  from  the  evidence  that  the  propensity  to 
commit  the  act,  existed  in  such  violence  as  to  subjugate  the  intellect, 
control  the  will,  aud  render  it  impossible  for  the  defendant  to  do  other- 
wise than  to  yield  to  the  insane  impulse.  In  other  words,  it  shouhl 
appear  not  only  that  the   mind  of  the  accused  loas  insane,  hut  that  the 


state  V.  Polsun,  29  Iowa,  133. 


INSANE    DELUSION. 


113 


russioii  and  Uevciiitc 


:s.  The 
t  should 
5  ground 
d  to  rc- 
issiou  is 

■  nature, 
)m  dim- 
not  nee- 
,nt  at  the 
jg,  as  to 
charged, 
shooting 
unsound- 
t  to  that 
iture  and 
nevital)ly 
ly  crime, 
m  believe 
le  teas  i)i 
some  real 
H,  though 
I  its  seat, 
moment 
e  2'>>'otec- 
V  you  to 
^•I'nge  or 
id  to  the 
a  direct 
sion  or 
rejudice 
ssionate 
,he  State 
lent  to 
nsity  to 
Intellect, 
lO  other- 
s/ioul'l 
that  the 


act  for  ichich  she  is  indicted  was  ike  direct  offspriny  of  such  insanit;/. 
This  being  shoioi,  responsibilit;/  is  anmdled,  but  not  otherwise.'^  To 
tills  instruction  defendants  excepted,  the  i)arts  object^.'d  to  arc  in 
italics.  It  is  conceded  that  the  first  paragraph  o))jected  to  was  borrowed 
from  the  rule  suggested  by  this  court  in  State  v.  Feltrr,^  and 
tiiat  it  is  almost  a  literal  copy  thereof,  with  the  addition  of  the  words, 
'■  or  revenge  "  after  the  word  passion. 

Whilst  no  objection  is  made  to  this  rule  in  a  piopcr  ease,  it  is  clanned 
lliat  the  facts  in  the  case  of  State  v.  FelU  r  and  in  this  case  are  so 
essentially  different  as  to  render  a  rule,  wliirh  would  be  entirely  safe 
and  proper  in  one  case,  equally  unsafe  and  iniprop.i  in  the  other.  It 
is  urged  that  the  rule  has  no  a[)|)lication  to  any  tlieory  of  either  the 
piosecution  or  the  defence.  It  is  insis'.e'l  that  the  State  claims  that  the 
assault  was  the  consummation  of  r  deliberate  plan  formed  by  three 
rational  beings,  to  take  the  life  of  Wrigiit.  Whilst  the  defence  claims 
that  it  was  the  outgrowth  of  an  insane  delusion  on  the  part  of  Elmira, 
that  he  had  locked  her  in  a  school-house  and  attempted  her  ruin. 

We  are  uuLble  to  see  wherein  the  instruction  is  not  pertinent  to  the 
case.  The  defence  claimed  that  Elmira,  at  the  time  of  the  commission 
of  the  act,  was  laboring  under  such  insane  delusion,  impelling  her  to  the 
net,  and  overcoming  her  Avill,  that  she  is  not  responsible  iov  her  con- 
duct. It  was  incumbent  upon  the  coiu'tto  distinguish  between  insanity 
and  mere  passion  or  revenge,  and  to  instruct  the  Jury  that  the  latter, 
though  it  may  for  a  time  have  driven  reason  from  its  seat,  would  furnish 
110  excuse.  This  portion  of  the  instruction  must  be  taken  in  connection 
witli  that  which  immediately  follows,  in  which  the  court  says:  "Tlie 
practical  question  for  you  to  determine  from  all  the  evidence,  is  whethei- 
passion  and  revenge  or  insanity  was  the  ruling  force  and  controlling 
agency  which  led  to  the  commission  of  tliis  act." 

From  all  the  circumstances  disclosed  the  jury  were  warranted  in  find- 
ing that  Elmira  was  actuated  by  a  spirit  of  revenge,  or  was  thrown  into 
a  violent  passion,  because  Wright  would  not  listen  to  her  expostulations, 
and  was  determined  to  change  his  boarding  place,  and  if  she  allowed 
tliis  feeling  of  passion  or  revenge  to  so  take  possession  of  her  mind  as 
to  impel  her  to  an  act  of  violence,  she  is  still  rcsponsiiile  therefor,  if 
her  act  was  the  outgrowth  of  her  passion  or  revenge  and  not  of  her 
insanity. 

Tlic  next  paragraph  objected  to  is  a  literal  quotation  from  State 
V.  Fe'ter,-     But  it  is  claimed  that  the  question  of  its  correctness  was  not 


1  25  Iowa,  67. 


8 


p.  86. 


\ 


114 


THE   LEGAL   TEST   OF    INSANITY. 


Uradlev  v.  Stato 


befoi'e  the  court,  and  that  the  hinguage  can  onl}'  be  considered  as  dicta. 
We  think  the  paragrapli  cannot  be  regarded  as  mere  dicta,  and  further, 
that  it  is  not  fairly  vulnerable  to  the  criticism  made  upon  it.  It  is  claimed 
that  tlie  rule  here  recognized  casts  upon  the  defendant  the  burden  of 
proving  by  substantive  testimony,  not  only  that  she  was  insane,  but  that 
the  act  for  which  she  was  indicted  was  the  direct  offspring  of  such  in- 
sanity. This  is  not,  we  tliink,  the  fair  construction  to  be  placed  upon 
this  paragraph,  when  taken  in  connection  witii  the  wliole  instruction. 
It  means  only  that,  from  all  the  facts  and  circumstances  of  the  act,  as 
disclosed  by  the  testimony,  if  defendant  would  claim  exculpation  on  the 
ground  of  insanity,  it  must  be  made  to  appear  that  she  was  insane,  and 
that  the  offence  was  the  offspring  of  such  insanit3\  Instances  are  nu- 
merous in  the  works  upon  medical  jurisprudence,  in  which  the  mind 
respecting  some  particular  matter  rests  under  a  peculiar  delusion,  and 
with  respect  to  all  matters  having  no  connection  therewith,  appears  per- 
fectly sane.  Whilst  such  a  person  could  not  be  regarded  as  sane,  j-et 
he  would  be  criminally  respoiisi1)le  for  his  acts,  unless  they  could  be 
attributed  to  his  particular  delusion. 

IV.  The  evidence  as  to  the  sanity  of  Elmira  was  conflicting,  and  it  does 
not  warrant  us  in  disturbing  the  verdict  which  found  her  sane.  The 
jury  was  fully  warranted  in  finding  that  Mary  Stickley  was  present,  and 
that  she  aided,  abetted,  and  cncouniged  the  assault. 

No  error  is  apparent  in  txc  record. 

Affirmed. 


TEST  OF  INSANITY  — UNDERSTANDING  AND  WILL  —  BURDEN  OF 
PROOF  — REASONABLE  DOUBT  — DRUNKENNESS —  HEREDITARY  IN- 
SANITY—BOOKS OF  SCIENCE  — EXPERT -COMPENSATION. 

Bradley  v.  State. 


[31  Ind.  492.] 
In  the  Supreme  Court  of  Indiana,  November  Term,  1869. 


Hon.  James  S.  Fiuzkr,  Chief  Justice. 

■  Judges. 


"     RonEKT  C.  Gregoky, 
"     Jonx  T;  Elliott, 
•'     CuAKLES  a.  Ray, 


1.  Test  oflnsanity— UnderstandiiiR  and  Will.  — Ins.anlty  may  dcfitroy  cither  the  un- 
(ler.staiuliiiK  "v  the  will.  An  instruction,  therefore,  which  limit"  the  inquiry  of  the  jury 
to  the  cuuiUliou  of  the  power  to  ui>i)ruhcuU  by  the  uudcrstaudinK.  is  erroneous. 


BRADLEY   V.    STATE. 


115 


Syllabus  and  Facts. 


IS  dicta, 
further, 
claimed 
irden  of 
but  that 
such  in- 
:ecl  upon 
truction. 
le  act,  as 
3n  on  the 
lane,  and 
I  are  nu- 
the  mind 
sion,  and 
)ear3  per- 
sane,  yet 
could  be 

ind  it  does 
.no.  The 
;sent,  and 


irmed. 


IDEN    OF 

Itary  in- 


9. 


lUerthe  un- 

of  the  jury 
bous. 


2.  Burden  of  Proof. —  Where  there  ia  a  reasonable  doubt  of  the  iirisoner's  insanity  ad- 
iluced  by  hi  n,  the  burden  of  proving  his  sanity  falls  on  the  .State. 

.3.  Reasonable  Doubt  dellncd. 

I.  Voluntary  Drtinkenness  ii^  uo  excuse  for  crime;  but  insanity  i)ro(hu'Ccl  l)y  continued 
intoxication  is. 

5.  Evid'     :;'■'  —Hereditary  Insanity. —  Where  there  is  no  evidence    of  the  (irisoncr's 
ins  '•  '■  ',  evidence  of  the  insanity  of  lii.s  relatives  is  irrelevant. 

<i.  Bookb  of  Scinnce  are  not  admissible  in  evidence. 

7.  Expert  —  Compensation.  —  The  evidence  of  an  expert  should    not   be   discredited 
merely  because  he  expects  to  have  liis  expenses  paid  by  the  i)arty  calling  him. 

Appeal  from  the  Switzerland  Circuit  Court, 

J.  W.  Gordeyi,  W.  W.  O'Brien,  S.  Carter,  II.  A.  Downey,  and  J.  A. 
WorTcs,  for  appellant. 

D.  E.  Williamson,  Attorney-General,  for  the  State. 

Ray,  J.  —  Cincinnatus  Bradley,  tlie  appellant,  was  indicted  for  mur- 
der in  the  first  degree.  He  chanoed  the  venue  from  before  the  judge 
on  account  of  alleged  bias  and  prejudice.  A  judge  of  another  circuit 
was  called  by  Judge  Beuk.shike  to  try  the  cause.  A  jury  found  the  de- 
fendant guilty  of  murder  in  the  second  degree,  and  that  he  be  sentenced 
to  the  penitentiary  during  life.  Motion  for  a  new  trial  overruled, 
motion  in  arrest  of  judgment  overruled ;  judgment  on  the  verdict. 

The  evidence  shows  that  the  defendant  and  tiie  deceased  were,  on  the 
•20th  day  of  September,  18(58,  living  with  their  fan.iUes  in  different 
parts  of  the  same  house,  which  wa&  owned  by  the  defendant ;  that  no 
serious  quarrel  or  ill  feeling  hud  ever  existed  between ;  that  deceased 
was  sitting  in  the  yard,  smoking  and  reading,  while  the  defendant  was 
engaged  in  driving  ho;;s  out  of  the  yard,  in  doing  which  he  became 
greatly  enraged ;  and,  ^fter  knocking  one  of  the  hogs  down  with  a 
boulder,  and  throwing  it  over  the  river  bank,  he  went  into  the  house, 
iloclaring  his  intention  to  get  his  pistol  and  shoot  the  deceased  ;  that  he 
came  out  with  his  pistol,  and  deceased  was  seen  with  his  stool  in  his 
liand,  coming  towards  the  house ;  and  that  when  deceased  was  from 
fifteen  to  thirty  j'aids  from  the  porch,  the  defendant  fired  from  where 
ho  stood  on  the  porch,  the  ball  hitting  deceased  in  the  right  side  of  the 
chest,  penetrating  the  lungs,  and  inflicting  a  severe  and  dangerous 
wiund.  The  deceased  fell  when  the  shot  was  fired.  The  evidence  is 
cimllicling  as  to  whether  his  lower  extremities  were  paralyzed  by  the 
wound  or  not  —  some  witnesses  sa_y  that  they  were,  and  others  tliat  they 
wore  not.  After  the  shot  the  defendant  offered  to  assist  the  wife  of  the 
w  >undedman  to  carry  him  into  the  house,  saying  that  he  had  shot  him, 
and  was  sorry  for  it.     But  the  wife  refusing  to  let  l)im  assist,  he  said  he 


116 


THE   LEOAL   TEST   OF    INSANITY. 


JJriulk'y  V.  State. 


had  shot  him,  and  was  glad  of  it.  The  defendant  and  his  wife  then 
stalled  with  their  child  to  tlie  river,  and  endeavored  to  get  across,  first 
on  the  ferryboat,  and,  on  being  refused  a  passage,  tlien  by  taking  a  slciff 
tiiat  was  13'ingon  the  sliore ;  and  after  putting  liis  wife  and  cliild  into  it 
and  trying  to  pusli  off,  he  was  prevented  by  tliose  present,  and  said  that 
lie  iiad  done  what  he  had  to  tlie  deceased  in  self-defence ;  and  that  he 
did  not  want  to  be  arrested  on  Sunday  ;  and  if  they  would  let  him  go  to 
Kentucky  he  would  return  tlie  next  day  au<l  answer  for  what  he  had 
done.  Upon  returning  to  his  house,  he  was  arrested,  and  the  pistol  — 
one  of  Sharpe's  patent,  four-barrelled  pistols  —  taken  from  him,  three 
buiTels  being  loaded,  one  empty,  and  a  bottle  of  whiskey  about  half  full. 
After  his  arrest  he  made  an  effort  to  get  away,  caught  the  sheriff  by  the 
beard,  and  struggled  with  liira.  When  at  the  magistrate's  oflice,  he 
asked  the  olHcer  wlio  had  charge  of  the  ])istol  for  it,  for  tlie  avowed 
purpose  of  getting  tlie  barrel  from  the  stock  and  tlirowing  it  awaj-. 
Afterwards  he  spoke  of  being  admitted  to  bail  in  some  small  amount, 
and  of  his  ability  to  give  it ;  and  while  in  jail  he  made  an  offer  of  eight 
thousand  dollars  to  the  sheriff,  if  he  wcnild  not  lock  him  up.  Tliis  offer 
was  in  writing.  He  employed  a  jihysician  to  attend  upon  tlie  deceased, 
and  paid  five  hundred  dollars ;  he  employed  and  broke  with  several  at- 
torneys, to  each  of  whom  he  agreed  to  pay  not  less  than  five  hundred 
dollars. 

In  the  meantime,  the  deceased,  being  wounded  severely,  was  carried 
first  into  his  own  house,  where  he  remained  several  days;  then  he 
was  carried  to  tlie  house  of  Mr.  Jennings,  were  he  again  remained  some 
weeks,  and  seemed  to  be  improving,  wiien  he  was  a  second  time  re- 
moved, this  time  to  the  house  of  INIrs.  Salinda  Plew,  from  which  time  he 
grew  worse  until  he  died,  about  ten  weeks  after  he  was  shot.  Before 
his  last  removal  his  appetite  was  good,  his  wound  closed,  his  limbs  re- 
covered their  motion,  and  he  seemed  likely  to  recover.  After  his 
removal  he  grew  worse,  acute  inflammation  of  the  lungs  setting  in,  re- 
sulting in  suppuration,  and  finally  in  death.  There  was  testimony  tend- 
ing to  show  that  his  death  was  caused  by  this  inflammation,  and  not  I>y 
the  wound;  and  whether  the  shot  or  other  causes  produced  his  death, 
was  a  question  fiercely  debated  upon  the  trial.  The  shot  was  inflicted, 
and  the  deceased  died  in  Switzerland  County. 

If  the  death  should  be  found  to  have  been  caused  by  the  wound  in- 
flicted upon  the  deceased  by  the  defendant  Avith  the  pistol,  then  the 
defence  relied  upon  was,  that  he  was  insane  at  the  time  the  fatal  shot 
was  fired,  and  consequently,  incapux  doli. 


I5UADLKY    V.   STATF,. 


117 


Kvidfiicos  of  Insanltv. 


ife  then 
ss,  first 
T  a  skiff 
I  into  it 
aid  that 

that  he 
im  go  to 

he  liad 
pistol  — 
in,  three 
uilf  full, 
ff  by  the 
)lUce,  he 
i  avowed 

it  awaj'. 

amount, 
•  of  eight 
riiis  offer 
leceased, 
pveral  at- 

hundred 

carried 
then  he 
ed  some 
time  re- 
time he 
Before 
imbs  ro- 
iVfter  his 
g  in,  re- 
)ny  tend- 
id  not  by 
lis  death, 
inflicted, 

onnd  in- 
then  the 
'atal  shot 


The  evidence  adduced  by  defendant  upon  this  point,  stated  in  a  vciy 
general    tvuy,   ♦.ended   to    establish    tiie    following    facts:   1.  That    his 
mother  became  and  was  insane  for  twenty  years  before  her  death,  being 
;it  first  wild  and  maniacal,  but  as  she  grew  older  becoming  more  quiet, 
and  finally  settling  into  a  stale  ai)proaching  dementia,  in  wliich  condi- 
tion siic  died.     The  defendaiit  was  al)outten  years  old  when  she  l)ecame 
insane,  and  was  thoncefortii,  until  he  was  over  twenty,  in  tiie  almost 
exclusive  company  of  his  motlier,  who,  in  her  fondness  for  him,  was  in 
the  habit  of  taking  him  out  on  the  l)anksof  the  river  and  spending  whole 
days  building  houses  for  him  of  sticks.     2.  That  "William  Gray,  the 
twin  brother  of  defendant's  mother,  became  insane,  and  for  a  long  time 
sought  opportunities  to  destroy  his  own  life,  in  which,  though  often 
prevented  by   the  vigilance  of  his  relatives,    lie  fmally  succeeded,  by 
shooting  himself  to  death.     His  insanity  is  traced  to  no  known  cause  so 
far  as  the  evidence  discloses.     IJ.  That  defendant's  sister  —  half-sister 
by  his  father — was  also  insane,  and  when  last  heard  from,  confined  in 
a  lunatic  asylum  in  Connecticut.     Her  insanity  is  not  well  defineil,  or 
rather  is  not  characterized  by  the  Avitnesses ;  but  it  was  total  and  un- 
doul)ted.     4.  That  Hugh  Maiipel,  a  c;Hisin  of  defendant,  tjad  become 
insane    in    consequence  of    an  injury   inflicted   by   a  horse  tramping 
upon  his    head  ;  but   he  subseipientl}',  partially  or  wholly   recovered. 
.").  That  defendant  liimself,   when  a  mere   child,  had  been  seized  by 
some  disease  in  the  legs,  which  confined  him  for  live  or  six  j'ears  to  his 
room  and  bed;  and  when  he  partially  recovered  the  use  of  his  limbs,  he 
was  seized  with  a  disease  of  the  spine,  wliich  resulted  in  a  great  and 
permanent  curvature  of   the  spinal  column,  and  confined  him  to  the 
house  and  bed  until  he  was  neail}^  or  quite  sixteen  years  of  ago ;  that 
his  sickness  had  up  to  that  time  precluded  all  attempts  to  educate  him, 
and,  although  upon  recovery  so  far  as  to  be  able  to  go  about,  his  father 
made  great  efforts  to  educate  him,  his  mind  was  so  weak  and  imbecile 
as  to  render  them  utterly  unavailing ;  that  his  mind  remained  that  of  a 
mere  child  ufitil  after  he   was  twenty  years  old;  and  that  being  now 
ovei  thirty,  he  never  has  accpiired  any  facilty  in  reading  or  writing. 

The  evidence  tends  \o  show  that  for  the  last  seven  or  eight  years,  and 
according  to  some  of  the  witnesses,  for  ten,  he  had  been  a  constant, 
hal)itual,  and  excessive  drinker  of  alcoholic  stimulants ;  and  had  been, 
in  fact,  dining  the  seven  or  eight  j'ears  immediately  before  the  shoot- 
ing, constantly  drunk  —  an  habitual  drunkard.  On  this  point  there  is 
almost  no  contrariety  in  the  evidence.  There  is  evidence  tending  to 
show  that  the  small  amount  of  mind  he  originally  had,  was,  l)y  tiiis  in- 


118 


THE    LEOAL   TKiST   OF    INISAMTY. 


BriullL'y  V.  State. 


voterato  liabit  of  drunkenness  still  further  weakened  and  impaired,  until 
his  memory  was  almost  entirely  destroyed ;  one  of  his  attorneys  testify- 
ing that  he  could  not  reraembej  what  might  occur  in  relation  to  his 
business  between  them  from  oiie  consultation  to  another,  although  such 
consultations  occurred  within  a  day  or  two  of  each  other,  aixl  sometimes 
even  on  the  same  day  ;  and  that  when  he  would  have  some  one  writing  a 
letter  for  him  he  could  not  remember  what  he  desired  to  have  written  in 
the  letter,  after  he  had  begun  it.  The  evidence  also  showed  that,  being 
poor,  he  had  recently  before  the  shooting  was  done,  become  the  heir 
or  legatee  of  a  wealthy  relative,  and  was  hi  consequence  raised  from 
poverty  to  opulence  in  a  day.  Succecdmg  this  change  in  his  circum- 
stances, his  habit  of  drunkenness  and  its  injurious  effect  on  his  mind, 
seem,  according  to  the  testimony  of  some  of  the  witnesses,  to  have  be- 
come, if  possible,  more  deeply  maiked. 

lie  was,  just  before  and  during  the  trial,  examined  by  at  least  four 
physicians,  who  also  heard  the  evidence  touching  the  insanity  of  his 
mother,  her  brother,  defendant's  sister  and  cousin,  as  well  as  that  un- 
folding his  own  previous  life,  habits,  and  condition,  all  of  whom  con- 
curred in  the  opinion,  which  they  delivered  as  experts,  that  the  facts 
proved  in  relation  to  defendant's  mother,  uncle,  sister  and  cousin, 
tended  strongly  to  prove  that  insanity  was  hereditary  in  the  family  of 
the  defendant ;  and  that  the  defendant  himself  wSs  insane  at  the  time 
he  shot  the  deceased.  They  also  tesiifieu,  upon  a  hypothetical  case,  in- 
volving substantially  the  facts  proved,  and  of  which  there  was  evidence 
to  go  to  the  jury,  that  the  defendant  was  insane  at  the  moment  of  the 
fatal  act ;  and  that  his  appearance  in  court,  and  at  the  jail,  strength- 
ened rather  than  weakened,  their  conclusion  as  to  his  insanity. 

There  was  little  if  any  evidence  tending  to  show  any  cause  why  the  de- 
fendant shot  Evans.  Indeed,  so  far  as  the  evidence  disclosed  the  rela- 
tions of  defendant  and  deceased,  they  had  alwaj's  been  friendly,  and 
the  act  went  to  the  jury  apparently  without  a  motive. 

The  State  introduced  proof  tending  to  show  that  defendant's  mother 
did  not  become  insane  until  he  was  about  ten  years  old ;  and  that  the 
immediate  cause  of  her  insanity  was  the  death  of  two  children  who  both 
died  at  the  same  time. 

The  State  also  intro'^uccd  evidence  of  eight  or  ten,  or  it  may  be  more, 
of  the  defendant's  acquaintances  and  neighbors,  who  testified  that  up 
to  the  time  of  the  shooting,  they  had  severally  known  the  defendant  for 
a  longer  or  shorter  period,  had  noticed  nothing  unusual  in  his  manner 
or  appearance,  and  that  they  did  not  regard  him  as  insane. 


BRADLEY    V.  STATE. 


119 


Instructions. 


mother 
that  the 
[ho  both 

le  more, 

that  up 

llant  for 

Imanner 


AVe  proceed  to  the  consideration  of  the  charges  given  by  the  court, 
in  relation  to  insanity,  and  those  that  on  general  principles  must  be 
held  to  apply  to  and  give  point  to  the  same.     They  are  as  follows :  — 

"  2,  The  law  presumes  all  persons  to  be  of  sound  mind,  and  in  a 
charge  of  murder  it  is  not  necessary  for  the  State  to  prove,  to  make  out 
the  offence,  that  the  accused  was  not  insane.  If  it  is  claimed  that  he 
was,  the  defendant  must  prove  the  fact  in  his  defence. 

"4.  The  act  must  be  done  intentionall}'- ;  and  I  instruct  you  that  a 
sane  man  is  conclusively  presumed  to  intend  the  natural  and  probable 
consequences  of  his  own  acts,  and  the  intent  to  murder  is  conclusively 
inferred  from  the  deliberate  use  of  a  deadly  weapon. 

"  6.  The  rule  of  law  is  that  if  from  the  evidence  in  the  case  the  jury 
have  a  reasonable  doubt  as  to  any  material  fact  going  to  the  defence,  or 
necessary  to  make  the  cause,  the  prisoner  is  entitled  to  the  benefit  of 
the  doubt.  But  you  cannot  go  out  of  the  evidence  to  hunt  for  doubts  ; 
hut  the  doubts,  if  any  exist,  must  arise  out  of  the  evidence  in  the  case. 
Cy  a  reasonable  doubt  in  law,  is  intended  this :  when  the  evidence  is 
not  sufficient  to  satisfy  the  judgment  of  the  truth  of  a  proposition  with 
such  certainty  that  a  prudent  man  would  feel  safe  in  acting  upon  it  in 
Ills  own  important  affairs.  And,  if  the  evidence  in  the  case,  upon  any 
material  point  for  the  State  and  defence  considered,  does  not  satisfy 
your  judgment  of  the  truth  of  all  material  propositions  in  the  case,  and 
of  the  criminal  liability  of  the  defendant,  with  such  certainty  that  a 
prudent  man  would  feel  safe  in  acting  upon  said  matters  in  his  own  im 
portant  affairs,  then,  in  such  case,  there  would  be  a  reasonable  doubt  in 
the  case,  within  the  meaning  of  the  law  as  to  reasonable  doubts  in 
criminal  cases. 

"9.  To  constitute  the  defence  of  insanity  so  as  to  excuse  the  defend- 
ant from  the  punishment  imposed  by  law  for  the  offence  charged,  it  is 
not  sufficient  to  show  a  weakness  of  mind  only ;  but  it  is  necessary  to 
prove  such  a  deprivation  of  the  reasoning  and  mental  powers,  at  the 
time  of  the  killing,  as  shows  that  the  defendant  did  not  know  the  con- 
sequences of  his  act,  and  that  it  was  a  wrong,  and  that  it  was  illegal. 

"  10.  If  the  defendant  at  the  time  he  did  the  act  charged,  knew  what 
he  was  doing,  and  that  it  was  wrong,  and  a  violation  of  law,  then  he  is 
liable  to  punishment  for  it  like  any  other  person.  Tliej'^  will  not  weigh  or 
consider  the  different  grades  of  intellect,  but  will  punish  the  weak  as 
well  as  the  strong  in  mind  —  if  there  exists  sufficient  mind  to  know  and 
understand  the  nature  and  consequences  of  the  act. 

"11.  "Whether  the  defendant  knew  wiiat  he  was  doing  at  the  time 


r. 

i 


120 


THE   LKOAL   TKST   OF    INSANITY 


HnuUi'y  v.  State. 


he  fired,  depends  upon  all  the  ovich'ncc  in  the  case;  and  in  tliis  cotniec- 
tion  you  may  consider  any  attempt,  if  i)roved,  to  tlee  from  the  State 
soon  after  the  doing  of  tlic  act. 

"12.  Vohmtary  drunkenness  is  no  excuse  for  the  commission  of  a 
crime,  and  cannot  be  set  up  as  a  defence. 

"  1.').  Continued  drunkenness  producing  insanit}',  may  be  proved  ;  and 
if  tlie  insanity  exists  to  sucli  an  extent  that  the  party's  mind  cannot 
well  determine  to  d(»  the  act,  or  does  not  know  the  consequences  of 
his  act,  and  that  it  is  Avrong,  then,  in  sucli  a  ease,  he  would  not  be 
liable.  But  a  mere  voluntary  drunkenness,  no  matter  how  much  it  may 
excite  the  accused  or  arouse  his  passions,  is  no  excuse  —  if  he  has  mind 
enough  to  predetermine  the  act  and  to  know  its  consequences. 

"  14.  The  fact,  if  proved,  that  the  mother  and  uncle  of  the  defendant 
were  insane,  is  no  evidence  of  the  insanity  of  the  defendant ;  and  with- 
out otiier  proof  tending  to  prov'e  tliat  defendant  v\  is  insane  at  the  time 
he  did  the  act,  it  must  be  disregarded  by  the  jury. 

"  15.  Tiie  law  does  not  presume  the  son  insane  liecause  the  mother 
was,  nor  because  otlier  relatives  were ;  and  from  such  facts  alone  you 
cannot  find  insanity  in  defendant. 

"  10.  The  defendant  has  been  permitted  to  give  evidence  of  his 
drinking  hal)it3  ])efore  the  homicide ;  yet  the  evidence  will  be  of  no 
avail  unless  you  find  him  insane  at  the  time  of  committing  the  homicide, 
that  is  of  firing  the  fatal  shot,     *     *     * 

"22.  If  the  defendant  wilfully,  anil  with  premeditated  malice,  shot 
Alexander  Evans,  as  charged  in  the  indictment,  and  inllicted  on  said 
Evan's  person  a  wound,  and  if  said  wound  was  ultimately  the  cause  of 
said  Evan's  death,  the  defendant  is  guilty  of  murder  in  the  first 
degree  —  if  he  was  not  at  the  time  insane  within  the  rules  laid  down 
herein.     *     *     * 

"25.  The  opinions  of  medical  witnesses  are  admissible  in  evidence 
for  the  consideration  of  the  jury.  The  opinions  of  such  witness  are  not 
to  l)e  admitted  for  the  purpose  of  controlling  the  judgment  of  the  jury, 
but  to  be  considered  for  what  they  are  worth  in  your  opinion  when  con- 
sidered with  the  other  evidence  in  the  case. 

"20.  If  you  think  from  all  the  evidence  in  the  case- tiiat  3a)u  ought 
to  reject  the  testimony  of  the  medical  witnesses  or  any  of  them  you 
have  the  right  to  do  so. 

"28.  If  the  evidence  satisfies  you,  that  any  medical  witness  in  the 
case  has  voluntarily  come  from  the  State  of  Illinois,  to  testifj'  in  behalf 
of  the  defendant  with  the  expectation  that  his  exi)enses  would  be  paid 
by  the  defendant  or  others  for  him ;  and  if  it  further  satisfies  you,  that 


i  connc'C- 
Lhe  State 

jioii  of  a 

vcd ;  and 
k1  cannot 
lonc'os  of 
1(1  not  be 
[•h  it  inay 
has  mind 

lefcndant 
iiul  witli- 
;  tlie  time 

le  mother 
[xlone  you 

:g  of  his 

be  of  no 

loniicitle, 

ice,  shot 
on  said 

cause  of 
le    first 

id  down 

evidence 

are  not 

the  jury, 

aen  cou- 


ni  ouglit 
licm  you 


ss  in  the 
n  belialf 
be  paid 
ou,  tluit 


BRADLEY    V.  STATK. 


121 


Instructions 


the  defendant  was  a  stranger  to  such  witness ;  you_  may  consider  tliesc 
matters  in  connection  with  his  evidence  upon  tlu-  stand,  and  all  the  other 
evidence  in  the  case  in  determining  what  credit  you  give  to  his  evidence  ; 
and  if  you  believe  from  his  manner  of  testifying,  and  the  matter  of 
his  testimony,  and  from  the  evidence  in  the  case,  that  "ou  ought  to 
disregard  his  evidence,  you  have  the  right  to  do  so. 

"  29.  If  you  find  from  the  evidence  that  the  defendant  was  not  insane 
at  the  time  of  the  shooting,  but  knew  right  from  Avrong,  and  understood 
the  consecpjences  of  the  act,  and  had  the  ca;  acity  to  predetermine  to  do 
the  act,  and  did  inllict  the  wound  witii  premeditated  malice,  and  wil- 
fully, and  intentionally,  then  he  is  guilty  of  murder,  no  matter  whether 
at  a  prior  time  he  was  sane  or  insane. 

"  oO.  If  you  find  that  the  defendant  was  c»f  sound  mind  for  tliirt}-- 
two  years  next  preceding  the  act,  and  has  been  of  sound  mind  ever 
since  the  commission  of  the  act,  you  may  consider  this  evidence  in  de- 
termining whether  he  was  sane  at  the  time  of  the  shooting. 

"32.  Mere  weakness  of  mind,  when  the  party  knows  right  from 
wrong,  and  knows  and  intends  the  effect  of  his  act,  will  not  excuse  a 
iiomicide ;  for  the  law  will  not  weigh  degrees  of  strength  of  intellect, 
l)iit  only  inquire  vtiiether  the  accused  knew  right  ^om  wrong  —  whether 
ho  was  capable  of  wilfully,  premeditating,  and  maliciously  doing 
the  act. 

"33.  Questions  have  l)een  asked  medical  witnesses  calling  for  their 
opinions  upon  a  hypothetical  case,  a  state  of  facts  supposed  b}'  counsel 
to  exist;  and  opinions  have  been  given  to  such  questions  ;  but  because 
the  facts  have  been  supposed  to  exist  by  counsel,  it  is  no  evidence 
that  they  do  exist ;  and  you  are  to  find  what  if  aii}'  of  the  sui)- 
posed  facts  have  been  estal)lished,  and  if  any  one  is  not  proved  to 
your  satisfaction,  then  the  opinions  ui)on  such  as  arc  not  i)roved  can 
have  no  application  to  the  case,  and  ougl't  as  to  them,  to  be  dis- 
regarded. „ 

"31.  If  after  considering  all  the  eviilence  on  tlie  subject  of  insanity, 
and  facts  and  opinions  of  witnesses  not  of  the  medical  profession,  as  well 
as  of  that  profession,  you  are  satisfied  (with  the  rule  as  to  reasonable 
doiil)t  as  given  you)  that  the  defendant  was  not  insane  at  the  time  of 
doing  the  act  charged,  then  the  defence  of  insanity  hs  failed,  and  can 
not  avail  the  defendant. ' ' 

The  following  charges  were  given  by  the  court  on  its  own  motion  :  — 

"  13.  1  have  already'  said  to  you,  in  charges  asked  b}-  counsel  for  the 
State,  that  if  the  defendant  committed  the  act,  as  charged,  and  knew 
what  he  was  doing,  and  that  it  was  wrong  and  a  violation  of  law,   he  is 


122 


THE    LK(!AI.   TKST    OF    INSANITY. 


Bradley  v.  State, 


liable  under  this  iiKlictmciit.  Wliile  this  is  the  law  .ipplicable  to  the 
(luestion  of  sanity  generally,  it  seems  that  in  some  cases  a  broailer 
principle  should  be  applied.  The  best  exposition  1  can  give  you  upon 
this  subject  perhaps  will  be  to  give  you  what  is  said  by  a  standard 
author.     I  quote  from  1  IJishop's  Criminal  Law:  — 

'§  478.  Yet  the  form  of  the  question  of  insanity  for  the  jury,  stated 
above,  is  well  in  cases  where  it  is  admitted  that  Ihe  mental  disease  or 
imperfection  extends  only  to  the  intellectual  powers,  and  the  party  has 
full  control  over  liis  own  actions.  How  numerous  comparatively,  these 
cases  are,  is  a  matter  of  science  and  fact  not  here  to  be  discussed.  But 
it  is  both  understood  in  science,  and  sometimes  recognized  in  the  law, 
though  judges  are  slow  to  yield  on  this  point,  that  the  mental  and 
physical  machine  may  slip  the  control  of  its  owner ;  and  so  a  man  may 
be  conscious  of  what  he  is  doing,  and  of  its  criminal  character  and  con- 
sequences, while  yet  he  is  impelled  onward  by  a  power  irresistible.  In 
stich  cases,  in  the  language  of  Lord  Denman,  "  if  some  controlling  dis- 
ease Avas  in  truth  the  acting  power  within  him,  which  he  could  not 
resist,  then  he  will  not  be  responsible.'  And  the  question  for  the 
jury,  under  such  a  state  of  the  proofs  should  be  so  framed  as  to  com- 
(•rehend  this  view. 

^'§  479.  Let  it  be  remembered,  likewise,  that  this  irresistibU;  impulse  is 
not  always  general,  but  sometimes  has  reference  to  a  particular  class 
of  actions,  as  for  example  in  '  homicidal  iasanity.'  'There  is,'  says 
Gibson,  C.  J.,  '  amoral  or  homicidal  insanity,  consisting  of  an  irresist- 
ible inclination  to  kill,  or  to  commit  some  other  particular  offence. 
There  may  be  an  unseen  ligament  pressing  on  the  mind,  drawing  it  to 
consequences  which  it  sees,  but  cannot  avoid,  and  placing  it  under  a 
coercion,  which,  while  its  residts  are  clearly  perceived,  is  incapable  of 
resistance.  The  doctrine  which  acknowledges  this  mania,  is  dangerous 
iails  relations,  and  can  be  recognized  only  in  tiie  clearest  cases.  It 
OMght  to  be  shown  to  have  been  habitual,  or  at  least  to  have  evinced 
itself  in  more  than  a  single  instance.'  Even  this  doctrine,  as  thus 
qualifiedly  and  guardedly  stated  is  discarded  by  many  judges,  as  the 
reader  who  consults  the  various  cases  cited  in  this  chapter  will  see. 
This  matter,  however,  is  evidently  one  of  evidence,  as  mentioned  in  a 
note  to  the  last  section.  If  really  a  person  is  imi)elled  by  an  unseen 
power  which  he  cannot  resist,  no  court  and  jury  who  believe  this  fact 
will  hold  him  guilty  of  a  ciime. 

"14.  If  it  has  been  proved  that  the  mother  of  the  defendant  was 
insane,  and  that  insanity  in  the  mother  raises  a  strong  presumption  that 
it  is  transmitted  to  the  offspring,  yet  it  rests  upon  the  defendant  to 


HEHEDITAKY    INSANITY. 


123 


le  to  the 
,  broftder 
rou  upon 
standard 

•y,  stated 
lisease  or 
party  has 
;ly,  these 
led.  But 
I  the  law, 
entul  and 
man  may 
'  and  con- 
tible.  In 
oiling  dis- 
co uld  not 
1  for  the 
\s  to  com- 

Impulse  is 

ular  class 

IS,'  says 

n  irresist- 

of fence, 
ing  it  to 

under  a 

pable  of 
langerous 
lases.     It 

evinced 
as  thus 
Is,  as  the 

will  see. 
Ined  in  a 
In  unseen 
Ithis  fact 

[lant  was 
Ition  that 
aidant  to 


What  Is  a  "  Reasoimblo  Doubt." 


prove  that  he  was  insane  at  tlu  time  the  act  was  committed.  The  facts 
that  the  mother  was  insane,  that  the  twin  brother  of  the  mother  was 
also  insane,  and  that  a  cousin  was  insane,  if  proved,  would  not  he 
sufHcicntof  themselves  to  shov,'  insanity  in  tlie  defendant,  but  are  facts 
strongly  tending  to  show  hereditary  insanity  in  the  family,  anil  proper 
for  you  to  consider  with  the  other  testimony  in  the  case,  to  aid  you  in 
determining  whether  tiie  defendant  was  insane  or  not  when  the  act  was 
committed.  Hut  if  the  proof  sliows  that  tiie  defendant's  mother  became 
insane  after  his  birth,  and  her  insanity  was  the  result  of  the  loss  of  two 
children,  and  was  not  in  any  way  the  result  of  a  hereditary  tendency  to 
Insanity,  then  the  insanity  of  the  mother  is  entitled  to  no  consideration 
in  determining  the  question  of  the  defendant's  sanity  or  insanity  ;  and, 
so,  if  the  proof  shows  that  the  insanity  of  defendant's  cousin,  Hugh 
Manfred,  was  the  result  alone  of  an  injury  received  on  the  head  from 
the  kick  of  a  horse,  and  not  in  any  way  the  result  of  hereditary  insanity, 
in  that  event  Manfred's  insanity  can  throw  no  light  upon  the  defendant's 
insanity." 

Before  entering  upon  a  critical  examination  of  each  special  charge  to 
which  an  exception  was  reserved,  it  may  be  well  to  remark  that  an  erron- 
eous instruction  cannot  be  corrected  by  another  instruction  which  may 
state  the  law  accurately,  unless  the  erroneous  instruction  be  thereby 
plainly  withdrawn  from  the  jury.  The  effect  of  the  conflicting  instruc- 
tions can  only  be  to  confuse  the  jury;  and  as  they  must  follow  one  or 
the  other,  it  is  impossible  to  determine  whether  the  influence  of  the  court 
ill  such  a  case  has  been  exerted  for  good  or  evil.  The  defendant  is  en- 
titled to  a  plain,  accurate,  and  unquestioned  statement  of  the  law  from 
the  court.  Nothing  less  than  this  will  satisfy  the  requirements  of  the 
statute.  1 

The  sixth  instruction  given  at  the  request  of  the  State  is  in  such  lan- 
guage as,  by  necessary  inference,  aflirms  the  proposition  that  if  the  evi- 
dence satisfies  the  jury  of  the  guilt  of  the  defendant,  with  such  certainty 
tiiat  a  prudent  man  would  feel  safe  in  acting  upon  such  conviction  in 
his  own  important  affairs,  then,  in  such  case,  there  would  be  no  reason- 
able doubt  of  the  defendant's  guilt. 

Mr.  Starkie  states  it  as  the  law  that  "a  juror  ought  not  to  condemn 
unless  the  evidence  exclude  from  his  mind  all  reasonable  doubt  as  to  the 
guilt  of  the  accused,  and,  as  has  been  well  observed,  unless  he  is  so 
convinced  by  the  evidence  that  he  woidd  venture  to  act  upon  that  con- 
viction in  matters  of  the  highest  concern  and  importance  to  his  own  in- 

1  Clem  v.  State,  :il  I  ml.  480. 


194 


TIIK    LKOAL    TKST   <)l'    INSAMTV. 


Urmlli-y  v.  Stiili- 


terost."  '  This  rule  Is  slJited  in  (liHciissinj^  tlio  effect  produwd  on  the 
iiiltid  \ty  t'iiTumstuiiUal  eviiUMico  ;  but  it  iimtters  iiothiii<;  hy  what  class 
of  evidence  tliis  result  is  attaiiii'd.  'I'here  iiiiist  lu'  this  certiiinty  of  con- 
viction l)ef(»re  a  reasonable  d()nl)t  can  he  exclnded.  And,  we  ma}'  add 
to  Mr.  Starkie's  delhiition,  this  (lualitication,  that  it  must  he  such  a 
conviction  of  the  truth  of  the  proposition  that  a  prudent  man  would 
feel  safe  to  act  upon  the  conviction  under  circumstances  where  there 
was  iKj  compulsion  upon  him  to  act  at  all.  In  other  words,  a  prudent 
man,  compelled  to  do  one  of  two  things  affeclinii;  matters  of  the  utmost 
mouicnt  to  iiimself,  mii^iit,  and  iloulitless  would,  do  liiat  thins^  which  a 
mere  preponderance  of  evidence  satisfied  hin\  was  for  the  best;  and  yet 
such  a  conviction  would  fall  far  short  of  that  HMpiired  to  satisfy  the 
mind  of  a  juror  in  a  criminal  case.  It  must  induce  such  faith  in  the 
truth  of  the  facts  which  the  evidence  tends  to  establish  that  a  prudent 
man  might,  without  distrust,  voluntarily  act  u[)on  their  assumed  exist- 
ence in  matters  of  highest  import  to  himself. 

The  test  stated  by  tiie  court  that  the  conviction  must  be  such  as  would 
induce  one  to  act  in  regard  to  his  own  "important  affairs"  is  loo 
narrow.  It  must  be  sucii  a  certainty  as  would  justify  to  the  mind 
action  not  only  in  nuvtters  of  importance,  but  those  of  the  highest  im- 
port, involving  the  dearest  interests.  Nothing  short  of  this  can  serve 
as  an  example  of  that  moral  certainty  which  should  alone  authorize  a 
verdict  of  guilty.  "  Moral  certainty,"  says  IMr.  Burrill,  "  is  a  state  of 
impression  produced  by  facts  in  which  a  reasonable  mind  feels  a  sort  of 
coercion  or  necessity  to  act  in  accordance  with  it ;  the  conclusion  pre- 
sent^>d  being  one  which  cannot,  morally  speaking,  be  avoided  consist- 
ently with  adherence  to  truth."  - 

This  certainty  alone  excludes  all  reasonable  doubts.  One  may  act  in 
important  matters  without  having  reached  this  degree  of  rest  from 
doubt;  and  nothing,  therefore,  short  of  the  highest  personal  interests 
involved  should  be  placed  before  the  juror  as  a  test,  when  upon  his 
action  may  depend  the  life  of  another.  The  highest  interests  of  the 
prisoner  being  involved  in  the  decision,  the  juror's  supposed  action  on 
no  matter  of  mere  importance  to  himself  will  serve  as  his  guide.  Nor 
would  it  be  proper  for  the  juror  to  apply  the  test  to  matters  personal 
to  himself,  which  are  only  important  considered  in  comparison  with  his 
other  affairs.  One  may,  perhaps,  lead  a  life  so  near  on  the  level  that 
nothing  of  import  disturbs  the  even  tenor  of  his  way.  The  test  must 
be  unifoim;  and  though,  in  a  special  case,  the  conviction  of  the  de- 


'  stark  Kv.  (Sliarswooil),  805. 


-  Burrill  Cir.  Ev.  l'.)'.>. 


nUKDKN    OF    I'KOOF. 


I2r) 


Undcrstaiulliiii  iiml  Will. 


(mI  on  tlie 
what  class 
\\y  of  coii- 
'  mti}'  add 
1)0  Hiii'h  a 
nsiii  would 
iR're  tlieif 
ji  prtidoiit 
he  utmost 
\<^  wliicli  a 
t ;  and  yet 
satisfy  tlu; 
aith  in  tlio 
a  prudent 
noil  exist- 

•h  as  would 

rs"  is   loo 

tlie   mind 

ii<j;hest  ini- 

can  servo 

Luthorize  a 

a  state  of 

a  sort  of 

sion  |)ro- 

consist- 

tnay  act  in 
rest  from 

interests 

upon  his 

sts  of  the 

action  on 

ide.     Nor 

personal 
n  with  his 
evcl  that 
x'st  must 
f  the  de- 


fendant nniy  involve  oidy  a  short  imprisonnn'iit  or  fine,  still,  as  the  rule 
may  he  also  ap|»lii'd  to  cases  involvin<i  the  life  of  an  accused  person, 
the  illustration  employed  should  always  refer  to  the  liiLjhest  interest. 

In  this  ('ase  from  a  reference  by  the  Jud<;e  who  tried  the  cause  to  the 
decision  of  ArnnUl  v.  Sfatc.J  wo  must  suppose  that  what  was  there 
sriven  as  a  simple  illustration  of  a  case  whore  a  reasonaltle  doubt  would 
exist  has  boon  accepted  as  a  test  by  which  to  (h.-tormino  mH  doubts. 
The  opinion  was  nut  intondi'd  to  hi'  thus  understood. 

In  ri'i^ard  to  the  second  chartj;e,  it  was  plainly  erroneous,  as  it  reiiuired 
of  the  pi'isoner,  if  he  sought  to  avail  inmself  of  the  plea  of  insanity, 
that  he  "  must  i)rovo  the  fact  in  his  defence."  So,  also,  of  the  four- 
teenth charge. 

If  the  evidence  introduced  by  the  defendant  on  this  snlijo(  t  created  a 
reasonable  dinibt  in  the  mind  of  the  jury  as  to  the  sanity  of  the  dofond- 
aut,  he  sliould  have  gone  accpiit.  He  was  not  i-ccpiired  to  prove  his  in- 
sanity. The  legal  presumption  of  sanity  simply  dispenses  with  proof 
on  that  suliject  in  the  lirst  instance  on  the  part  of  tht;  State.  When, 
liowover,  the  defendant's  evidence  has  created  a  doulit  on  this  point, 
the  l)urdeu  falls  ui)on  the  State  of  proving  his  sanity.  The  instruction, 
indeed,  would  be  erroneous  by  reason  of  the  error  in  the  sixth  charge 
ill  regard  to  the  extent  of  proof  leiiuirod  to  remove  all  reasonable 
doubts. 

The  ninth  charge  is  objectionable,  also,  for  the  same  I'cason.  It  re- 
{[uires  the  defendant  "  to  prove  such  a  deprivation  of  the  reasoning  and 
mental  powers  at  the  time  of  the  killing  as  shows  that  the  defendant 
(lid  not  know  the  consequences  of  his  act,  and  that  it  Avas  a  wrong,  and 
that  it  was  illegal."  IIow  i)rove  this  fact?  By  a  prei)onderancc  of 
evidence?  Or  l)e3'ond  a  reasonable  doubt?  And,  again,  we  must  turn 
to  the  sixth  instruction  to  determine  what  is  such  a  doubt. 

IJut  the  instruction  is  erroneous  for  another  reason.  It  assumes  either 
that  the  mind  possesses  but  one  faculty,  the  cognitive,  or  jjowcr  to  .ap- 
prehend by  the  understanding,  or  that  this  faculty  alone  is  liable  to 
disease  which  may  relieve  the  sufferer  from  responsibility.  Neither 
hypothesis  is  true.  The  scientitic  world,  both  of  the  metaphysical  and 
physiological  schools  of  mental  philosophers,  have  accepted  the  division 
of  powers  announced  by  Kant,  the  cognitive  or  comprehending  power; 
tlic  feelings  or  capacity  for  pain  or  pleasure,  and  the  creative  or  will 
l)owcr,  without  which  latter  there  is  nothing  upon  which  to  rest  the  doc- 
trine of  free  agency  and  moral  and  legal  responsibility  to  the  law  for  an 


1  23  Iiid.  170. 


126 


THE   LEGAL   TEST    OF    IXSAXITY. 


Braillev  v.  State, 


act  done  or  omitted.  That  disease  may  successfully  assail  this  triune 
organization  is  not  denied;  und  that  its  assaults  are  limited  to  the  un- 
derst.inding  can  no  longer  be  contended  in  the  light  of  experience,  which 
exhibits  the  victims  of  a  lost  will  in  every  insane  hospital  in  the  civilized 
world.  Man,  under  the  influence  of  disease,  may  know  the  right,  and 
yet  be  powerless  to  resist  the  wrong.  The  well-known  exhibi^^ions  of 
cunning  by  persons  admitted  to  l)e  insane,  in  the  perpetratio..  of  an 
illegal  act,  would  seem  to  indicate  comprehension  of  its  evil  nature  and 
legal  consequences,  and  yet  the  power  of  self-control  being  lost  by 
disease,  there  can  be  no  legal  responsibility.  Repeated  instances  are 
given  where  persons  subject  to  temporary  parr  cysms  of  insanity  have, 
during  a  lucid  interval,  and  when  under  ai)prehension  of  a  renewed  at- 
tack, besought  their  friends  to  restrain  them  by  force,  that  they  might 
not  yield  to  some  uncontrollable  impulse  to  do  wrong. 

A  charge,  therefore,  which  limits  the  inquiry  of  the  jury  to  the  condi- 
tion of  the  cognitive  faculty,  is  erroneous,  because  mental  disease  may 
as  well  involve  the  will  as  the  understanding.  That  it  does  aiso  extend 
to  the  affections  is  equally--  well  established ;  and  perhaps  no  peculiarity 
of  the  insane  is  more  marked  than  the  unreasonable  aversion  exhibited 
by  them  towards  those  who  in  health  occupied  the  citadel  of  tlieir  affec- 
tions. This  species  of  insanity,  which  would  in  law  avoid  the  disposi- 
tion of  a  man's  property  1)y  will,  of  which  repeated  instances  are  given 
in  the  books,  acts  directly  u[)on  tlio  will,  and  often  assumes  complete 
control  over  tliat  power ;  and  when  this  result  is  reached  moral  and 
legal  responsi])iiity  are  at  an  end. 

In  determining  the  canity  or  insanity  of  a  testator,  undue  influence, 
prejudice,  or  a  morbid  affection  which  controls  his  will  are  well  known 
tests.  That  degree  of  influence,  either  external  or  internal,  which  de- 
prives the  testator  of  his  free  agency  avoids  the  will.  "  Ilonce,  any- 
thing in  the  character  of  the  will  wliich  renders  it  contrary  to  natural 
affection,  or  what  the  civil  law  writers  d  lominate  an  luidutiftil  testa- 
ment, as  where  children,  or  others  entitled  to  the  estate  in  case  of 
intestacy,  are  wholly  disinherited,  or  if  not  wholly  deprived  of  a  share, 
it  is  given  in  r  uch  unequal  portions  as  to  indicate  that  it  is  done  without 
any  just  cause,  and  wholly  de|)endent  upon  caprice,  or  over  persuasion, 
or  deception,  it  'nust  tdways  excite  apprehension  of  undue  influence  at 
the  very  least."  '  "  So,  wlier^  the  will  is  unreasonable  iu  its  provisions, 
and  inconsistent  with  the  duties  of  the  testator  witli  reference  to  his 
property  and  family,  this  will  inn)ose  upon  those  claiming  under  the 

>  Redf.  on  Wills,  ,V21. 


UNDEKSTANDING    AND    WILL 


127 


lis  triune 
o  the  un- 
ice,  which 
;  civilized 
•ight,  and 
bUions  of 
io.-  of  an 
ature  and 
<;  lost  by 
inccs  arc 
lity  have, 
lewed  at- 
icy  might 

lie  condi- 
oase  may 
io  extend 
:.'ciiHarit3'^ 
exhibited 
eir  affec- 
!  disposi- 
ire  given 
complete 
:)ral  and 

ifluence, 
known 
lich  de- 
ce,  any- 
natural 
testa- 
case  of 
1  share, 
without 
uasion, 
nee  at 
r'isions, 
to  his 
iev  the 


Insanity  may  Affect  Both. 


instrument  the  necessity  of  showing  that  its  character  is  not  the  off- 
spring of  mental  defect,  obliquity,  or  perversion."  ' 

This  is  a  full  recognition  of  the  position  that  the  power  of  volition 
may  be  so  far  impaired  by  disease  that  it  may  be  under  the  control  of 
the  perverted  affections ;  and  in  sucii  a  case  the  act  of  the  testator  is 
declared  not  his  voluntary  deed.  Why  should  the  influence  of  disease 
upon  this  power  of  the  mind  be  recognized  by  the  courts  in  civil  cases, 
:\nd  denied  when  applied  to  criminal  cases?  If  in  the  one  case  the  act 
be  declared  involuntary  because  the  will  is  so  prostrated  by  disease  as  to 
render  it  incapable  of  fol^pwing  the  understanding,  why  should  the  law 
exact  a  criminal  responsibilitj''  under  the  same  conditions?  No  one 
would  insist  upon  limiting  the  test  in  the  contest  of  a  will  to  the  ques- 
tion whether  the  testator  know  the  act  he  was  doing  was  right  or  wrong  • 
and  yet  under  this  test,  enforced  in  crir  inal  cases  alone,  a  man  might 
he  executed  for  a  homicide  whose  testament  would  be  avoided  on  the 
ground  of  his  insanit}'. 

The  doctrine  that  insanity  may  affect  not  only  the  understanding, 
but  control  also  the  power  of  volition,  was  fairly  recognized  by  Chief 
Justice  Shaw  in  the  case  of  CommomveaUh  v.  Ro'jers;'^  although  an  ap- 
parent reluctance  to  be  the  first  to  announce  a  doctrine  then  regarded  as 
radical  has  rendered  ihe  entire  opinion  more  unsatisfactory  and  confused 
than  any  other  proi  meed  l>y  that  learned  judge  and  distinguished  jur- 
ist. This  was  again  declared  by  Judge  Bukwstku  in  Commonwealth  v. 
IIiitikelL^hy  Chief  Justice  Pkklky,  in  i>tate  v.  Pih.\^  and  by  this  court, 
ill  the  case  of  Stevens  v.  State.'' 

We  will  not  attempt  to  discuss  the  (V.f*'erent  announced  chissifications 
of  insanity,  — with  them  we  iiavo  uot'j  .ig  to  do.  Their  teclinical  names 
and  nice  theoretic  J.  '^''•■.tinctions  have  long  enough  confused  courts  and 
cast  contempt  upon  the  verdict  of  juries.  Iiisanit}'  is  a  disease.  The 
effect  it  has  produced  uiion  tlie  faculties  of  the  reason  and  will  are  all 
we  are  concerned  W'ith.  It  is  no  more  the  province  of  a  court  to  in- 
struct the  jury  as  to  the  effect  this  disease  will  produce  in  a  special 
iuhject,  than  as  to  an  attack  of  cholera  or  fever.  The  effect  wlrch  has 
iicen  produced  is  a  question  of  fact,  and  to  be  proved  in  like  manner. 
Insanity  must  be  recognized  as  a  disease  whicli  may  impair  or  totally 
destroy  either  the  understanding  or  tlie  will,  or  indeed,  both  ;  and  all 
the  symptoms  of  such  disease  and  its  effect  upon  these  faculties  should 
go  to  the  jury,  and  as  a  matter  of  fact,  they  must  determine  the  mental 


>  Id.  515. 

'  7  Mete.  500. 

'  4  Am.X,aw  Rev.  240. 


«  40  \.  II.  399. 
s  31  Ind.  485. 


128 


THE    LEGAL   TEST   OF    INSANITY. 


Bnidlt'v  I'.  State. 


condiiion  of  tlie  defendant.  We  are  well  aware  that  the  docU-iiie  of  in. 
sanity  h.as  been  the  sliield  employed  by  counsel  to  cover  the  most  exe- 
crable crimes,  and  that  juries  have  disgraced  themselves  and  degraded 
their  office  in  applying  it  to  the  sanest  of  criminals.  In  special  cases  they 
will  not  distinguish  between  insanity  and  moral  depravity.  If  there 
ever  were  a  time  when  truth  might  be  withheld,  the  temptation  would  be 
strong  upon  us  now.  But  there  is  no  such  time  in  the  history  of  courts. 
It  is  our  duty  to  declare  the  law  as  we  understand  it,  fully  and  plainly, 
and  any  responsibility  for  Its  misa[)plication  must  rest  upon  those  who 
abuse  a  plain  truth.  We  are  satisfied  that  it  is  always  saftT  tl'  the 
law  should  he  well  understood,  than  that  it  should  seem  rlolhed  in 
mystery. 

Indeed,  it  nnist  be  evident  that  the  cases  where  the  shield  of  insanity 
protects  the  guilty,  are  tuosi;  alone  where  the  circumstances  attending  the 
act  appeal  so  strongly  to  the  symiiathy  of  the  jury  that  they  would  ac- 
quit without  even  a  pi-etext ;  where  the  feelings  control  the  judgment 
and  the  moral  obligation  of  their  oath,  ami  fit  the  triers,  if  not  th:,' 
tried,  for  an  inquest  of  insanity. 

The  tenth,  eleventh,  twenty-ninth,  and  thirty-second  instructions  are 
objectionable,  also,  as  limiting  the  question  of  insanity  to  the  under- 
standing. 

The  instructions  in  regard  to  intoxication  are  correct  in  the  abstract, 
and  cannot  be  criticised  in  the  absence  of  more  special  instructions  pre- 
sented by  the  defenilant,  with  the  exception  of  the  thirteenth  charge, 
which  limits  the  question  of  insanit}'  to  the  understanding.  Nor  do  we 
see  any  valid  objection  to  the  cliarge  in  regard  to  hereditary  insanity. 

The  thirteenth  charge  given  by  the  court  on  its  own  motion  contains 
an  extract  from  Bisho})'s  Criminal  Law,  which  we  will  not  review,  ex- 
cept to  remark  that  the  requirement  of  (Jibson,  C.  J.,  therein  contained, 
that  homicidal  mania,  to  be  recognized,  must  be  habitual,  would  find 
very  few  cases  Avliere  it  could  be  favorably  applied.  Before  the  defence 
could  be  available  the  victim  of  the  mania  would  doubtless  have  been 
confined  for  life,  or  executed,  in  the  effort  to  acouire  the  h  .,bit.  The 
entire  sections  quoted  were  not  proper  for  the  consideration  of  a  jury. 
The  law  that  goes  to  the  jury  from  the  court  should  be  given  as  law, 
umiueslioned  by  the  opinions  of  other  judges. 

In  regard  to  the  twenty-eighth  charge,  wherein  the  court  casts  dis- 
credit upon  a  medical  witness,  because  he  may  have  attended  the  trial 
from  an  adjoining  State  with  the  expectation  that  his  expenses  would  be 
paid,  it  must  receive  our  unqualified  disappr'^bation.  The  motive 
prompting  him  may  have  been,  and  doubtless  was,  one  in  the  interest  of 


MORAL    INSANITY. 


129 


Anderson  v.  Statu. 


humanity  and  science,  and  merited  no  implied  censure  from  tlie  court, 
!i  forum  where  truth  should  be  sought  from  all  sources.  The  twenty- 
second  charge  is  also  objectionable,  as  resting  upon  the  sixth  charge. 

The  fourth  charge  contains  the  same  extract  from  Greenloaf  on  Evi- 
dence that  was  declared  erroneous  in  the  case  of  Clem  v.  State.^ 

There  is  also  a  point  made  upon  the  introduction  of  evidence,  but  as 
this  forms  only  a  reason  for  the  granting  of  a  new  trial,  and  the  (jues- 
lion  may  not  be  again  presented,  we  will  not  extend  this  oi)iniou  to 
examine  the  ruling  of  the  court  thereon. 

We  desire  to  acknowledge  our  ol)ligation  to  counsel  for  the  labor  and 
learning  displayed  in  the  pre[)aration  of  the  argument  for  the  appellant. 
Judgment  reversed  and  the  cause  remanded  for  a  neiu  trial. 

Elliott,  J.,  without  assenting  to  all  the  reasoning  in  the  foregoing 
opinion,  concurs  in  the  decision  on  the  points  ruled. 


a  jury, 
as  law, 

Ists  dis- 
he  trial 

)uld  be 
I  motive 

h'cst  of 


MORAL  INSAMTY  — NEW  TRIAL  ON  GROUND  OF  NEWLY  DISCOVERED 
EVIDENCE  — DEGREES  OF  CRIME. 

Andeksson  V.  State. 

[43  Conn.  514;  L'l  Am.  Rep.  OC'J]. 
In  the  Supreme  Co.irt  of  Errors  of  Connecticut,  April  Term,  1876. 
Hon.  John  Duane  Pakk,  Chief  Justice. 


(I 


Ei-iSHA  Cakpkxtkk, 
Lahvette  S.  Fostku, 
DwK.UT  W.  Vai.ui:i:, 

DwitJIIT  LoOM'S, 


.Judges. 


1.  Moral  mania,  i.e.,  the  ilerangemeiit  of  the  nior.il  fivcvltics,  where  it  is  proved  to  exist 
i-hould  be  considered  by  llic  jury  in  deterniiiiug  the  degree  of  a  crime. 

'.'.  New  Trial  —  Newly  Disco'^Ciou  Svi'icuce.  —  A.  was  indicted  for  murder  in  the  first 
(k'ircc,  and  was  conviclL'd  after  offering  sonic  evidence  of  l);s  insanit.  A  lu'w  trial 
was  iifterwards  asked  for  on  the  ground  o'  newly  discoverea  evidence  of  his  insanity. 
Held,  that  it  should  be  granted. 

;i.  Deifreeh'  of  Crime. —  Though  a  total  want  of  responsibility  on  account  of  insanity  be  not 
sliowii,  v<"t  if  tlie  prisoner's  mind  was  so  far  impaired  as  *o  render  him  incapaljle  of  a 
lii'libcratc,  premeditated  murder,  he  should  be  convicted  only  of  murder  in  the  sccoud 
degree. 

Petition  for  a  new  trial  ujion   a  conviction  of  murder  in  the   first 
degree,  upon  the  ground,  among  others,  of  newly  discovered  evidence. 

J  31  llid.  4!iO 
'J 


130 


THE   LEGAL   TEST   OF    IXSANITY. 


Atulorson  i\  Statf 


The  facts  are  suriicieiitly  stated  in  the  opinion  of  tlio  court.  Those 
portions  of  the  opinion  devoted  to  a  consideration  of  the  question  of  tlie 
power  of  the  court  to  grant  new  trials  are  omitted. 

L.  N".  Bhjdcnbiirijh,  li.  S.  Pickett,  and  ./.  Bishop,  for  petitioner 

T.  E.  Doolittle  and  L.  M.  Hubbard,  for  the  State. 

Caui'entkk,  J.  The  charge  was  murder  in  tlie  first  degree.  Tlie  homi- 
cide was  achuitted  ;  the  vital  question  being  wliether  tlie  prisoner  was  in  a 
condition  of  mind  to  form  a  deliberate  purpose  to  take  life.  The  defence 
claimed  that  he  was  not,  for  the  reason  that  he  was  insane  ;  indeed  it  was 
claimed  that  he  was  not  criminally  responsible  at  all.  The  inquiry  there- 
fore was  not  merely  whether  he  was  irresponsible,  but  assuming  his 
responsibility  the  question  still  remained,  was  his  mind  so  far  impaired, 
as  to  raise  the  presumption  that  he  could  not  form  a  wilful,  deliberate, 
and  premeditated  purpose  to  take  life. 

The  burden  was  on  the  State  to  show  not  only  that  the  prisoner  was 
capable  of  committing  a  crime,  but  that  he  was  in  a  condition  to  plan 
and  execute  a  cool,  delibei-ate  murder.  The  degree  of  malice  essential 
to  murder  in  the  first  degree,  like  the  act  of  killing  or  an}  other  material 
fact,  must  be  proved  beyond  a  reasonable  doubt  or  the  jury  ought  not 
to  convict  of  the  greater  offence.  Upon  that  point  the  jury  might  have 
entex'tained  a  reasonable  doubt  and  at  the  same  time  may  have  been 
satisfied  that  the  act  was  a  ci'ime  and  that  it  was  their  duty  to  convict 
of  murder  in  the  second  degree. 

[The  court  here  considered  the  question  c .'  the  petitioner's  negligence 
in  discovering  the  new  evidence  and  the  objection  that  such  evidence 
was  cumulative.] 

We  do  not  care  to  state  at  length  the  testimony  in  the  case.  It  seems 
that  the  prisoner  notified  his  employers  that  he  should  give  up  his  work 
and  they  employed  others  to  take  his  place.  He  then  objected,  saying 
he  had  not  given  it  up,  and  insisted  that  Mr.  Norton  and  Mr.  Nettleton, 
who  had  been  employed  in  his  place,  should  not  go  to  work.  Being  a 
poor  man  and  having  a  family  to  support,  he  became  very  much  excited 
and  caused  some  trouble  in  the  shop,  for  which  he  was  arrested.  This 
was  on  Thursday.  Ilis  trial  was  to  take  place  on  Saturday.  Saturday 
morning  he  armed  himself  with  two  revolvers,  went  to  the  shop,  and 
commenced  firing  —  some  of  the  time  with  a  revolver  in  each  hand  — 
and  in  a  few  moments  he  had  shot  at  no  less  than  four  diffeivnt  persons. 
One  of  the  men  who  took  his  job,  Mr.  Norton,  was  shot  at  and 
wounded;  the  other,  Mr.  Nettleton,  although  close  liy  tlie  iirisoner. 
was  not  mole -ted.  Some  ten  or  twelve  persons  were  present,  and  the 
affair  occurred  in  broad  day  light.     Of  course  there  was  no  attempt  at 


MOTIVE    FOR   CRIME. 


181 


court.     Those 
question  of  tUe 

)etitioner 

;c.  The  homi- 
isoncr  was  in  a 
The  defence 
;  indeed  it  was 
e  inquiry  there- 
t  assuming  his 
0  far  impaired, 
ful,  deliberate, 

lo  prisoner  was 
idition  to  plan 
;nalioe  essential 
,  other  material 
jury  ought  not 
ury  might  have 
may  have  been 
luty  to  convict 

er's  negligence 
such  evidence 

lase.     It  seems 

Ive  up  his  work 

|bjected,  saying 

r,  Nettleton, 

■ork.     Being  a 

much  excited 

.rrosted.     This 

ay.     Saturday 

the  shop,  and 

each  hand  — 

'oifnt  persons. 

shot  at  ami 

the  prisoner. 

'sent,  and  the 

no  attempt  at 


llolutioiis  of  Parties  Relevant. 


concealment  and  hardl}'  a  possiliilit}'  of  escape.  If  the  prisoner  relloct(>d 
at  all  he  must  have  known  that  detection  and  punishment  were  certain. 

The  motive  for  the  crime  seems  to  bo  wliolly  inade(iuate.  His 
employers  had  only  accepted  his  resignation,  and  the  men  em[)loycd  in 
his  stead  had  only  offended  in  consenting  to  be  employed.  How  a 
rational  man  could  coolly  and  deliberately  plan  a  murder  of  these  parties 
or  of  any  one  of  them,  as  a  remedy  for  an  existing  evil,  is  ditlicult  to 
conceive.  Revenge,  the  only  other  possible  motive,  rests  upon  a  slight 
provocation. 

The  indiscriminate  nature  of  the  attack  makes  the  whole  matter  still 
more  mysterious  and  incomi)rehensihle.  Tlie  only  man  killed  was  one 
with  whom  he  had  had  no  trouble,  and  the  testimony  does  Udt  show  that 
lie  owed  him  any  grudge.  Tliis  indicates  not  so  much  a  deliberate  in- 
tention to  take  the  life  of  some  one  who  liad  injured  him,  as  a  disposi- 
tion to  destroy  life  generalh',  it  mattering  little  to  him  who  the  unfor- 
tunate one  might  be.  "In  a  case  of  homicide  the  relations  existing 
between  the  parties  are  worthy  of  much  consideration.  If  the  person 
slain  wore  a  parent,  a  child,  a  wife,  or  some  near  friend  or  relative,  and 
no  particular  reason  for  the  act  was  assigned,  it  might  raise  a  fair  pre- 
sumiition  that  it  was  due  to  insane  impulse.  If  the  individual  slain  be 
an  object  merely  of  indifference,  toward  whom  no  particular  feelings 
either  of  friends'dp  or  enmity  can  be  presumed  to  be  entertained,  the 
presumption,  although  much  less  strong,  is  still  in  favor  of  its  being  an 
insane  act.  Tlie  mere  motiveless  destruction  of  life  can,  with  difficulty, 
be  regarded  as  the  act  of  a  sane  mind.  If,  on  the  cf)ntrary,  a  motive 
exist,  or  if  feelings  of  enmity,  originating  in  no  delusion,  be  entertaine'' 
toward  the  person  .slain,  the  presumption  will  be  that  it  is  a  sanfe  act."  ' 
We  look  in  vain  for  any  mr^tive  for  taking  Hall's  life,  and  it  is  by  no 
means  clear  that  his  death  was  caused  by  inadvertence,  while  attemptino' 
to  take  the  lives  of  others. 

As  a  fitting  close  to  such  a  tragedy,  the  prisoner  made  two  unsticcess- 
ful  attempts  to  take  his  own  life.  It  is  strange  tliat  a  professed  Christian, 
as  the  prisoner  was  —  one  who  believes  in  future  rewards  and  punish- 
ments—  should  deliberately  imbrue  his  hands  in  the  blood  of  his  fellow- 
man,  and  then  rush  unbidden  into  tlie  presence  of  his  Maker  and  Judge, 
to  receive  the  punishment  due  to  his  crimes.  In  this  age  of  the  world, 
suicide  is  regarded  by  many  as  conclusive  evidence  of  insanity.  Ks- 
quirol,  a  celebrated  French  pliysician,  who  founded  a  lunatic  asylum  in 
1799,  which   became   a  model  for   all  similar  institutions  afterwards 

>  Dean'8  Medicul  Jurisprudence,  577. 


132 


THE   LEGAL   TEST   OF    INSANITY. 


Anderson  v.  State. 


founded  in  France,  and  who  published  a  work  on  mental  maladies,  thinks 
that  in  all  cases  the  suicidal  act  is  the  deed  of  a  monomaniac,  and 
results  from  a  pathological  change  in  the  brain  or  some  part  of  it. 
However  this  may  be,  it  is  probably  true  that  homicidal  mania  manifests 
itself  in  self-dostruction  more  frequently  than  in  any  other  form. 

In  civil  causes  the  act  which  is  the  occasion  of  investigating  the  men- 
tal condition  of  the  actor  is  carefully  considered.  If  it  is  a  rational  act, 
rationally  done,  it  is  stro'  evidence  of  a  sound  mind  ;  if  it  is  an  irra- 
tional act,  or  done  in  an  irrational  manner,  it  is  regarded  as  evidence  of 
insanity.  INIaking  due  allowance  for  temper  and  passion  we  see  no 
good  reason  why  the  same  r.ule  should  not  prevail  in  criminal  jurispru- 
dence. If  so  thei'e  is  certainly  to  be  gathered  from  this  transaction  some 
evidence  of  an  unsound  mind. 

The  testimony  shows  that  the  prisoner,  to  use  the  words  of  an  expert 
who  heard  the  trial,  was  a  man  of  "  irrital)le  temperament,  little  self- 
control,  a  strange  man,  disappointed  in  business,  out  of  work,  with  an 
increasing  family  and  fear  of  poverty,  and  added  to  all  that,  dyspepsia 
and  fever  and  ague."  It  also  appears  that  he  was  subject  to  great  nerv- 
ous excitement,  and  at  times  to  a  corresponding  despondency,  was 
easily  vexed  and  annoyed  by  his  fellow-workmen,  at  one  time  imagin- 
ing that  they  had  poisoned  the  water  that  he  drank  and  that  they  had 
conspired  against  him  for  the  reason  that  he  was  a  superior  workman, 
and  were  endeavoring  to  deprive  him  of  emi)loyment.  In  the  events 
which  immediately  preceded  the  homicide  he  spoke  of  them  as  trying  to 
kill  him  and  told  his  wife  that  he  intended  to  use  the  pistols  which  she 
saw  only  in  sell-defence.  His  arrest  also,  about  that  time,  and  being 
held  for  trial,  for  a  l)reacli  of  the  peace,  furtlier  excited  him.  It  also 
appears  that  during  the  latter  part  of  the  j^ear  187.'),  and  the  first  part 
of  the  year  1S71,  he  was  greatly  changed  from  what  he  fcn-merly  was, 
so  much  so  that  it  was  ap[)arent  from  those  wiio  knew  him  and  came  in 
contact  with  him,  being  a  subject  of  conversation  with  them.  One  man 
refused  to  emtiloy  him,  although  wanting  a  man  in  his  line,  because  he 
regai'ded  hiit.  as  half  crazy.  Several  others,  observing  his  singular 
conduct  and  noticing  the  change  that  had  come  over  him,  also  pro- 
nounced him  crazy.  It  is  also  manifest  that  he  was  naturally  of  a 
([iiarrelsome  disjiosition,  and  hail  a  violent  temper,  which  at  times  was 
ungovernable. 

The  State  denied  that  there  was  in  all  this  any  indication  of  insanity ; 
but  accountcfl  for  it  all  l>y  attributing  it  to  bad  temper  and  pecuHarity 
of  temperament  and  tlisixisition.  Upon  all  the  facts  which  were  i)laced 
before  the  jury,  giving  a  large  part  oi  his  personal  history  for  the  last 


Y,  was 
luagin- 
hoy  had 
oikman, 
events 
ying  to 
ich  she 
d  being 
It  also 
st  part 
\y  was, 
:une  in 
ne  man 
ause  he 
■lingular 


DIFFERENT   FOKMS    OF    INSANITY. 


Vi3 


Moral  Mania  :  Partial  or  GciuTal. 


few  years.  Dr.  Butler,  the  eminent  physician  who  was  for  thirty  years 
at  the  head  the  Retreat  for  the  Insane,  at  Hartford,  pronounced  him  in- 
sane. Drs.  Jewett  and  Bacon,  of  New  Haven,  two  eminent  pliysicians 
of  large  experience,  pronounced  him  sane. 

(The  court  then  considered  the  new  evidence  offered,  and  continued.) 

It  is  not  our  [)urpose,  nor  is  it  our  duty,  to  apply  tliis  evidence  to  any 
one  of  the  numerous  phases  of  insanity  recognized  by  courts  of  justicje. 
Indeed,  it  is  not  necessarj'  for  us  to  assume  that  it  does  or  may,  in  tlie 
opinion  of  the  jury,  establish  tlie  fact  that  the  prisoner  is  not  crimin- 
ally res))onsible  for  his  acts.  The  evidence  may  fall  far  short  of  this, 
and  still  satisfy  a  jury  that  he  ought  not  to  suffer  the  penalty  of  the 
crime  of  which  he  was  convicted. 

Perhaps  the  most  usual  form  of  insanity  which  comes  under  the  cog- 
nizance of  courts  of  justice  is  derangement,  total  or  partial,  of  the 
intellectual  faculties.  Tiiere  is  some  evidence  in  this  case  indicating 
delusion,  which  is  the  usual  and  perhaps  an  essential  manifestation  of 
this  form  of  insanity.  Should  the  jury  be  satisfied  of  its  existence 
they  would  probably  acquit  the  prisoner  on  that  ground.  As  to  the 
sufficiency  or  insufficiency  of  the  evidence  for  that  purpose  we  express 
no  opinion. 

Another  form  of  insanity  is  a  derangement  of  the  moral  faculties. 
In  this  there  is  usually,  though  not  always,  an  entire  absence  of  delu- 
sion. Moral  mania,  like  intellectual,  is  of  two  kinds,  partial  and  general. 
Instances  of  the  former  are  kleptomania  or  jiropensity  to  steal,  pyro- 
mania  or  propensity  to  destroy  by  fire,  and  liomkhlal  mania.  General 
moral  mania  "  consists  in  a  genei'al  exaltation,  perversion,  or  derange- 
ment of  function,  of  all  the  affective  or  moral  powers.  Those  who  have 
observed  and  written  upon  this  form  of  ruental  alienation,  unite  in  de- 
scribing those  who  labor  under  it  as  persons  of  singular,  wayward,  and 
fccentric  character.  Their  antipathies  are  violent  and  suddenly  taken ; 
their  suspicions  unjust  and  severe;  and  their  propensities  strong  and 
eagerly  indulged.  They  are  generally  proud,  conceited,  ostentatious, 
easily  excited,  and  obstinate  in  the  maintaining  of  absurd  o|)inions."  ' 
On  page  407  is  a  quotation  from  Iloffbauer,  in  which  it  is  described  as 
"  a  state  in  which  the  reason  has  lost  its  empire  over  the  passions,  and 
the  actions  by  which  they  are  manifested,  to  such  a  degree  that  the  in- 
dividual can  neither  repress  the  former  nor  abstain  from  the  latter.  It 
does  not  follow  that  he  may  not  be  in  possession  of  his  senses,  and  even 
his  usual  intelligence  ;  since,  in  order  to  resist  the  impulses  of  the  pas- 


>  Dean's  Med.  Juris.  400. 


134 


THE   LEGAL   TEST   OF   INSANITY. 


Anderson  v.  State. 


sions,  it  is  not  suffloicnt  that  tlic  reason  should  impart  its  counsels ;  we 
must  have  the  necessary  power  to  obey  them.  Tiie  maniac  may  judj^e 
correctl}^  of  his  actions  without  being  in  a  condition  to  repress  his  pas- 
sions, and  to  abstain  from  the  acts  of  violence  to  which  they  impel 
him." 

Tlio  subject  of  moral  mania  will  generally  be  found  to  have  exper- 
ienced a  great  change  in  temper,  disposition  and  moral  qualities,  either 
sudden  and  dating  from  some  reverse  (jf  fortune  or  loss  of  dear  friends 
or  relatives,  or  gradual  and  imperceptible,  consisting  in  an  exaltation  or 
increase  of  peculiarities  which  were  always  natural  or  habitual.  The 
moral  maniac  Avill  rarely  exhibit  any  signs  of  derangement  in  his 
conversation.  lie  will  often  be  regular,  systematic,  and  niethodical  in 
all  his  business  transactions,  and,  to  all  appearance,  regular  in  the  use 
of  his  intellect.  One  man  sees  him  in  business  transactions  only,  or 
converses  with  him  when  he  is  free  from  excitement,  and  he  does  not 
hesitate  to  pronounce  him  perfectly  sane ;  another  has  an  opportunity 
to  witness  some  strange  and  unaccountable  eccentricity  of  conduct, 
totally  irreconcilable  with  the  possession  and  exercise  of  a  sound  mind. 
The  facts  to  which  these  two  witnesses  would  testify  arc  apparently  con- 
tradictory, and  yet  they  are  perfectly  consistent  when  the  form  of  the 
malady  is  known.  The  conversalioa  discloses  intellectual  mania,  and 
the  conduct  moral  mania.  We  will  not  undertake  to  say  that  the  con- 
duct above  referred  to,  as  characterizing  one  who  is  afllicted  with  moral 
mania,  is  exactly  the  conduct  of  the  prisoner ;  but  the  description  is 
certainly  applicable  to  some  extent,  and  when  we  consider  that  the 
manifestations  of  insanity  are  as  various  as  characters  and  tempera- 
ments, that  the  insane  man  is  not  careful  to  walk  in  the  footsteps  of 
those  who  have  gone  before  him,  but  wanders  through  moral  or  intel- 
lectual darkness,  or  both,  and  makes  his  own  path,  we  are  by  no  means 
clear  that  a  jury  might  not  with  perfect  propriety  find  that  the  prisoner 
is  morally  insane.  Upon  this  point  the  newly  discovered  evidence  bears 
with  peculiar  force,  and  materially  strengthens  the  evidence  given  upon 
the  trial.  It  is  true  tliat  courts  have  hitherto  been  slow  to  recognize 
this  form  of  insanity  as  an  excuse  for  crime  ;  nevertheless,  that  it  exists 
is  well  understood,  and,  in  some  cases,  is  clearly  defined  by  medical  and 
scientific  men,  cannot  be  denied. 

It  is  not  our  purpose  either  to  ignore  or  recognize  this  form  of  in- 
sanity as  an  excuse  for  crime.  The  question  is  not  whether  an  act 
committed  under  its  influence  is  criminal ;  whether  the  actor  should  be 
punished  or  be  exempt  from  punishment;  hut  whether  he  is  a  proper 
subject  of  capital  punishment.     If  it  be  conceded  that  one   afflicted 


I 


-7 

•• 

MOHAL    INSAMTY.                                                  I. '{5 

Kc'k'vaiit  on  Decree  of  Criiiu'. 

els ;  we 

with  it  never  loses  the  power  to  distinguish  between  rigiit  and  wrong, 

J  judge 

L. ;      ^-      . 

and  is  at  all  times  master  of  himself,  and  may  control  his  ailions,  still 

at  the 
mpera- 
teps  of 
Intel- 
means 
isoner 
bears 
upon 
;ognize 
exists 
!al  and 


ii'oper 
lUcted 


his  mind  may  be  enfeebled  and  the  power  of  his  will  weakened,  so  that 
lie  will  readily  yield  to  the  influence  of  temptation  or  provocation  with- 
out that  wilful,  deliberate,  and  premeditati'd  malice  which  is  essential 
to  constitute  murder  in  the  tirst  degree.  The  Jury,  therefore,  <night  to 
consider  moral  mania,  if  satisticd  of  its  existence,  in  determining  the 
degree  of  crime,  and  give  it  such  weight  as  it  is  fairly  entitled  to  under 
the  circumstances. 

Tiiere  is  anotlier  view  which  may,  and,  we  think,  should,  be  taken  of 
this  case.  It  cannot  be  denied  that  the  j)risoner  is  a  man  of  an  excita- 
ble temperament,  a  quarrelsome  dis[)osition,  morbidly  jealous  and  sus- 
picious, imagining  evils  where  none  exist,  or,  at  least,  magnifying  those 
which  do  exist,  and  when  dyspepsia,  or  fever  and  ague  is  upon  him,  (jr 
there  is  any  other  exciting  cause  like  business  troubles,  di»ai)i)oint- 
ments,  etc.,  all  these  propensities  are  intensified  and  brought  into  greater 
activity.  Such  traits  are  the  seeds  which  are  likely  to  germinate  and 
ultimately  to  result  in  confirmed  insanity.  Now,  assuming  that  the 
disease  had  not  yet  reached  that  stage,  but,  on  the  contrary',  that  tiie 
[irisoner  could  not  only  distinguish  between  right  and  wrong,  but  had 
also  the  power  of  self-control  which  would  enable  him  to  do  the  right, 
and  refrain  from  doing  the  wrong,  is  it  not  quite  probable  from  this  evi- 
dence that  the  prisoner  was  laboring  under  an  unusual  and  unnatural 
exci.ement,  brought  upon  him  ])y  the  circumstances  in  which  he  was 
placed,  and  the  atmosphere  which  surrounded  him,  and  that,  by  reason 
thereof,  his  mind  was  in  such  a  state  and  condition  that  he  was  inc;ipa- 
ble  of  committing  murder  in  the  first  degree?  May  it  not  be  possible 
that  the  man's  unfortunate  temper,  excited  by  what  he  regarded  as  re- 
peated and  successive  provocations,  held  all  his  faculties,  moral  and  in- 
tellectual, in  subjection  to  S(jnie  extent,  so  that  he  was  incapable  of 
reasoning  correctly,  or  rightly  apprehemling  his  relations  to  others? 
And  that,  too,  not  only  while  he  was  under  the  direct  and  immediate 
influence  of  the  exciting  causes,  but  also  after  he  had  had  time  and 
opportunity  for  reflectic^n,  continuing  even  until  after  the  commission  of 
the  homicide?  The  common  law  is  considerate  of  those  who  take  life 
in  the  heat  of  passion,  but  makes  it  a  capital  offence  to  take  life  after 
time  enough  has  elapsed  for  the  passion  to  cool,  making  no  allowance 
for  cbfferences  m  temper  and  disi)osition.  Under  our  statute,  Avhich 
divides  murder  in  two  degrees  there  is  ample  opportunity  to  make  some 
allowance  for  those  cases  where,  from  any  cause,  excitement  and  passion 
continue  beyond  the  limits  allowed  by  the  common  law,  and  impel  to 


13(5 


TlIK    LKOAIi    TKST    OK    INSANITY 


Scott  V.  C'DiimioiiWfJiltli. 


the  coniinissiou  of  crimeH  which  would  not  bo  committed  in  cooler 
momi'iits.  Reason  and  humanity  rc(iuiro  tiiat  this  should  be  done. 
This  may  be,  and  we  are  inclined  to  think  that  it  is,  a  case  in  which  the 
jury  would  be  justilled  in  ro<^anling  the  distinction  just  adverted  to. 

Upon  a  careful  consii'eration  of  all  the  evidence  in  the  case,  includinif 
the  new  evidence,  it  seems  to  us  very  doubtful  whether  the  prisoner  is 
a  proper  subject  of  capital  punishment. 

We,  therefore,  advise  the  Superior  Court  to  grant  a  new  trial. 

In  this  opini(>n  Fostkk  and  Paudkk,  J.J.,  concurred;  Pauk,  C.  J., 
and  LooMis,  J,,  dissented  as  to  the  propriety  of  granting  a  new  trial 
for  newly  discovered  evidence. 


MORAL   INSANITY, 


Scott  v.  Commonwealth. 


[4  Mete.  (Ky.")  227.] 

Tn  the  Court  of  Appeals  of  Kentucky,  Summer  Term,  1863. 

Hon.  Alvin  DrvAi.L,  Chief  Justice. 
•'     Joshua  F.  Bii.mi t,  1 
"     B.  J.  Pi:rKi!s,  '  Judfips. 

"       R.    K.   WiM.IAMS  j 

1.  Moral  Insanity  —  When  an  Excuse  for  Crime.  —  Moral  insanity  existing  in  such  vio- 

lence as  to  render  it  impossible  for  tlie  party  to  resist  its  promptings  is  an  excuse  for 
crime. 

2.  Instructions.  —  Tlie  court  instructed  the  jury  that  they  should  not  acquit  on  the  ground 

of  moral  insanity"  unless  it  had  manifested  itself  in  former  acts  of  similar  character  or 
like  nature  to  the  offence  charged."    Held,  error. 


ArrEAi.  from  Mercer  Circuit  Court. 

Harlan  &  Harlan  and  Hardin  &  Kyle,  for  appellant. 

A.  J.  James,  Attornej'-General,  for  the  Commonwealth. 

Chief  Justice  Di'vall,  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  judgment  of  conviction  rendered  by  the  Mer- 
ger Circuit  Court,  at  its  April  term,  IHG.'J,  against  Edward  I).  Scott, 
who  was  indicted  for  the  murder  of  his  stepson,  James  Tilford. 

The  defence  set  up  on  behalf  of  the  prie^ner  was  that  he  was  insane 
at  the  time  of  the  commission  of  the  homicide. 


MOUAL    INSANITY. 


i.i; 


Krroiicoiis  Iiistrui'tloiis. 


Mcr- 

|Scott, 

insane 


The  grounds  mainly  relied  upon  for  reversal  are,  first,  that  the  court 
erred  in  instructing  the  jury;  and,  secondly,  in  admitting  improper  evi- 
dence. 

1.  The  evidence  relating  to  tlie  question  of  insanity,  as  set  out  in  the 
bill  of  exceptions,  is  quite  voluminous,  and  need  not  be  stated  or  re- 
ferred to  here,  further  than  to  say  that  it  condueed  to  sustain  the 
ground  of  defence  relied  on,  sulHcientlvso  at  least  to  authorize  the  court 
to  instruct  the  jury  iu  regard  loit. 

At  the  close  of  the  evidence,  the  court,  having  instructed  the  jury  in 
sul)Htance,  that  although  they  might  believe  that  the  accused  was  un- 
sound in  mind,  yet  such  unsoundness  did  not  justify  an  acquittal  on 
tlie  ground  of  insanity,  unless  they  believe  that  tlie  accused,  at  the  time 
of  tiie  commission  of  the  act,  did  not  know  right  from  wrong  in  refiT- 
ciice  to  the  killing  of  the  deceased,  or  if  ho  did  not  know  that  sui'h  kill- 
in<r  was  wrong,  that  his  mind  was  so  disordered  that  he  had  not  the 
mental  power  to  control  his  actions,  — gave  the  following  instruction, 
marked  No.  4  :  — 

"The  court  further  instructs  the  jury  that,  although  they  ])elieve 
that  the  accused  was  laljoring  under  what  is  termed  moral  insanity,  yet 
moral  insanity  is  no  excuse  in  law  for  the  commission  of  crime,  unless 
the  moral  insanity  overwhelmed  and  destroyed  the  faculties  of  the  mind 
to  such  an  extent  as  to  render  the  accused  incai)able  of  governing  his 
actions,  at  the  time  of  the  commission  of  the  act,  and  the  jury  ought 
not  to  acquit  upon  such  moral  insanity,  unless  it  had  manifested  itself 
in  former  acts  of  a  similar  character,  or  like  nature  of  the  offence 
charged." 

To  this  instruction  two  objections  are  urged  by  counsel  for  the 
appellant,  the  first  and  most  obvious  of  which  is  that  it  requires  the  jury 
to  find,  as  an  indispensal)le  condition  of  acquittal  on  tlie  ground  of 
moral  insanity,  that  the  insanity  had  manifested  itself  in  former  acts  of 
homicide. 

Such  is  undoubtedly  the  effect  and  meaning  of  the  instruction  accord- 
ing to  the  fair  and  natural  construction  of  tlie  language  used.  And  it 
hardly  needs  an  argument  to  prove  that  in  this  respect,  if  no  other,  thi' 
instruction  was  misleading  and  erroneons  and  [prejudicial  to  the  appel- 
lant. It  is  true  that  one  witness,  a  physician,  iu  a  very  bri  alemcnt 
of  his  professional  opinion,  touching  the  cliaracteiistics  of  this  disease, 
stated  that  "  moral  insanity  m  ver  springs  first  fully  developed,  but  is  of 
gradual  growth. "  His  view  is  sustained  as  well  by  adjudged  cases  of 
the  highest  authority,  as  by  the  most  approved  elementary  writers  on 
this  subject.     In  a  case  decided  by  the  Supreme  Court  of  Pennsylvania, 


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23  WiST  MAIN  STREET 

WE3STER,N.Y.  USSO 

(716)  S72-4503 


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THE    LKGAL    TKST    OF    INSANITY. 


Scott  i\  Coiniiionwcaltli. 


it  was  said  by  Chief  Justice  Gibson,  that  tiie  doctrine  wliich  acknowl- 
ed<;es  this  mania  is  dan<;erous  in  its  relations,  and  can  be  recognized  only 
Ml  tiie  clearest  cases.  "It  ought  to  be  shown  to  have  been  habitual,  or  at 
least  to  have  evinced  itself  in  more  than  a  single  instance.  *  *  * 
If  juries  were  to  allow  it,  as  a  general  motive,  operating  in  cases  of  this 
character,  its  recognition  would  destroy  social  order  as  well  as  personal 
safety.  To  establish  it  as  a  jusilication  in  any  particular  case,  it  ia 
necessary,  either  to  show,  by  clear  proof,  its  contemporaneous  exist- 
ence, evinced  by  present  circumstances,  or  the  existence  of  an  habitual 
tendency,  develope<l  in  previous  cases,  becoming  in  itself  a  second 
nature.  '  ' 

Aii  •c.\.!i,  therefore,  this  ground  of  defence  is  so  peculiarly  liable  to 
abuse,  tv  ;  '  r.d  against  which  the  utmost  care  and  circumspection  are 
re(iuire(i,  oa  the  part  of  the  court,  in  prescribing  to  the  jury  the  legal 
i)rincipu  s  u'hi:ing  to  it,  yet  no  authority  has  been  found  for  the  princi- 
[ile  embtulie*'  in  the  instruction  under  consideration,  which  requires  that 
moral  insanity,  before  it  can  be  made  availal>le  as  a  legal  excuse  for 
crime  must  have  manifested  itself  "  in  former  acts  of  similar  character, 
or  like  nature,  of  the  offence  charged."  And,  in  our  opinion,  the 
instruction  was  to  this  extent  erroneous. 

'i  lie  other  objection  to  the  instruction  is,  that  it  requires  the  jury  to 
believe  from  the  evidence,  that  the  moral  insanity  '"  overwhelmed  and 
destroyed  the  faculties  of  the  mind  to  such  an  extent  as  to  render  the 
accused  incapable  of  governing  his  actions  at  the  time."  We  are  not 
prepared  to  say  that  this,  if  properly  understood,  was  too  strong  a  state- 
ment of  the  principle,  or  that  it  was  practically  injurious  to  the  appel- 
lant. For  in  another  case  cited  by  "Wharton  &  Stille,  it  is  said  by 
Judge  Lkwis,  that  "moral  insanity  arises  from  the  existence  of  some 
of  the  natural  propensities  in  such  violence  that  it  is  impossible  not  to 
yield  to  them.  It  bears  a  striking  resemblance  to  vice,  which  is  said  to 
consist  in  an  undue  excitement  of  the  passions  and  will,  and  in  their 
irregular  or  crooked  actions  leading  to  crime.  It  is,  therefore,  to  be 
received  with  the  utmost  scrutiny.  It  is  not  generally  admitted  in  legal 
tribunals  as  a  species  of  insanity  which  relieves  from  responsibility 
f(ir  crime,  and  it  ought  never  to  be  admitted  as  a  defence  until  it  is 
shown  that  these  propensities  exist  in  such  violence  as  to  subjugate  the 
intellect,  control  the  will,  and  render  it  impossible  for  the  party  to  do 
otherwise  than  yield.  Where  its  existence  is  fully  established  this 
species  of  insanity  relieves  from  accountability  to  human  laws.     But 

1  WbartOD  &  Stille  Med.  Jur.,  sect.  M. 


MORAL  iNSAxr;"- 


139 


Must  Exist  to  \   'lilt  Kxtc'tit. 


acknowl- 
lized  only 

tual,  or  at 

»     »     * 

es  of  this 
i  personal 
case,  it  is 
>iis  c'xist- 
1  hal)ituai 
a  second 

r  liable  to 
action  are 
Y  the  legal 
;lie  i)nnci- 
[uires  that 
sxcuise  for 
character, 
inion,  the 

he  jury  to 
limed  and 
ender  the 
e  are  not 
g  a  state- 
he  appel- 
8 aid  by 
of  some 
le  not  to 
is  said  to 
in  their 
re,  to  be 
d  in  legal 
|onsibility 
intil  it  is 
lugate  the 
jrty  to  do 
;hed  this 
s.     But 


n 


this  state  of  mind  is  not  to  be  presumed  witliout  ovidenco,  nor  docs  it 
usually  occur  without  some  premonitory  symptoms  indicating  its  ap- 
proach." '  And  it  is  elsewhere  laid  down  in  the  same  treatise,  tliat  "  it 
is  not  to  be  supposed  that  a  single  impulse  is  diseased  while  all  the  other 
functions  of  tlie  mind  retain  their  healthy  action.  While  tlie  entire 
intellect  enjoys  sound  health  *lic're  is  nothing  in  which  a  morbid  desire 
of  theft,  murder,  etc.,  could  originate,  and  such  a  phenomenon  is  a 
psycohjgical  impossibilit}',  ami  the  assumption  of  such  requires  a  psyco- 
logical  contradiction.  A  mania  sine  drliro,  a  mania  without  a  morbid 
participation  or  disturbanie  of  the  percei)tive  faculties  is,  therefore,  out 
of  the  question,  as  a  <le>ire  to  injure  or  destroy  is  imjiossible  without  an 
act  of  the  mind  l>y  which  this  purpose  is  entertained,  and  as  reason  and 
understanding  are  alike  diseased,  whether  they  insinuate  a  wrong 
motive  for  the  morbidly  conceived  puii)use  of  the  act.  or  whether  they 
entirely  omit  the  suggestion  of  any  reason  whatever."  - 

Without  going  further  into  the  discussion  of  this  abstruse  and  per- 
plexing subject,  it  is  u[/i)arent  from  what  has  been  said  that,  before  this 
spec-ies  of  insanity  can  be  admitted  to  excuse  the  commission  of  crime, 
it  must  be  shown  to  exist  in  such  violence  as  to  render  it  impossible  for 
the  party  to  do  otherwise  than  yield  to  its  promi)tii)gs.  This  is  the  fun- 
damental fact  to  be  established  to  the  satisfaction  of  the  jury.  And 
whether  this  im[)ossibility  of  resistance  arises  fnmi  a  subjugation  of 
the  intellect  by  tiie  morbid  impulse  or  i>ropensity,  or  from  an  overwhelm- 
ing and  destruction  of  the  faculties  of  the  mind  to  the  extent  of 
rendering  the  party  incai)able  of  governing  his  actions,  is  a  point,  it 
would  seem,  of  not  much  practical  importance.  We  think,  however, 
tliut  the  form  of  expression  used  by  Judge  Lkwis,  in  the  passage  before 
quoted,  more  aptly  conveys  the  correct  idea,  and  is  therefore  less  cal- 
culated to  confuse  or  mislead  the  jury  than  that  adopted  by  the  coin-t 
lielow  in  the  instruction  we  have  been  considering.  Except  in  the 
particulars  mentioned  the  court  committed  no  error  in  giving  or  in 
receiving  instructions. 

2.  Nor  do  we  think  the  court  erred  in  allowing  a  witness  who  had 
been  introduced  by  the  defendant  to  be  recalled  and  examined  with  the 
view  of  laying  a  foundation  for  contradicting  her  testimony  in  chief,  by 
showing  that  she  had  made  statements  different  therefrom.  It  is  unnec- 
essary to  notice  this  point  further,  as  no  such  ques^bn  will  probably 
arise  upon  a  subsequent  trial. 


>  Med.  .Jur.,  sect.  55, 


»  Sect.  177. 


140 


THE    LEGAL   TEST   OF    INSANITY . 


I'fople  r.  Finley. 


For  the  error  mentioned,  the  jiulj^ment  is  reversed  and  the  cause 
remanded  for  a  new  trial  and  further  proceedings  not  inconsistent  with 
this  opinion. 


EMOTIONAL  INSANITY  —  BURDEN  OF  PROOF  —  REASONABLE  DOUBT. 

People  v.  Finley. 

[38  Mich.  482.] 

In  the  Supreme  Court  of  Michvjan,  April  Term,  1818. 

Hon.  James  V.  Campbell,  Chief  Justice. 
♦'     Isaac  Makstov, 

"    Bkn.iamin  F.  GiJAVEs,     dissociate  Justice*. 
"    Thomas  M.  Cooley, 

1.  Iteasoi.able  Doubt.  —  What  in  n  "  reasonable  doubt  "  defined. 

2.  "  Emotional  Insanity,"  i.e.,  "  that  convenient  form  of  insanity  which  enables  a  person 

wlio  doeB  not  choose  to  bridle  his  passion  to  allow  it  to  get  and  keep  the  upper  hand 
just  long  enough  to  enable  hiui  to  commit  an  act  of  violence  and  then  subside'' 
criticised. 

3.  Burden  of  Proof.  —  Kvidence  tending  to  show  the  prisoner's  insanity  docs  not  throw 

upon  the  prosecution  the  burden  of  ovurbaluuciug  it,  if  it  does  not  raise  a  reasonable 
doubt. 

ExcErxiONS  upon  a  judgment  from  Newaygo  County 

Kirrhner,  Attonie3'-G('neral,  for  the  People. 

Standish,  Fuller  &  Standish,  for  the  respondent. 

Campbell,  C.  J.  — Respondent  was  convicted  of  an  assault,  with  in- 
tent to  mnrdi'r  his  wife.  The  defe-^ce  on  whicli  the  questions  before  us 
are  raised  was  temporary  insanit}'.  It  is  claimed  the  court  below 
deprived  him  of  tiie  benefit  of  a  reasonable  doubt.  The  charge 
given  was  in  substance  that  the  element  of  malice  was  the  im- 
portant element  in  the  case,  and  must  be  made  out  not  merely 
by  a  preponderance  of  evidence,  but  beyond  a  reasonable  doubt. 
The  instruction  given  as  to  what  was  meant  by  a  reasonable 
doubt '    was    one    of    the    clearest    and    most     sensible     definitions 


'  "A  reasonable  doubt  is  afair  doubt  grow- 
ingout  iif  the  tesliinony  in  the  case  ;  it  is  not 
a  mere  imaginary,  captious.or  possible  doubt, 
but  u  fair  doubt  based  upon  reason  and  rnin- 
moil  sense;  it  is  such  a  doubt  as  may  leave 
your  minds  after  a  careful  examination  uf  all 


the  evidence  in  the  case,  in  that  condition 
that  you  cannot  say  you  have  an  a'liding 
niiiviction  to  a  moral  certainty  of  the  truth 
of  the  charge  here  made  against  the  respon- 
dent." 


INSANITY    NOT   A    LAW   TERM. 


141 


.he  cause 
itent  with 


5  DOUBT. 


bles  a  person 
3  upper  hand 
en  Bubside" 

iCB  not  throw 
a  reasonable 


:,  witli  in- 

befcre  us 

at  below 

B  charge 

the   ini- 

bt    merely 

Ue  doubt. 

leasonablc 
lefinitions 

|at  condition 

an  a'liding 

lot  the  truth 

Ithereapon- 


Emotioujil  Insanity  Criticised. 


we  hnxe  ever  seen,  and  such  as  to  be  intellijrible  to  any  jury  —  a  merit 
not  aH-ays  possessed  by  the  requests  to  charge  which  are  sometimes 
made  in  such  cases.  And  after  such  an  explanation  the  jury  were  tuUl 
not  to  convict  unless  they  had  an  abiding  conviction  to  a  moral  cer- 
tainty of  the  truth  of  the  charge. 

It  is  claimed,  however,  that  this  clear  and  fair  charge  was  nullified 
because  the  court  when  asked  to  make  a  separate  charge  upon  the  sub- 
ject of  the  mental  condition  of  respondent,  is  supposed  to  have  quah- 
lied  it  injuriously. 

The  court  in  regard  to  insanity',  charged  that  the  respondent  would 
be  blameless  in  law:   (1)  if  by  reason  of  insanity  he  was  not  cai)able  of 
knowing  he  was  doing  wrong;  or,  (2.)  if  he  had  not  power  to  resist  the» 
temptation  to  violate  the  law. 

This  was  correctly  charged.  The  law  hns  no  theories  on  the  subject 
of  insanity.  It  holds  every  one  responsible  who  is  compos  menti.s,  or  a 
free  agent,  and  every  one  irresponsible  who  is  uon  compos  mentis,  or  not 
having  control  of  his  mind.  Unfortiniately  for  the  administration  of 
justice,  persons  are  sometimes  found,  who  with  small  experynce  and 
hirge  conceit,  have  succeeded  in  formulating  theories  under  which,  if 
properly  applied,  there  would  be  hardly  enough  sane  persons  found  to 
sit  upon  juries  «. ;  attend  to  business.  If  the  term  insanity,  — which  it 
tn:iy  be  remarked  is  not  a  term  of  the  law  at  all,  —  is  so  far  enlarged  as 
to  include  persons  who  have  not  only  knowledge  of  wrong,  but  also 
Ciipacity  to  resist  it,  then  it  includes  persons  whom  the  law  deems  capa- 
ble of  crime,  and  is  a  phrase  entirely  inapplicable  in  civil  or  crim- 
inal law. 

There  is  some  reason  to  suppose,  from  the  frame  of  this  record,  that 
wh.1t  the  respondent  relied  on  as  "  temporary  or  emotional  insanity  " 
was  that  convenient  form  of  it  which  enables  a  person  who  does  not 
choose  to  bridle  his  passion,  to  allow  it  to  get  and  keep  the  upper  hand 
just  long  enough  to  commit  an  act  of  violence,  and  then  subside.  We 
iiad  occasion  to  refer  somewhat  to  this  subject  in  W'lch  v.  Ware ;  ' 
and  we  adhere  to  the  views  there  expressed,  that  if  a  person  voluntarily 
allows  his  passion  to  be  indulged  until  it  gets  the  temporar}'  control 
over  him,  he  is  responsible  for  the  condition  in  which  he  thus  falls,  as  a 
man  who  becomes  voluntarily  intoxicated  is  liable  for  his  drunken  vio- 
lence. It  is  certainly  a  strange  and  unsafe  doctrine  to  tolerate  that 
anytliing  should  be  deemed  innocent  insanity  which  in  no  way  affects  the 
inin<l  or  conduct  except  on  the  one  occasion  when  it  is  kindled  by  tem- 

'  M  Mich.  "7. 


1 


142 


THE   LEGAL   TEST    OF    INSANITY 


Pi'oi)lo  i".  Finlcy. 


porary  angt-r  and  sul)si(li'.s  willi  tho  jTrntification  of  tliat  malignant 
passion.  The  rulos  of  evidonco  as  adininisterod  in  this  State,  while  the}' 
have  opened  the  door  very  wide  to  the  testimony  of  ('xi)t'rts,  without 
any  overnice  st-rntiny  into  tiieir  expertness,  do  not  recognize  such 
mental  unsoundni-ss  as  requiivs  legal  inquiry,  as  ni'ccssaril}'  involving 
scientific  evidence,  or  as  beyond  tiic  domain  of  common  sense.  In 
Jicgina  v.  Oxfonl,  '  Lord  Dknman,  in  a  vi'iy  plain  and  fair  charge,  made 
this  remark:  "  It  may  V)e  that  medical  men  may  be  more  in  the  habit 
of  obseiTing  cases  of  this  kind  than  other  persons,  and  there  may  be 
cases  in  which  medical  testimony  may  be  essential ;  but  I  cunnot  agree 
with  the  notion  tiiat  moral  insanity  can  be  better  judged  of  l)y  medical 
•men  than  by  others."  We  entirely  concur  in  this  remark,  which  is 
more  strikingly  applicable  to  such  inquiries  as  seem  to  have  arisen  in 
the  case  at  bar. 

We  have  had  some  doubt  whether  an}'  r  ^stion  is  really  raised  on  the 
record,  inasnuich  as  we  are  not  informea  upon  what  sort  of  facts  the 
defence  of  insanity  was  based.  But  assuming  that  there  was  something 
which  might,  by  possibility,  amount  to  a  suspicion  of  insanitj^  and  that 
llic  jury  could  have  found  that  a  "•  paroxysm  of  temiiorary  or  emo- 
tional insanity  "  was  really  an  insane  condition  in  the  case  before  them 
(which  the  judge  ruled  they  might  do),  it  is  necessary  to  see  what  was 
complained  of. 

The  charge  excepted  is  this :  — 

"  Whose  duty  is  it  to  prove  that  the  respondent  was  in  a  mental  con- 
dition, at  the  time  of  committing  the  assault,  so  as  to  make  him  respon- 
sible for  his  acts?  I  say  to  you,  that  the  law  is,  that  it  is  the  duty  of 
the  defence  to  first  put  evidence  into  the  case  upon  the  subject  of  tem- 
porary or  emotional  insanity,  which  is  the  defence  here  set  up ;  but 
after  such  evidence  is  put  into  the  case  b}'  the  defendant — that  is,  evi- 
dence which  tends  to  show  that  the  respondent,  at  the  time  in  question 
here,  was  laboring  under  a  paroxysm  of  temporary  or  emotional  insan- 
ity (and  such  evidence  has  been  put  into  this  case  by  the  defence), 
then  it  becomes  the  duty  of  the  prosecution  to  prove  the  sanity  of  the 
defendant  by  at  least  a  fair  preponderance  of  evidence,  and  unless  you 
find  they  have  done  so,  the  defendant  must  be  acquitted." 

In  other  words,  the  judge  told  the  jury  that  upon  this  particular 
fact  the  introduction  of  any  evidence  whatever  by  the  defence  made  it 
necessary  for  the  prosecution  to  introduce  aflHrmative  proof  to  more 
than  counterbalance  it.     Inasmuch  as  it  must  be  for  the  jury  to  deter- 

'  0  C.  A  p.  5-25. 


HURDKX    OF    riJOOF. 


143 


malignant 

yhile  they 

»,  without 

lize   such 

involving 

enso.     In 

rgc,  made 

the  habit 

•e  may  be 

mot  agree 

y  mc'-lieal 

which  is 

arisen  in 


sed  on  the 
facts  the 
Borai'thing 
,  and  that 
7  or  cmo- 
fore  them 
what  was 


ontal  con- 
\n  resi)on- 
le  duty  of 
of  tem- 
iip ;  but 
at  is,  evi- 
question 
nal insan- 
defence), 
ty  of  the 
nless  you 

)articular 

e  made  it 

to  more 

to  deter- 


DefeiicH'  Must   Kaisc  a  I{(a«.(»iialili'   Dmilit. 


mine  whether  or  no  the  defendant's  testimony  li:is  l>een  overcome,  in 
their  minds,  ])v  adoiiuate  proof,  if  they  think  the  testimony  of  insanity 
is  tlms  overcome,  it  is  difllcult  to  conceive  how  they  can  fwrtiier  regard 
it,  or  how  tbey  could  entertain  a  reasoualtle  doulit  o\\  the  case  if  con- 
vinced of  the  falsehood  of  the  only  ground  on  which  the  defence  rested. 

It  certainly  is  not  true  that  the  introduction  of  testimony  of  such  in- 
sanity necessaril}'  throws  any  bunlen  on  tin-  prosecution  ;  for  the  jury 
may  not  regard  such  ti'stimoii}' of  any  weight  wliatevcr,  and  m:iy  not 
believe  the  opinions  of  the  witnesses.  It  is  only  wiicre  the  testimony 
creates  a  reas(mable  doubt,  that  tiierc  is  any  occasion  to  remove  the 
doid)t.  We  do  not  understand  the  charge  as  at  all  designed  or  calcu- 
lated to  qualif}'  what  had  been  before  said  on  the  general  question  of 
proving  malice  beyond  a  reasonable  doubt.  Ncjthing  but  the  defence  of 
insanity  had  any  bearing  on  the  (piestion  of  malice,  which  without  this 
could  not — as  we  judge  from  the  record  — have  been  open  to  any  con- 
troversy. We  must  take  the  whole  ch.'irge  together  in  construing  it, 
and  we  cannot  conceive  that  there  was  any  likelihood  of  the  jury  being 
led  to  a  wrong  conclusion  concerning  the  meaning  of  the  judge.  The 
particular  request  which  it  is  complained  he  did  not  give  is  not  so  ex- 
plained by  facts  'n  the  record  as  to  show  that  there  would  have  been  any 
impropriety  or  n.^ccssity  for  it  after  what  actually  was  given. 

We  are  notdi3[>osed  to  criticise  with  an}'  great  nicety  the  omission  of 
courts  to  give  requests  which  tend  to  distract  the  minds  of  jurors  by 
calling  special  attention  to  metaphysical  suiitleties  or  to  particular 
testimoii}'.  A  jury  knows  without  instruction  that  it  lias  a  right  to  con- 
sider any  testimony  which  has  been  allowed  to  go  before  it,  and  to  draw 
such  inferences  as  naturally  are  drawn  by  each  one  of  the  body.  When 
a  court  calls  attention  to  bits  of  evidence,  or  to  particular  witnesses,  more 
than  others,  there  is  some  danger  that  undue  prominence  will  be  given 
to  what  is  so  designated.  It  is  at  least  quite  as  safe  to  avoid  this  prac- 
tice, unless  circumstances  appear  to  retjuir*'  it. 

While,  as  before  suggested,  we  might  find  il  difficult  —  even  if  the 
charge  appeared  to  involve  doubtful  theories  of  law  —  to  hold  it  error 
without  a  more  full  showing  of  Its  bearing  than  we  can  gather  from  this 
record,  we  think  that  taking  the  whole  charge  together  there  is  no  rea- 
son to  believe  the  jury  were  misled  to  the  prejudice  of  the  respondent. 
We  think  judgment  should  be  rendered  on  the  verdict. 

The  other  justices  concurred. 


144 


TIIK    LKd.M.    TKfST    t)F    I.\!?AMTY, 


State  V.  IJruiitloii. 


MORAL  INSANITY  DISAPPHOVED  — TEST  OF  INSANITY. 
StATK    V.   liUAXDON. 

[H   .Jones  (L.)  4(;:!.J 
7/1  tlic  Supreme  Court  of  North  ('(irolinn,  June  Term,  1862. 
lloii.  HiciiMON'n  M.  Tkaissox,  Chief  Justice. 

"        WlI.I.IAM    11.   HaTIIK,    )    , 

.'      MAr.H.AsK.MAM.vJ'^"'^^'-'- 

1.  Uoral  Insanity  Disapproved.  —  Tlio  law  (iocs  not  recognize  any  moral  power  compel- 

ling a  man  to  do  whiit  hu  kuowM  to  lie  wrong. 

2.  Particular  RiKht  and  Wronpr  Test.  — The  insanity  which  takes  away  the  criminal 

(jnality  of  an  act  must  Ije  such  as  amounts  to  a  menial  ilisea-e,  ami  prevents  the  uccuscd 
from  knowing  the  nature  and  ({uality  of  the  act  he  was  doing. 

Iiidictmeiit  for  murder  tried  before  Bailey,  J.,  at  Fall  Term,  1H61,  of 
Caswell  Superior  Court. 

The  defendant  was  indicted  for  the  murder  of  one  William  J.  Con- 
nelly, his  father-in-law.  His  counsel  contended  that  though  he  knew  it 
was  wroui;  to  kill  the  deceased,  yet  if  he  was  impelled  to  the  act  by  a  moral 
power  which  he  could  not  resist,  he  was  excusable.  Verdict  guilt}',  and 
judgment  of  death.     The  prisoner  ajiijcaled. 

The  Attorneif-Gi'uentl  and  Winston,  Sr.,  for  the  State.  No  one 
appeared  for  the  prisoner. 

Maxi.v,  J. 

(After  passing  on  other  points.) 

Tiie  third  and  last  (juestion  made  upon  the  record  arises  out 
of  proofs,  in  respect  to  the  mental  condition  of  the  prisoner.  The 
record  states  the  prisoner's  counsel  insisted  that,  although  the  pris- 
oner knew  it  was  wrong  to  kill  the  deceased,  j'et,  if  he  was  impelled  to 
the  act  by  a  moral  power,  which  he  could  not  resist,  he  was  excusable 
The  words  "  mural  power  "  may  mean  threats,  duress  of  imprisonment, 
or  an  assault  imperilling  life,  which  is  the  usual  sense  of  the  phrase,  or 
it  may  mean,  some  supernatural  agency.  The  former  construction 
would  make  the  j)ositioa  of  the  counsel  entirely  inapplicable  to  the  case  ; 
we  therefore  adopt  the  latter.  The  position  thus  interpreted,  does  not 
fall  within  any  approved  definition  of  a  no)i  compos  mentis.  It 
assumes  that  the  accused  knew  the  nature  of  his  act  and  that  it  was 
wrong.     The  law  does  not  recognize  any  moral  power  compelling  one  to 


"  MOKAI-    IN.sAM  IV    "    CI!  ITKISEU. 


145 


Kiillit  and  Wroii;,'  Ti.sl. 


?C2. 


wcr  compel- 

tlic  criminal 
I  the  accused 


1,  1861,  of 

■m  J.  Con- 
ic knew  it 
)y  a  moral 
uilty,  and 

No    one 


irises  out 

ncr.     The 

the  pris- 

npelled  to 

xcusable 

isonment, 

lirase,  or 

istruction 

the  case ; 

does  not 

entis.     It 

!it  it  was 

use  one  to 


do  what  he  knows  is  wrong.     "''I'o  know  thi'  ri<j;ht   and  ,-till  tlu'  \v;  (iml; 
|inrsni\"  profccds  from  a  perverse  will  Itnmgiit  al)out  iiy  tln'  .-oihictioiis 
of  the  evil  one,  but  whit-h,  nevertheless,  wilii  the  aids  tli;it  lie  within 
oui"  reach,  as  we  are  taught  Ut  believe,  may  be   lesisted  and  overcome, 
otherwise  it  would  not  seem  to  be  consistent  with  the  priuc-ipli-s  of  jus- 
tice to  i)unish  any  mah'fjietor.     There  are  many  ;ip|ictiles   and  passions 
which  by  long  in<lulgence  acquire  a  mastery  over  men   more  or   less 
strong.     Some  persons  in<Iee<l  tleeni  themselves  inciipalilc  of  exerting 
>trciigth  of  will  sutHcient  to  arrest  tiieir  rule.  —  speak  of  them  as  irre- 
sistible, and   impotenlly  continue  under  their  dominion;  l)ut  tlie  law  is 
far  from  excusing  criminal  ticts  committed   under  tlie   impuUe  of  such 
passions.     Toexcuseone  from  criminal  res|)onsiliility  the  mind  must,  in 
the  laugiiagi'  of  the  Jmlge  below,  be  insane.     The  accu>e<l  slioiild  be  in 
such  a  stall'  from  mental  disi'.'isc  as  not  to  know  the  nature  and  (pudity 
of  the  act  he  was  doing,  or  if  he  did  know  it,  that  he  did  not  know  he 
was  doing  what  was  wrong,  and  this  should  be  clearly  established.     This 
test,  a  knowledge  of   right  and  wrong,  has   long  been  resorted  to  as  a 
general  criterion  for  deciding  upon  legal  accountaltility,   and  with   a 
restricted  application  to  the  act  then  about  to  be  committed,  is  approved 
l>y  the  highest  authorities.     But  we  do  not  undertake  to  lay  down  any 
rule  of  universal  application.     It  seems  to  be  chimerical  to  attempt  to 
do  so  from  the  ver}'  nature  of  things,  for  insanity  is  a  disease    and, 
as  is  the  case  with  all  other  diseases,  the  fact  of  its  existence  is   not 
established  by  a  single  symptom,  but  by  a  body  of  symptoms,  no  particu- 
lar one  of  which  is  present  in  every  case.     Imperfect  as  the   rule  may 
lie,  it  covers  a  great  variety  of  cases  and  may  aid  the  tribuiuils  of  the 
country  in  judging  of  this  most  difficult  subject.     The  case  put  of  a 
criminal  act  committed  under  the  belief  that  it  was  commanded  by  (!od, 
would  fall  under  the  rule.     The  perpetrator  in  such  would  not  know  he 
was  doing  what  was  wrong,  but  on  the  contrary,  believe  he  was  doing 
what  was  right  in  obeying  a  power  who  had   a  right  to  command  him. 
This  condition  of  mind  would  constitute  insane  delusion  in  respect  to 
the  particular  act  committed,  and  if  clearly  established  by  proof  of  pre- 
oxistent  facts,  would  excuse  from  responsibility. 

It  will  thus  be  seen  that  instructions,  in  conformity  with  the  argument 
of  prisoner's  counsel,  ought  not  to  have  been  given.  If  the  prisoner 
knew  that  what  he  did  was  wrong,  the  law  presumes  that  he  had  the 
p  iwer  to  resist  it,  against  all  supernatural  agencies,  and  holds  him  amen- 
able to  punishment.  There  is  no  error  in  the  instructions  actually  given 
upon  this  subject,  and  in  the  absence  of  any  prayer  for  other  specific 
10 


: 


14(> 


TUh    LK(}AL    TKST    OF    INSAMTY, 


liViii'li  /■.  ( 'nmiiic'ii\M'altli. 


iiistnictioiis,  tliorc  is  no  oiiiissiniHif  whidi  tlic  prisonef  lias  a  h'<>;!il  ri^ht, 
to  cunipliiiii. 

Tlicic  bt'iiig  no  error  found  upon  the  n-coid  tliis  must  he  cortiiiivl  to 
the  supt-rlor  court  of  law  for  Caswfll,  tli.it  the  saiil  court  may  proci-eil 
again  to  pronoiuice  the  judgment  of  the  law. 

Per  Curiam.  Jnilrfnit'tif  ntj\rmed. 


MORAL  INSANITY  — BURDP:N  OF  PROOF  — SANITY  PRKSl'MKO  TO  CON- 

TINUK. 

Lynch  v.  Commons  kaltil. 

[77  Pii.  St. -.'OJ.J 
In  the  Supreme  Court  of  Pennsylvania,  1874. 

Hon.  John  M.  Rk.\i>,  Chief  Justicf. 
"     (;i:ou(ii-.  SuAU.swooD, 
"     Ih'.MtY  W.  Williams, 
"      ri.Y.-isr.s  Mkiuik, 
"      Da.mi'.i.  A<ixi:\v, 


Judges. 


1.  Anger  and  Wrath  must  not  be  ronfoiiiulcil  with  actual  iiKs.inity. 

2.  The  Burden  of  Provinfr  Insanity  to  the  salisfactiun  of  ilic  jury  i~  on  iho  pruoner. 

.1.  Sanity  Presumed  to  Continue.  — WliLMO  a  peiwcMi  is  sane  sliortly  before  unci  adei  an 
act,  tlie  pi'usuin|ilioii    .s  tliat  lie  was  sane  at  the  tune. 

EiM!(»i;  to  the  Court  of  Over  and  Terminer  of  Alloirhany  County. 

Ambrose  E.  Lynch  was  indicted  for  thr  inurdei'  of  William  Iladfiold. 

The  evidence  was  that  the  prisoner  lived  with  his  sister,  who  was  a 
married  woman,  in  .Mle^iieny  City:  that  on  the  lltli  or  I'Jth  of  .June. 
1S72.  about  midnight,  the  di'ceased  was  found  bv(ieorge  Smithsoii  in  a 
street  in  Allegheny  City,  wounded  ;  shortly  afterwards  the  defendant 
came  u\)  with  a  knife  in  his  hand;  said  he  had  killed  that  man;  he  had 
cut  him  ;  he  said  ''  if  he  had  had  a  larger  knife  he  would  have  put  him 
through  faster."  To  an  otlicer  of  the  peace  who  took  him  t(»  the  mayor's 
oflice,  the  prisoner  said  whilst  ,::,oing  there,  ••  I  was  only  at  home  a  few 
Tninute»  when  I  heard  a  noise,  I  listened  and  heard  a  creaking,  took  out 
my  knife,  and  said  that  they  can't  fool  me  on  that  business."  Prisoner 
said  he  then  took  out  his  knife  and  opeiuMl  it ;  he  put  liis  shoulder  to  the 
door  arid  shoved  it  ;  it  did  not  go  in  the  first  time  ;  he  put  his  shoulth-r 
to  it  the  second  time  and  it  went  in  ;  just  as  the  door  went  ojien,  his 


LYNCH    I'.  COMMOXWKALTII. 


147 


Kvitli'iKu-  iinil  Iiistnictioiix. 


tiltiMl  U) 


'irm 


ed. 


T»>  CON- 


|in>onL'r. 

|inty. 

liaaricld. 

ho   \v;vs  a 

11  (if  .June. 

ithson  in  a 

defemlant 

[ill ;  he  liail 

'('  put  liiiu 

[ic  mayor' > 

pme  a  few 

:.  took  out 

Prisoner 
lUer  to  the 

shouhU'i 
open,  hi^ 


>istor  was  yoltin<^  (»iit  of  hcil  undressed;  lie  struck  tiie  dccoax-d  twice 
with  tlie  knife  whilst  ou  the  bed  ;  (h'cease<l  <^ot  npand  '•  went  for  nu-  on 
the  lloitr,"  and  prisoner  gave  him  anotlier  stroke  in  tiio  Ineast.  'I'.i 
:uiother  witness  prisoner  said,  lie  had  "  ;4iven  it  t<»  iiim  twice  in  the  hed 
and  <uice  afterwards;  "  he  said  he  had  found  the  deceased  in  his  sister's 
bed. 

Thesi'  statements  were  all  made  on  the  ni<;ht  of  the  killinij.  Tiie 
deceased  was  taken  to  the  mayor's  otilcc,  and  dii-d  about  one  o'clock  of 
the  same  ni^ht. 

The  sister,  examined  by  the  Commonwealth,  testified  that  her  husl)!ind 
had  been  away  al)out  live  weeks;  that  she  and  tlu^  deceased  wen;  sittini^ 
in  the  room  together,  but  (h'nied  thtit  tin-re  was  any  impropriety  between 
them.  Whilst  sitting  there  the  prisoner  burst  into  tlu;  room  and 
knocked  her  down  ;  when  she  came  to  the  (h'ceascd  was  gont^  Her 
I)rother  asked  her  if  she  was  in  bed  with  a  man  ;  her  l)rothcr  was  clear 
crazy  ;  he  acted  more  like  a  crazy  man  than  a  (hninken  one." 
Tl»e  defendant's  points  were:  — 

1.  If  on  the  night  of  the  killing  the  defendant  found  or  supposed  he 
found,  the  deceased  in  l)ed  with  defenchuit's  married  sister,  and  was 
thereby  so  much  excited  as  for  the  time  to  overwhelm  his  reason,  con- 
science and  judgment,  aihl  cause  him  to  act  from  an  nni'«)ntrollable  and 
irresistible  impulse,  the  law  will  not  hold  him  responsi1)le.  The  court, 
Starrett,  1*.  J.,  answered:  '"As  this  point  seems  to  amount  to  the  pro- 
position, that  if  the  i)risoner  was  temporarily  insane  at  the  time  he  did 
tlie  cutting,  he  is  not  guilty  of  any  leg;d  offence,  it  is  allinned  as  an 
:il)stract  i)roposition  of  l:iw.  If  the  defendant  was  actually  insune  at  the 
time  this,  of  course,  relieves  him  from  any  crimin:il  responsibility  from 
wliaU'ver  cause  the  iiis;iiiity  arose.  But  the  jury  must  not  confound 
Miiiier  or  wr;ith  with  ai-tual  insanity,  because  however  alisurdly  or  uii. 
reasonably  a  man  may  act  wlieii  exceedingly  angry,  either  with  or  with- 
onL  c:uise,  if  his  reason  is  not  actually  dethroned,  it  is  no  legal  excuse 
for  the  violation  of  hiw." 

'2.  If  the  jury  have  a  I'casonable  doubt  as  to  the  condition  of  the 
defendant's  mind  at  the  time  when  the  act  was  done,  he  is  entitled  to  the 
bonelit  of  such  doubt,  and  they  cannot  convict.  The  court  answered; 
••  The  law  presumes  sanity  when  an  act  is  done  if  no  insanity  is  shown 
by  the  evidence  ;  and  when  it  appears  thatamanwas  sane  shortl}'  pn- 
ceding  the  act,  and  shortly  after,  the  presumption  exists  of  sanity  at  the 
time  of  the  act,  and  no  jury  has  a  right  to  assume  ()therwi>e.  unless  tlie 
evidence  in  connection  with  the    act  fairly  convinces  them  that  the 


h'.H 


Tin:    LKOAL    TKST    OF    INSANITY. 


I.jncU  V,  C'oininoiiwfaltli. 


flcffnduiit  uiis   iniiinlly  insane  ut  tin- iromoiit   the  iict   was  ooininittcd. 
Tliirt  point  is  ri-fused." 

And  the  jiidjie  iiistructiiiir  the  Jury  said:  — 

"  It  is  ><aid  that  iniiuedialely  after  the  cnmmissioii  <if  the  deed,  the 
prisnner  looked  likt'  a  crazy  man.  Is  tlieie  anything  rejnaiUable  in  this? 
Wiini  u  man  permits  his  ungry  passions  to  become  aroused;  wiieji  he 
resolves  upon  deeils  of  violence  and  canics  them  into  execution,  even 
to  the  taking  of  the  life  of  a  fellow-being,  it  would  be  singular,  indeed, 
if  tile  vengeance  thai  rankled  in  liis  breast,  would  n  I,  clearly  manifest 
itself  by  outward  expressions.  If  such  nnii.'festMtinns  of  a  wicked 
heart,  bent  upiu  vi'Sigeance  and  the  gratilicati(  n  of  malicious  passion, 
are  to  bi'  seriously  considered  as  sullicienl  evidence  of  insanity,  how 
lire  deeds  of  violenct' and  bloodshed  ever  to  In?  punished?  A  Ii'arned 
jiuthor  has  said  that  tlie  mind  is  always  greatly  trouliled  when  it  is 
agitated  l»y  anger,  bcwiMercd  by  jealousy,  or  corruptid  by  an  uncon- 
(pierabh!  desire  for  vengeance.  Then,  as  is  commonly  said,  a  man  is  no 
longer  master  of  himself;  his  reason  is  affected  ;  liis  ideas  are  in  dis- 
order; he  is  like  a  madman,  lint  in  all  these  cases  the  man  does  not 
lose  his  knowledge  of  the  real  state  of  things;  he  ma}'  exaggerate  his 
misforlun>\  but  t!iis  misfortune  is.  nevertlu-less,  real,  and  if  it  carry  him 
to  conunit  a  criminal  act,  this  act  is  perfectly  well  motived.  In  such 
case  it  will  generally  be  found  that  revenge,  auger,  and  kindred  emo- 
tions of  the  mind  constitute  the  real  motive  which  has  occasioned  the 
homicidal  act,  if  such  act  has  been  conunitted."     *     *     * 

The  court  then  read  and  answered  the  di'fendiint's  i)oints,  as  before 
stated,  and  instructed  the  jury  as  to  the  character  and  effect  of  "  a 
reason.able  doubt." 

The  jury,  July  10,  1872,  found  the  prisoner  guilty  of  murder  in  the 
first  degree. 

After  a  motion  for  a  new  trial,  which  was  overruled,  the  prisoner  was, 
on  the  isth  of  January,  1.S73,  sentenced  to  be  hung.  The  prisoner  re- 
moved the  record  to  the  Supreme  Court  by  writ  of  error. 

Ferguson  &  Murray  f(jr  plaintiff  in  error. 

T.  M.  liayne.  District- Attorney,  and  W.  D  Moore,  for  the  Common- 
wealth. 

Rkad,  C.  J. 

(After  passing  on  other  points.) 

The  third  error  assigned  is  to  the  answer  of  the  court  to  the  defend- 
ant's first  point,  which  was,  "  that  if  ,on  the  night  of  the  killing,  defendant 
found,  or  supposed  he  found,  the  deceased  in  bed  with  defendant's 
married  sister,  and  was  thereby  so  much  '.excited  as,  for  the  time,  to 


AN(ir. 


Nor  i.\>.\Mrv 


ID  in 


ittcd. 


(U'iMl,  the 
le  in  this? 

wIk'U  ho 
;i()ii,  t'Von 
r,  indeed, 
'  niiinifest 
!i  wifkrd 
;  pn.ssion, 
inity,  how 
A.  K'tirned 
nhen  it  is 
an  uneon- 
nmu  is  no 
ire  in  dis- 

does  not 

:i;cr:ite  his 

carry  him 

In  snch 

ilrcd  cmo- 

ioiied  tlie 

as  before 
ect  of  "  a 

rder  in  the 

soner  was, 
risoner  re- 


Common- 


he  defcnd- 
defendant 
efendiiut's 
le  time,  to 


ronllimanc'c  of  Sanity  I'rt'siMUfd. 


ovorwlichn  his  reason,  consoipnco,  and  jndLrincnt.  and  cansc  liini  to  net 
frmii  an  nncontrollable  and  irresintihlf  impulse,  the  hiw  will  not  hohi 
him  rispoiisihic." 

This  seems  very  va<;ne  and  uncertain,  hut  the  court  say:  "As  the 
point  seems  to  Jiniount  to  the  proposition  that  if  th«'  jirisoncr  was  tem- 
porarily insane  at  th(^  time  lie  did  tiie  cuttinp:,  he  is  not.  jjuilty  of  any 
Ifjial  offence,  it  is  alllrmed  as  an  al)stract  principle  of  law.  If  the  de- 
fen(hint  was  actually  insane  at  the  time,  this,  of  coursi-,  relieves  him 
from  criminal  responsiliility,  from  whatever  cansc  tlu;  insanity  arose. 
Rut  the  jury  nnist  not  confound  aiijrer  or  wrath  with  actual  insanity; 
because,  however  absurd  or  nnreasonal)le  a  n;;iu  may  act  when  exceed- 
inijly  anjiry,  either  with  or  without  cause,  if  his  reason  is  not  actually 
dethroned,  it  is  no  lejjal  excuse  for  viol     .i>n  of  law." 

There  is  no  error  in  this  answer. 

The  fourth  error  assijrned  is  to  the  answer  to  the  defendant'^  second 
point,  which  is:  "That,  if  the  jury  haw  a  rcusonaltle  doul)t  as  to  the 
(condition  of  the  defendant's  mind  at  the  lime  the  act  was  done,  he  is 
entitled  to  the  benefit  of  such  doubt,  and  they  cannot  coiuict." 

As  to  the  second  i)oint  the  court  said  :  "  The  law  of  the  State  is,  t'at 
where  the  killing  is  admitti'd  and  insanity  or  want  of  Iciral  responsiijility 
is  alle<ied  as  an  excuse,  it  is  the  duty  of  the  defendant  to  satisfy  the 
jury  that  insanity  actually  existeil  at  the  time  of  the  act,  and  a  doubt 
as  to  such  sanity  will  not  justify  the  jury  in  acfinittiniif  upon  that 
"ground.  The  law  presumes  sanity  when  an  act  is  done,  if  no  insanity 
is  s'iown  in  the  evidence,  and  when  it  appears  a  man  was  sane  shortl}' 
preceding  the  act,  and  shortly  after,  the  j)resinnpti()n  of  sanity  exists 
at  t'  e  time  of  the  act,  and  no  jury  have  a  right  to  assume  otherwise 
unle-8  evidence  in  connection  with  the  act  convinces  them  that  the  de- 
fen  lant  Avas  actually  insane  at  the  moment  the  act  was  committed. 
This  point  is  refused."  and  rightly,  and  it  needs  no  argument  to  show 
th;it  the  court  were  entirely  correct  in  their  ruling  and  answer. 

The  sixth  error  is  not  sustained,  for  it  is  clear  the  ingredients  neces- 
sary to  constitute  murder  in  the  lirst  degree  were  proved  to  exist,  and 
in  determining  this  to  be  the  case,  we  have  reviewed  both  the  law  and 
the  evidence. 

Sentence  affirmed  and  record  remitted. 


l/iO 


THE    LEGAL   TEST   OF   INSANITY. 


McNasrhtcn's  Case 


insane  delusion  — responsinilit^  -test  of  insanity  — burden 
of  proof  — opinions  of  medical  men. 

McNaghten's  Case. 


[10  Cl.  ci  F.  200.] 
Before  the  Englixh  House,  of  Lords,  1843. 

1.  Insane  Delusion  —  Criminal  Responsibility  of  Party.  —  N'otwithstnnding  ii  party 

accused  did  au  act  whicf-  w.is  in  itself  criniiiinl,  under  the  influence  of  insane  delusion, 
with  a  view  of  redressintf  or  revenginjr  some  supposed  grievance  or  Injury,  or  of  pro- 
ducing some  public  bcneflt,  he  is  nevertheless  punishable,  if  he  knew  at  the  time  he  was 
acting  contrary  to  law. 

2.  Test  of  Responsibility  — Burden  of  Proof.  —  Hi  lie  accused  wascnii-icious  that  the  act 

wasonc  which  he  (>u,i;ht  not  to  do,  and  if  :he  act  was  at  tin;  same  time  contrary  to  law,  he 
is  punishable.  In  all  cases  of  thiii  kind  the  jurors  ought  to  bu  told  that  every  man 
is  presuinLMl  to  sane,  and  to  possess  a  sulllcicnt  degree  of  leason  to  be  responsible  for 
his  crimes  until  the  contrary  be  proved  to  their  satisfacticin  ;  and  that  to  ostablsh  a  de- 
fence on  th(!  ground  of  insanity,  it  must  be  clearly  proved  tiiat  at  the  time  of  commit- 
ting the  act,  ihe  parly  accused  w.ns  laboring  under  such  a  defect  of  reason,  from 
disease  of  the  mind,  as  not  to  know  the  nature  and  ({uality  of  the  act  he  was  doing,  or 
as  not  to  know  that  what  he  was  doing  was  wrong. 

3.  A  Party  LaborinK   Under  a  Partial  Delusion  must  be  considered  in  the  same 

siluatlon,  as  to  responsibility,  as  if  the  facts,  in  respect  to  which  the  ilelusion  exists, 
were  real. 

4.  Opinions  of  Medical  Men. —  Where  an  accused  person  is  supposed  to  bo  insane,  a  medi- 

cal man,  who  lias  been  present  in  court  and  heard  the  evidence,  may  be  asked,  as  a 
matter  of  science,  whether  the  facts  stated  by  the  witnesses,  supposing  them  to  be 
true,  show  a  state  of  mind  incapable  of  distinguishing  between  right  and  wrong. 

May  2r.  ;  ,Iine  I'.t,  1H43. 
The  prisoner  had  been  indictod,  for  tluit  ho,  on.thc  2(itli  day  of  Janu- 
nry,  1843,  at  the  parish  of  Saint  Martin- in-the-Kields,  in  tlie  county  of 
Middlesex,  and  within  t\w  jurisdiction  of  the  Central  Criminal  Court,  in 
and  upon  one  Edward  Diiininond,  felonionsly.  wilfiill\-.  and  of  his  malice 
aforethouglil ,  did  make  an  as.sanlt ;  and  that  the  said  Daniel  INIcNaghten 
a  certain  pistol  of  tiic  value  of  20s.,  loaded  and  charood  with  gunpowder 
and  a  leaden  bidlet  (wiiicli  pistol  he,  in  his  right  hand,  had  and  held),  to, 
against,  and  upon  the  said  Edward  Driimmond,  feloniously,  wilfidly. 
and  of  his  malice  aforethought,  did  shoot  and  discharge  ;  and  that  the  said 
Daniel  IMcNagliten,  witii  tlie  leaden  bullet  aforesaid,  out  of  the  lustol 
aforesaid,  by  force  of  the  gunpowder,  etc.,  tiic  said  Edwai'd  Di-ummond. 
in  and  upon  the  back  of  hiin  the  said  Edward  Diiuninoiid,  feloniously, 
etc..  did  strike,  penetrate,  and  wound,  giving  to  the  said  Edward  Diim- 
niond.  in  and  npon  tlie  back  of  tlie  said  Edmund  Dnimmond,  one 
mortal  wonnd.   etc..  of  which  mortal  wound   the  said   E.  Dnimmond 


M  NAOIITKN  S    CASE. 


151 


-BURDEN 


ling  a  party 
ne  delusion, 
y,  or  of  pro- 
time  he  was 


<  that  the  act 
ry  to  law,  he 
I  every  man 
jionsible  for 
-tabli^h  ade- 
!  of  commit- 
•cason,  from 
'as  doing,  or 


n  the  same 
ision  exists, 

ant",  a  medl- 
asked, as  a 
tliem  to  be 
rong. 

1848. 

of  Janu- 

)iinty  of 

Court,  in 

is  malice 

Xagliten 

iipowder 

leld),  to. 

wilfully. 

t  the  said 

le  pistol 

immond. 

iiiiously. 

rd  Duni- 

)nd,  one 

ummoud 


(liii'f  .liivticc  'J'iiiilars  cliaru,!' 


languished  until  the  25th  of  April,  and  thou  died;  and  that  by  tin- 
means  aforesaid  he,  the  prisoner,  did  kill  and  uuirder  the  said  Kdward 
Drummoud.     The  prisoner  pleaded  not  guilty. 

Evidence;  having  been  given  of  the  fact  of  the  shooting  of  Mr.  Diuni- 
mond,  and  of  his  death  in  consequence  thereof,  witnesses  were  called  on 
the  part  of  the  prisoner  to  prove  that  he  was  not,  at  tlu'  time  of  com- 
mitting the  act,  in  a  sound  state  of  mind.  The  medical  evidence  was 
in  sul)stauce  this:  Tliat  persons  of  otherwise  sound  mind  might  be 
effected  by  morbid  delusions;  that  the  prisoner  was  in  that  condition: 
that  a  person  so  laboring  under  a  moil)id  delusion  might  have  a  moral 
perception  of  right  and  wrong,  but  that  in  the  case  of  the  prisoner  it 
was  a  delusion  which  carried  him  away  beyond  the  power  of  his  own 
control,  and  left  him  no  such  perception  ;  and  that  he  was  not  capable 
of  exercising  any  control  ovi-r  acts<^vhich  had  connection  with  his  delu- 
sion ;  that  it  was  of  tlie  nature  of  tiie  disease  with  which  tlie  prisoner 
was  affected  to  go  on  gradually  until  it  had  reached  a  climax,  when  it 
burst  forth  witii  irresistil)le  inttjusity  ;  that  a  man  might  go  on  for  j'ears 
quietly,  though  at  the  same  time  under  its  intluence,  but  would  all  at 
once  break  out  with  the  most  extravagant  and  violent  paroxysms. 
Some  of  tiie  witnesses  who  gave  tliis  evidence  had  previously  examined 
the  jtrisoner;  others  had  never  seen  him  until  he  !i|)[)eared  in  coiu't,  and 
they  foime<l  their  opinions  on  Iiearing  the  evidence  given  by  the  other 
witnesses. 

Lord  Chief  Justice  Tinm>ai.  (in  his  chaige).  — The  (juestion  to  be  de- 
termined is  whether  at  the  time  the  act  in  (piestion  was  committed,  the 
prisoner  had  or  had  not  the  use  of  his  uuilerstanding,  so  sis  to  know 
!hat  he  was  doing  a  wrong  or  wicked  act.  If  the  jiu'ors  sliould  be  of 
n|iinion  that  the  prisoner  was  not  sensible,  at  the  time  he  committed  it, 
that  he  was  violating  the  laws  both  of  (Jod  and  man.  then  he  would  be 
( tititled  to  a  venlict  i;i  his  favor;  but  if,  on  the  contrary,  they  were  of 
opinion  that  when  he  con.mitted  the  act  he  was  in  a  sound  state  of  mind, 
then  their  verdict  must  be  against  him. 

Vcrtliii  "  t>of  fjuiltii,'"  o»  the  [iroimd  nf  innnnity. 

This  Vi'i'dict,  and  the  (|uestion  of  the  nature  an<l  extent  of  the  un- 
soiuidiiess  of  mind  which  would  excuse  the  couimis^siou  of  a  felony 
nf  this  sort,  having  been  made  the  sultject  of  deltate  in  the  House  of 
Lords.'  it  was  determined  to  take  the  opinion  of  the  judges  on  the  law 
goveiiiing  stich  cases,  Accoidingiy.  on  the  2fith  of  IVfay,  all  the  judges 
attended  their  lordships,  bu*  no  rjuestions  weie  then  put. 

>  Thu  «;tli  and  I'.tli  March,  l.«4:;:  see  llans-ardV  i>ebatei-,  vol.  CT,  pp.  af^^',  "14. 


152 


THE    LEGAL   TEST   OF    INSANITY. 


INIcNiv^hton's  Case. 


On  thi>  llHli  of  June  the  judsjos  a<jain  attended  the  House  of  Lords, 
when  (no  argument  havinij  been  had),  the  following-  questions  of  law 
were  propounded  to  tiieni :  — 

JlNE  10. 

1.  What  is  the  law  respecting  alletred  crimes  committed  by  persons 
allilcted  with  insane  delusion  in  respect  of  one  or  inore  particular  sub- 
jects or  persons  ;  as,  for  instance,  wlierc,  at  tlie  time  of  tlie  commission 
of  tlie  alleged  crime,  the  accused  knew  he  was  acting  contrary  to  law, 
bui  did  the  act  comphiined  of  with  a  view,  under  the  influence  of  insane 
delusion,  of  redressing  or  revenging  some  sup])()sed  grievance  or  injury, 
or  of  producing  some  supposed  public  benefit? 

2.  What  are  the  proper  (piestions  to  be  submitted  to  the  jury  when  a 
person  alleged  -o  be  aHlicted  with  insane  delusion  respecting  one  or 
more  particular  subjects  or  persons  is  charged  with  the  commission  of  a 
crime  (murder  for  example),  and  insanity  is  set  up  as  a  defence? 

3.  In  what  terms  ought  the  question  to  be  left  to  tlie  jury  as  to  the 
prisoner's  state  of  mind  at  the  time  wlien  the  act  was  committed? 

4.  If  a  person  under  an  insane  delusion  as  to  existing  facts  commits 
an  offence  in  consequence  thereof,  is  he  thereby  excused.  ? 

5.  Can  a  medical  man  conversant  with  the  disease  of  insanity,  who 
never  saw  the  prisoner  previousl}'  to  the  trial,  but  who  was  present  dur- 
ing the  whole  trial  and  the  examination  of  all  the  witnesses,  be  asked 
his  opinion  as  to  the  state  of  the  prisoner's  mind  at  the  time  of  the 
commission  of  the  alleged  crime,  or  his  opinion  wliether  the  prisoner 
was  conscious,  at  the  time  of  doing  the  act,  that  he  was  acting  contrary 
to  law,  or  whether  he  was  laboring  under  any,  and  what,  delusion  at  the 
time. 

Mr.  Justice  Mailk.  —  I  feel  great  difflculty  in  answering  the  ques- 
tions put  by  your  lordships  on  this  occasion  ;  first,  because  they  do  not 
appear  to  arise  out  of,  and  are  not  put  with  reference  to,  a  particular 
case,  or  for  a  particular  purpose,  which  might  explain  or  limit  the  gen- 
erality of  their  terms,  so  that  full  answers  to  them  ought  to  be  applica- 
ble to  every  possilde  state  of  facts,  not  inconsistent  with  those  assumed 
in  the  questions  ;  this  difflculty  is  the  greater  from  the  practical  experi- 
ence both  of  the  bar  and  the  court  being  confined  to  questions  arising 
out  of  the  facts  of  particular  cases  ;  secondly,  because  I  have  heard  no 
argument  at  your  lordship's  bar  or  elsewhere  on  the  subject  of  these 
questions  ;  the  want  of  which  I  feel  the  more,  the  greater  are  the  num- 
ber and  extent  of  questions  which  might  be  raised  in  argument ;  and 
thirdly,  from  a  fear,  of  which  I  cannot  divest  myself,  that  as  these 
(juestions  relate  to  matters  of  criminal  law  of  great  importance  and  fre- 


I 


RKiirr   AND    \Vi;ON(i    tkst. 


15;l 


The  Answer  of  .Maulo,  .J.,  to  the  Lciiul  T<'>1. 


f  Lords, 
s  of  law 

•NE  10. 
r  persons 
iiliir  siib- 
mmission 
y  to  law, 
of  insane 
)r  injury, 

•y  when  a 
ng  one  or 
5si()n  of  a 
ce? 

as  to  the 
ed? 
I  commits 

nity,  who 

sent  dur- 
)e  asked 

ne  of  the 
prisoner 
ontrary 

on  at  the 

le  ques- 
r  do  not 
•articular 
the  gen- 
applica- 
assumed 
expcri- 
arising 
leard  no 
of  these 
ihe  num- 
nt;  and 
as  these 
and  fre- 


(liiLMit  occurrence,  tlie  answers  to  tliem   by  the  judges   may  embarrass 
the  administration  of  justice  when  they  are  cited  in  criminal  trials.     Yax 
tliese  reasons  I   siiould  liave  been  glad   if  ni}'  learned   brethren  would 
liave  joined  me  in  prating  3'our  lordships  to  excuse  us  from  answering 
these  questions;  but,  as  I  do  not  think  they  ought  to  induce  mc  to  ask 
tliat  indulgence  for  myself  individually,  I  shall  proceed  to  give  such 
answers  as  I  can  after  the  very  short  time  which  I  have  had  to  consider 
the  questions,  and  under  the  dilficulties  I  have  mentioned,  fearing  that 
my  answers  may  be  as  little  satisfactory  to  others  as  they  are  to  myself. 
The  first  (juestion,  as   I  understand   it,  is,  in  effect :   what  is  the  law 
respecting  the  alleged  crime  when,  at  the  time  of  the  commission  of  it, 
the  accused  knew  he   was  acting  contrary  to  tlie  law,  but  did  the  act 
with  a  view,  under  the  inlluence  of  insane  delusion,  of  redressing  or 
revenging  some  supposed  grievance  or  injury,  or  of  j)r()ducing  some 
supposed  public  beneiit.     If  I  were  to  understand  this  question  accord- 
ing to  the  strict  meaning  of  its  terms,  it  would  re(iuire,  in  order  to  an- 
swer it,  a  solution  of  all   (piestions  of  law  which  could   arise  on  the 
circumstances  stated   in  the  (piestion,  cither  by  explicitly  stating  and 
answering  such  fpiestions,  or  l)y  stating  some  principles  or  rules  which 
would  suffice  for  their  solution.     1  am  (luite  unal)le  to  do  so,  and,  in- 
deed, doul)t  whether  it  be  possible  to  be  done,  and  therefore  request  to 
bo  permitted  to  answer  the  question  only  so  far  as  it  comprehends  the 
question,  whether  a  person  circumstanced  as  stated  in  the  question,  is, 
for  that  reason  only,  to  be  found  not  guilty  of  a  crime  respecting  which 
the  question  of  his  guilt  has  l»een  duly  raised  in  a  criminal  proceeding? 
and  I  am  of  opinion  that  he  is   not.     There  is  no  law  that  I  am  aware 
of  that  makes  persons  in  the  state  described  in  the  (piestion  not  respon- 
silile  for  their  criminal  acts.     To  render  a  person  irresponsible  tor  crime 
on  account  of  unsoundness  of  mind,  the  unsoundness  should,  according 
to  the  law  as  it  has  long  been  understood  tmd  held,  be  such  as  rendered 
him  incapable  of  knowing  right  from  wroiiii'.     'a  he  terms  used  in  the 
<luestion  cannot  be  said  (with  reference  only  to  the  usage  of  language) 
to  be  equivalent  to  a  description  of  this  kind  and  degree  of  unsound- 
ness of  mind.     If  the  state  described  in  the  question  be  one  which  in- 
volves, or  is  necessarily  connected  with  such  an  unsoundness,  this  is 
not  a  matter  of  law,  l)ut  of  physiology,  and  not  of  that  obvious  and 
familiar  kind  as  to  be  inferred  without  proof. 

Second,  the  questions  necessarily  to  be  sid)mitted  to  the  juiy  are 
those  questions  of  fact,  which  are  raised  on  the  record.  In  a  criminal 
trial,  the  question  commonly  ;s,  whether  the  accused  be  guilty  or  not 
guilty;  but  in  order  to  assist  the  jury  in  coining  to  a  right  conclii- 


154 


rm.  i,K<iAL  TKsr  ok  insanity 


MrNiUXliti'li'-  (';isc 


sion  on  tliis  lu'cissary  ami  iiltiinnte  f|UC'stion.  it  i>  usual  and  |)r<)pc'r  to 
siil)niit  sue. I  sii'hoidinalc  or  intt'iinoliato  questions,  as  tlic  <M)nrst>  wiiich 
the  trial  lias  taken  may  have  ina<le  it  convenient  to  direct  then*  attention 
to.  What  tlios«'  (lueslions  an-,  and  the  niunner  of  .suhuiitting  tluni.  is  a 
matter  of  discretion  for  the  Judire  ;  a  discretion  to  lie  i>uided  by  a  con- 
sideration of  all  the  circumsiances  attending  the  inquiry.  In  perform- 
ing this  duty,  it  is  sometimes  necessary  or  convenient  to  inform  the  jury 
as  to  the  law ;  and  if  <>n  a  tiial  such  as  is  suggested  in  the  (luestion,  he 
should  have  occasion  to  state  what  kind  and  degree  of  insanity  would 
amount  to  a  defence,  it  should  be  stated  conformably  to  what  I  have  men- 
tioned in  my  answer  to  the  first  question,  as  being,  in  ray  opinion,  the 
law  on  this  subject. 

Third.  There  are  no  terms  which  the  judge  is  b}'  law  required  to  use. 
Tliey  should  not  be  inconsistent  with  the  law  as  above  stated,  but 
should  be  such  as  in  the  discretion  of  the  judge  are  proper  to  assist  the 
jury  in  coming  to  a  riglit  conclusion  as  to  the  guilt  of  the  accused. 

Fourth.  The  answer  which  I  have  given  to  the  first  (jucstion  is  appli- 
caltle  to  this. 

Fifth.  Whether  a  (luestion  can  be  asked  dci)ends  not  merelj*  on  the 
question  of  fact  raised  on  the  record,  but  on  the  course  of  the  cause  at 
the  time  it  is  proposed  t(^  ask  it.  an<l  tlu-  state  of  an  inquiry  as  to  the 
iruilt  of  a  i)ers()n  cliarnred  witli  a  crime,  and  defended  on  the  ground  of 
insanity  may  lie  sudi.  that  such  a  (piestion  as  either  of  those  suggested 
is  proper  to  be  askeil  an<l  answci'cd  tliougli  the  witness  has  never  seen 
the  ])erson  before  the  trial,  an«l  though  he  has  merely  been  present  and 
heard  the  witnesses ;  these  circumstances  of  his  never  having  seen  the 
person  lu'fore,  and  of  his  having  merely  been  present  at  the  trial,  not 
being  necessarily  sutlicient.  as  it  seems  to  me,  to  exclude  the  lawfulness 
of  a  question  which  is  otherwise  lawful:  though  1  will  not  sa}' that  an 
inciuiry  might  not  bi'  in  such  a  state  as  that  these  circumstances  should 
have  such  an  effect. 

Supposing  there  is  nothing  else  in  the  state  of  the  trial  to  make 
the  ([uestion  suggested  proper  to  be  asked  and  answered,  excei)t  that 
the  witness  had  been  present  and  heard  tlie  evidence ;  it  is  to  be  con- 
sidered whetlicr  thai  is  enough  to  sustain  the  (piestion.  In  principle  it 
is  open  to  this  objection,  that  as  the  opinion  of  the  witness  is  foundeil 
on  those  conclusions  of  fact  which  he  formed  from  the  evidence,  and 
as  it  does  not  appear  what  those  conclusions  are,  it  may  be  that  the 
evidence  he  gives  is  on  such  an  assumption  of  facts  as  makes  it  irrele- 
vant to  the  iiuiuiry.  But  such  (|Uestious  have  been  very  frequently 
asked,  and  the  evidence  to  which  thcv  arc  directed  has  l)een  irivcn,  ami 


M   NA(illTKN  S    CASK. 


l.-).-) 


Answer  of  ('.  .1.  Tiiidiil  to  tlic  Lords. 


jioper  to 
I'so  wliic'h 

attention 
lluni.  is  a 
by  a  <'on- 

pcrforni- 
1  the  jury 
estion,  he 
lity  woiikl 
have  jncn- 
)inion,  tlie 

•cd  to  use. 
Latcd,  Itiit 
assist  ihc 
used, 
n  is  appli- 

ely  on  the 

le  cause  at 

as  to  the 

ground  of 

suirjxested 

Inc'ver  si'on 

Iresent  and 

seen  tlu' 

trial,  not 

iwfulness 

ly  that  an 

es  sliould 

1  to  make 

ceept  that 

|to  1)0  con- 

Irinciplc  it 

Is  founded 

|(>n('e,  and 

til  at  t'le 

h  it  irrele- 

friHiuently 

rivi'ii.  and 


has  never,  that  1  am  aware  of,  been  successfully  objected  to.  Kvidencc 
most  clearl)-  open  to  this  ol)jection,  and  on  the  admission  of  which  the 
evi'nt  of  a  most  important  trial  probably  turned,  and  was  received  in 
the  case  of  T/tc  Qaocn  v.  MrNayhten,  tried  at  the  ccntial  criminal 
court,  in  March  last,  before  the  Lord  Chief  Justice,  Mr.  Justice  Wil- 
liams and  Mr.  Justice  CoLKUiiMiE,  in  whicli  counsel  of  the  highest  emi- 
nence were  engaged  on  both  sides  ;  and  I  think  the  course  and  i)raetiee  of 
receiving  such  evidence  confirmed  by  the  very  high  authorit}'^  of  tliesc 
judges,  who  not  only  received  it,  but  left  it,  as  I  understand,  to  tlie 
Jury  without  any  remark  derogating  from  its  weight,  ought  to  be  held 
to  warrant  its  reception,  notwithstanding  the  objection  in  principle  to 
which  it  may  be  open.  In  cases  even  where  the  course  of  })ractice  in 
criminal  law  has  been  unfavorable  to  parties  accused,  and  entirely  con- 
trary to  the  most  obvious  principles  of  justice  and  humanity  as  well  as 
those  of  law,  it  has  been  lield  that  such  i)ractice  constituted  the  law, 
and  could  not  be  altered  without  the  authority  of  rarliament. 

Lord  Chief  Justice  Tixdal.  —  My  lords,  her  jNIajesty's  judges  (with 
the  exception  of  Mr.  Justice  ]NL\i"Li;,  who  has  stated  his  opinion  t<^  your 
!ordships),  in  answering  tiie  <)uestions  |>roposed  to  thembyj'our  lord- 
sliip's  House,  think  it  right  in  the  first  place  to  state  that  they  have  for- 
!iornc  entering  into  any  particular  discussion  upon  these  ([uestions  from 
the  extreme  and  almost  insuperable  ditliculty  of  applying  those  answers 
to  cases  in  which  the  facts  are  not  brought  judicially  before  them.  The 
facts  of  each  particular  case  must  of  necessity  present  themselves  witli 
endless  variety,  and  with  every  shade  of  difference  in  each  ease,  and  as  it 
is  their  tluty  to  declare  the  law  upon  eacli  particular  case,  on  facts  proved 
iteforethem,  and  after  hearing aigument  of  counsel  thereon,  they  deem 
it  at  once  impractica])le,  and  at  the  same  time  dangerous  to  the  admin- 
istration of  justice,  if  it  were  practicable,  to  attempt  to  make  minute 
ap[ilicaiions  of  the  principles  involved  in  the  answers  given  by  them  to 
your  lordship's  questions. 

l  hey  have,  therefore,  confined  their  answers  to  the  statement  of  that 
whi  el  I  they  hold  to  be  the  law  upon  the  abstract  *iuestion8  proi)osed 
liy  3'our  lordships ;  and  as  they  deem  it  unnecessary  in  this  j)articul.Mr 
case  to  deliver  their  o[)inions  seriatim,  and  as  all  concur  in  the  same 
opinion,  they  desire  me  to  express  such,  their  unanimous  opinion,  to 
your  lordships. 

rise  lirst  question  proimsed  by  your  lordships  is  this  :  '•  What  is  the 
law  respecting  alleged  crimes  con.'nitted  by  persons  afllieted  with  in- 
sane <lelusion  in  respect  to  one  or  m>.irp  particular  subjects  or  persons; 


loG 


TIIK    LEGAL    TK.ST    OV    INSANITY 


McXii'jthtfii's  Cast! 


as  for  instance,  wlicre  at  the  time  of  tlie  commission  of  the  alleged 
crime  the  accused  knew  he  was  acting  contrary  to  law,  but  did  the  act 
complained  of  with  a  view,  undor  the  inlhience  of  insane  delusion,  of 
redrcssiiiu;  or  revenging  some  supposed  grievance  or  injury,  or  of  pro- 
ducing some  supposed  pul)lic  henelit?  " 

In  answer  to  wliich  (lucstion,  assuming  that  your  lordships'  inquiiies  are 
conllned  to  tliose  persons  who  labor  under  such  partial  delusions  only, 
and  are  not  in  otiier  respects  insane,  we  arc  of  o[)inion  that,  notwith- 
standing tlie  party  accuseil  did  tlie  act  eomphxined  of,  with  a  view,  under 
the  inlluence  of  insane  delusion,  of  redressing  or  revenging  some  sup- 
posed grievance  or  injury,  or  of  producing  some  public  benefit,  he  is 
nevcrtlieless  punishable  according  to  tlie  nature  of  the  crime  committed, 
if  he  knew,  at  the  time  of  committing  such  crime,  that  he  was  acting 
contrary  to  law,  by  which  expression  we  understand  your  lordships  to 
mean  the  law  of  the  land. 

Your  lordships  are  pleased  to  inquire  of  ussecondl  ,  "  What  are  the 
propter  questions  to  be  submitted  to  the  jury  when  a  person  alleged  to 
be  alUicted  with  insane  delusion  respecting  one  or  more  particular  sub- 
jects or  persons,  is  charged  with  the  commission  of  a  crnne  (murder, 
for  example),  and  insanity  is  set  up  as  a  defence?  "  And  thirdly,  •"  In 
what  terms  ought  the  (juestion  to  be  left  to  the  juiy  as  to  the  prisoner's 
state  of  niintlat  the  time  when  the  act  was  conunitted?  "  And  as  these 
two  questions  appear  to  us  to  be  more  conveniently  answered  together 
we  have  to  submit  our  opini(jn  to  ])e,  that  the  jurors  ought  to  be  told  in 
all  cases  that  every  man  is  to  be  presumed  to  be  sane,  and  to  possess  a 
suflicient  degree  of  reason  to  be  responsil)le  for  his  crimes,  until  the 
contrary  be  proved  to  their  satisfaction  ;  and  that  to  establish  a  defence 
on  the  ground  of  insanity,  it  must  be  clear!}'  proved  that,  at  the  time  of 
the  conunitting  of  the  act,  the  party  accused  was  lal)oriiig  unde-  such  a 
defect  of  reason,  from  disease  of  the  mind,  as  not  to  !•'!•  .  J^c  nature 
and  quality  of   the  act  he  was  doing,  or  if  he  did 


;.\  /»v 


that  he 

did  not  know  he  was  doing  what  was  wrong.  The  iri:.>('  '.•'i'  putting 
the  latter  part  of  the  question  to  the  jury  on  these  occasions  has 
generally  been  whether  the  accused  at  the  time  of  doing  the  act  knew 
the  difference  between  right  and  wrong,  which  mode,  though  rarely,  if 
ever,  leading  to  any  mistake  with  tiie  jury,  is  not,  as  we  conceive,  so 
accurate  when  put  generall}'  and  in  the  abstract,  as  when  put  with  ref- 
erence to  the  party's  knowledge  of  right  and  wrong  in  respect  to  the 
very  act  with  which  he  is  charged.  If  the  question  were  to  be  put  as  to 
the  knowledge  of  the  accused  solely  and  exclusively  with  reference  to 


INSANi:    bKLLSIONS. 


l.H 


e  alleged 
d  the  act 
lusion,  of 
ir  of  pi'o- 

|ui:ies  are 
ons  only, 
,  notwith- 
e\v,  under 
ionie  siip- 
lefit,  he  is 
»minitted, 
as  acting 
(Iships  to 

at  are  the 

alleged  to 

■ular  sub- 

(  murder. 

fdly,  ''  In 

prisoner's 

as  these 

tosifcther 

)e  told  in 

)ossess  a 

until  the 

defence 

10  time  of 

•  such  a 

;   nature 

that  he 

v'  putting 

ions   has 

act  knew 

rarely,  if 

ceive,  so 

with  ref- 

!ct  to  the 

put  as  to 

srence  to 


C.  J.  Tiiidal's  Answer  to  tlit-  Lords. 


\.\w  law  of  the  land,  it  might  tend  to  confound  the  jury  liy  iiidiuing 
tliiin  to  believe  that  an  at'tual  ixnowledgi'  of  tlu-  hiw  of  tiic  land  was 
essential  in  order  to  lead  to  a  conviction,  whereas  tlie  law  is  adminis- 
tered upon  tlie  principle  tliat  every  one  must  l>e  taken  oonchisively  to 
know  it,  witliout  j)roof  tliat  he  docs  not  know  it.  If  tlie  accused  was 
conscious  that  the  act  was  one  whicii  lie  ouiiht  not  to  do,  and  if  tliat  act 
\V!is  at  the  same  time  contrary  to  tlie  hiw  of  the  laud,  he  is  punishable; 
and  the  usual  course,  therefore,  has  luen  to  Icjive  the  ([uestion  to  the 
jniy,  whellier  the  party  accusctl  liad  a  suMicient  degree  of  reason  to 
know  tliat  he  was  doing  au  act  that  was  wrong,  audtlii>,  course  we  think 
is  c  )rr('ct,  accorai)aiiied  with  such  obsf.'rvatioiis  and  exphiiialions  as  Ihc 
circumstances  of  each  particular  case  ma}'  reciuire. 

The  fourth  question  wliich your  lordships  have  proposed  to  us  is  this: 
•'  If  a  person  under  an  insane  delusion  as  to  existing  facts,  commits 
an  offence  in  consequence  thereof,  is  he  thereby  excused?  "  To  which 
(luestion  the  answer  must,  of  course,  depend  on  the  nature  of  the  delu- 
sion ;  but  making  the  Riime  ^^umpticm  as  we  did  liefore,  namely,  that 
lie  labors  under  such  partial  delusion  oiil}-,  and  is  not  in  other  resjiects 
insane,  we  think  he  must  be  considered  in  the  same  situation  as  to  re- 
sponsibility as  if  the  facts  with  respect  to  which  the  delusion  exists  were 
real.  For  example,  if,  under  the  influence  of  his  delusion,  he  supposes 
another  man  to  be  in  the  act  of  attempting  to  take  away  his  life,  and  he 
kills  that  man,  as  he  supposes,  in  self-defence,  he  would  be  exempt  from 
punishment.  If  his  delusion  was  that  the  deceased  had  inllicted  a 
serious  injury  to  his  cliaractir  and  fortune,  and  he  killed  liim  in  re- 
venge for  such  supposed  injury,  he  would  be  liable  to  punishment. 

The  question  lastly  proposed  by  your  lordships  is:  "  Can  a  medical 
man,  conversant  with  the  disease  of  insanity,  who  never  s.aw  the  pris- 
oner previously  to  the  trial,  but  who  was  present  during  the  whole  trial 
and  the  examination  of  all  the  witnesses,  be  asked  his  oi)inion  as  to  the 
state  of  the  prisoner's  mind  at  the  time  of  the  commission  of  the  alleged 
crime?  or  his  opinion  whether  the  prisoner  was  conscious  at  the  time  of 
doing  the  act,  that  he  was  acting  contrary  to  law,  or  whether  he  was 
laboring  under  any  and  what  delusion  at  the  time?  "  In  answer  tiiereto 
we  state  to  your  lordships  that  we  think  the  medical  man,  under  the 
circumstances  supposed,  cannot  in  strictness  be  asked  his  opinion  in  the 
terms  above  stated,  because  each  of  those  questions  involves  the  deter- 
min.ation  of  the  truth  of  the  facts  deposed  to,  which  it  is  for  the  jury  to 
decide,  and  the  questions  are  not  mere  questions  upon  a  matter  of 
science,  in  which  case  such  evidence  is  admissible.     But  when  the  facts 


i:)8 


THE    LKUAK    TKST    Ol     INSANITY. 


Coiiimoinvciiltli  /•.  l{i>i;crs. 


arc  admitted  or  not  (lisputi'd,  and  thu  qiiostion  becomes  substantially 
one  of  science  only,  it  nr.y  be  convenient  to  allow  the  (juestion  to  bo 
put  in  that  fjeneral  form,  though  the  same  cannot  be  insisted  on  as  a 


matter  of  right. 


INSANE  DELUSION— TEST  UF  INSANITY  —  BURDEN  OF  PROOF  — 

OPINIONS    OF  EXPERTS. 

CoMMOMWEALTH  >'.  RodEKS. 

[7  Mete.  500;   I  Bennett  &  Heard's  Lead.  Cas.  Crim.  Law,  95.] 

In  the  Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1S44. 

Hon.  Lkmuki,  Shaw,  Chief  Justice. 
"      CuAKi.Ks    A.  Dkwkv,      I   j^^^^^^ 
"     Samuel  HrnuAKi).  • 

1.  Insane  DeluBion  — Responsibility. —Where  the  delusion  of  a  person  is  such  that 

lb  has  ureal  and  llrni  belief  of  tin;  existence  of  a  faci  which  is  wholly  imaginary,  und 
under  that  insane  belief  he  does  an  ucl  which  would  be  justilhible  if  such  fact  existed, 
he  is  not  responsible  for  such  act. 

2.  Test  of  Insanity.    -Capacity  and  reason  sulllcient  to  enable  one  to  distinguish  between 

right  and  wron,:;,  Mi'l  uiidci'sland  th(!  nature,  character,  and  ('onse<|uences  of  his  act, 
with  mental  power  sulllcient  to  api)ly  that  knowledge  to  his  own  case,  furnish  the  legal 
test  of  sanity. 

3.  The  Opinions  of  Medical  Men  on  the  stale  of  mind  of  the  jinsoner  are  admissible, 

though  they  have  not  personally  examined  him. 

4.  Burden  of  Proof  —  A  jury   may  tlnd  a  person   insane  where  the  preponderance  of  the 

evidence  is  in  favor  of  his  insanity. 

The  defendant,  a  convict  in  tlie  State  i)rison  at  Charlcstown,  Mas- 
sachusetts, was  indicted  for  the  wilful  murder  of  Charles  J^incoln  thi' 
warden  of  the  prison,  on  the  l.")th  day  of  June,  A.  D.  1HJ;»,  by  stab 
l)ino  him  with  a  shoe-knife.  Tiie  fact  of  killin<r  was  clearly  proved,  and 
the  sole  defence  was  insanity.  The  hninicide  took  place  on  Thursda\', 
and  the  evidence  tended  to  show  that,  commencing  on  ]\Ionday  night 
previous,  and  continuing  with  increasing  iiggravations  up  to  some  period 
subsequent  to  the  warden's  death,  the  prisoner  was  laboring  under  some 
powerful  hallucination  ;  that  he  was  at  times  in  great  distress  and  appre- 
hension ;  tiiat  he  declared  he  heard  the  voices  i  his  fellow-prisoners 
confined  in  distant  parts  of  the  i)rison.  and  also  some  of  the  officers 
spetiking  to  him  and  threatening  him  with  danger,  telling  him  that  poi- 
sonous substances  were  mingled  in  his  food  ;  that  a  fatal  or  dangerous 


istHiUiiilly 
tioii  to  1)0 
d  on  as  a 


lOOF 


5.] 

m,  1S44. 


s  such  that 
iginary,  uml 
ICC  existed, 

8h  between 

s  of  hi.s  act, 

h  tlie  legal 

admissible, 

[ince  of  the 


vn,  Mas- 

c'oln  tin- 

by  stall 

rod,  iiiiil 

lursdny, 

ny  niglil 

e  period 

lor  some 

d  apprc- 

frisoner^ 

ofBcers 

hat  poi- 

nsjerous 


rOMMONWKAI.Tll    ''.   i:()(i  KKS . 


Kiicl«.  t'f  till'  ( ';i>('. 


l,-)!* 


^ame  was  playini;  upon  him,  which  he  could  not  long  survive;  that  the 
warden  was  going  to  take  him  up  to  the  old  prison,  shut  him  up,  and. 
keep  him  there  till  he  was  carried  out  feet  first ;  that  lie  cxpresse.i  lii.s 
fears  and  apprehensions  at  vaiiinia  times  to  different  persons,  during 
the  three  days  prior  to  tiie  homicide  and  particularly  i  nd  frequently 
stated  that  the  warden  was  going  to  shut  him  up,  and  that  if'  he  diil,  he 
should  not  live  three  days ;  he  should  be  carried  out  feet  first ;  and 
ntlier  statements  of  a  like  kind.  His  predominant  fear  seemed  to  be 
that  he  was  to  be  shut  up  by  the  warden,  and  the  c msequence  would 
1)0  that  he  should  suffer  instant  death.  On  the  afternoon  of  the  homi- 
cide the  prisoner  saw  the  warden  entering  the  sboj)  where  he  was  at 
work,  and  under  the  inllnence  of  his  delusion,  which  then  appeared  to 
lie  at  its  crisis,  and  in  full  possession  of  iiis  mind,  he  probably  imagined 
the  time  had  come  for  his  imprisonment  in  the  old  prison,  and  his  con- 
sequent death  ;  impelled  by  a  fear  of  his  impending  danger,  he  ruslied 
upon  the  object  of  his  fear,  and  averted  his  own  death,  as  he  supposed, 
liy  taking  the  life  of  the  warden.  Several  medical  gentlemen  and  sui)ei'- 
intendents  of  insane  asylums,  some  of  whom  had  and  others  had  not, 
made  a  personal  examination  of  the  prisoner,  testified  that  in  their 
opinion  he  was  uniiuostionably  insane. 

The  prisoner's  counsel  {Georr/e  Bcmia,  Esq.  and  George  Ttjler  BigeloH', 
Es-j. ,  afterwards  chief  justice  of  the  Supreme  Judicial  Court  of  INIassachu- 
setts)  claimed  upon  this  and  tiie  other  evidence  of  the  case,  that  if  the 
jury  wore  satisfied  that  the  prisoner  when  hi'  committed  the  homicide, 
was  laboring  under  a  delusion  which  overpowered  his  will,  and  deprived 
him  of  self-control,  and  the  act  was  connected  with  that  delusion,  he 
was  entitled  to  an  actpiittal. 

How  entirely  that  position  was  sustained  b}'  the  facts  and  the  law,  the 
verdict  of  accpiittal  and  the  instruction  of  the  court  to  the  jury  furnish 
sufiiciont  answer.     'J'lie  cliaigo  of  the  court  was  thus  delivered  by 

SiiAW,  C'.  J.  —  111  oiiUt  to  constitute  a  crime,  a  person  must  have 
iiiti'llitieiice  and  capacity  enoui;ii  to  have  a  criminal  intent  and  [»ur|iose  ; 
ami  if  his  reason  and  mental  powci-s  are  either  so  deficient  that  he  has  no 
will,  no  conscience,  or  controlling  mental  power,  or  if  through  the  over- 
wiiclraing  violence  of  mental  disease,  his  intellectual  iiower  is  for  tl:e 
lime  obliterated,  he  is  not  a  responsible  moral  agent,  and  is  not  imiiish- 
nble  for  crimiind  acts. 

Hilt  tlnTO  are  ONtri'ines  easily  distinguished,  and  not  to  be  mistaken. 
The  ditliculty  lies  belwcen  these  extremes,  in  the  cases  of  partial  insan- 
ity, wliore  tiie  mind  maybe  clouded  and  weakened,  but  not  incapable  of 
remembering,  reasoning,  and  judging,  or  so  pervaded  by  insane  delu- 


ICO 


THK   r.KOAL   ri;sr  of  ix«amty. 


C'oiniiiDinvfallli  r.  Koilurs. 


sion,  as  to  act  uiulor  lalsc  impressions  an<l  iiilluonci's.  In  tlusc  cases, 
tlie  rule  of  l-iw.  ••..»  we  uluk'^^tall(l  it,  is  tliis :  A  man  is  not  to  l)e  excused 
from  r'Jspousil)ilit y,  if  he  has  capacity  and  reason  sulllcicnt  to  enaltle 
him  to  distinj-uisli  Ijetwceu  right  and  wrong,  as  to  the  piirticnUnr  act  he 
is  t'len  doing ;  u  knowk'dge  ami  consciousness  that  tiu' act  he  is  doing 
is  wrong  and  criminal,  and  will  snlijcct  him  to  punishment.  In  order 
to  he  responsil»le,  he  nuist  have  suliicient,  powiT  of  memory  to  recollect 
the  relation  in  which  he  stands  to  others,  and  in  which  others  stand  to 
him  ;  that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice 
and  right,  injurious  to  others,  and  a  violation  of  the  dictates  of  (hity. 

On  tlie  contrary,  although  he  ma}'  be  hU)oring  under  partial  insunif}*, 
if  he  still  understands  the  naline  and  character  of  his  act,  and  its  con- 
se(iuences ;  if  he  has  a  knowledge  that  it  is  w -ong  and  criminal,  and  a 
mental  power  sulHcient  to  apply  that  knowh'dge  to  his  own  case,  and  to 
know  thai,  if  he  does  the  act,  he  will  do  wrong  and  receive  punishment ; 
such  partial  insanity  is  not  sutHcient  to  exemi)l  him  from  responsibilitj' 
for  criminal  acts. 

If  then  it  is  proved  to  the  satisfaction  of  the  jury,  that  the  mind  of 
accused  was  in  a  diseased  and  unsound  state,  tlie  (luestion  will  l)e 
whether  the  disease  existed  to  so  high  a  degree,  that  for  the  time  being 
it  overwhehned  the  reason,  conscience,  and  Judgmt'nt,  and  whether  the 
prisoner,  in  committing  the  homicide,  acted  from  an  irresistible  and  un- 
controllal)le  impulse.  If  so,  therj  the  act  was  not  the  act  of  a  voluntary 
agent,  but  the  involuntary  act  of  the  body,  without  the  concurrence  of 
a  mind  directing  it. 

The  character  of  the  mental  disease,  relied  upon  to  excuse  the 
accused  in  this  case,  is  partial  insanity,  consisting  of  melancholy,  ac- 
companied by  delusion.  The  conduct  maybe  in  many  respects  regular, 
the  mind  acute  and  the  conduct  a[)parently  governed  by  rules  of  pro- 
priety, and  at  the  same  time  there  may  be  insane  delusion,  by  which 
the  mind  is  perverted.  The  most  common  of  these  cases  is  that  of 
monomania,  when  the  mind  broods  over  one  idea  and  cannot  be  rea- 
soned out  of  it.  This  may  operate  as  an  excuse  for  a  criminal  act  ia 
one  of  two  modes:  1.  Either  the  delusion  is  such  that  the  person  under 
its  influence  has  a  real  and  firm  belief  of  some  fact,  not  true  in  itself, 
but  which,  if  it  were  true,  would  excuse  his  act ;  as  where  the  belief  is 
that  tlie  party  killed  had  an  immediate  design  upon  his  life,  and  under 
that  belief,  the  insane  man  kills  in  supposed  self-defence.  A  common 
instance  is  when  he  fully  believes  that  the  act  he  is  doing  is  done  by  the 
immediate  command  of  God,  and  he  acts  under  the  delusive,  but  sincere 
belief  that  what  he  is  doing  is  by  the  command  of  a  superior  power, 


insam:  dkmskjns. 


im 


'8C  cases, 
J  excused 
tt»  ciialile 
ar  act  ho 

is  doing 

111  (jnlcr 
-  recollect 

stand  to 
of  justice 
f  duty. 

insanit}', 
d  its  cen- 
tal, and  a 
ie,  and  to 
lisluncnt ; 
)onsibility 

3  mind  of 
n  will  he 
inic!  Iieing 
let  her  ihc 
e  and  uu- 
voluntary 
irrcnce  of 

cuse  the 
loly,  ac- 
regular, 
s  of  pro- 
by  which 
s  that  of 
jt  be  ren- 
al act  in 
ion  under 
in  itself, 
belief  is 
nd  under 
common 
ne  by  the 
it  sincere 
)r  power. 


HiH'dcii  of  I'roof, 


which  supersedes  all  human  laws  and  the  laws  of  nature.  2.  Or  this 
state  of  delusion  indicates  to  an  experienced  person,  that  tiie  mind 
is  in  a  diseased  staU' ;  that  tlie  known  tendency  of  tiiat  diseased  state 
of  the  mind  is  to  break  out  into  sudden  paroxysms  of  violenci',  venting 
itself  in  homicide  or  other  violent  acts  toward  friend  or  foe  indiscrimi- 
nately ;  so  that  althougli  there  w.'rc  no  previous  indications  of  violence, 
yet  the  subsequent  act,  connectiiig  itself  with  the  previ(jus  symptoms 
and  in<lications,  will  enable  an  inexperienced  person  to  say  that  the  out- 
break was  of  such  a  character,  that  for  the  time  being  it  must  have 
overborn  memory  and  reason  ;  that  tlie  act  was  the  result  of  the  disease, 
and  not  of  a  mind  capable  of  choosing ;  in  short,  that  it  was  the  result 
of  uncontrollable  imi»ulse,  and  not  of  a  person  acted  upon  l)y  motives, 
and  governed  by  the  will. 

The  questions,  then,  in  the  present  case  will  be  these:  1.  Was  there 
such  a  delusion  ami  hallucination?  2.  Did  the  accused  act  under  a 
false,  but  sincere  belief  that  the  M'arden  had  a  design  to  shut  him  u[),  and 
under  that  pretext,  destroy  his  life  ;  and  did  he  take  this  means  to  pre- 
vent it?  3.  Are  the  facts  of  such  a  character,  taken  in  connection  with 
the  opinions  of  the  professional  witnesses,  as  to  induce  the  jury  to  be- 
lieve that  the  accused  had  been  hiboring  for  several  days  under  mono- 
mania, attended  with  delusion ;  and  did  this  indicate  such  a  disease<l 
state  of  the  mind,  that  tiie  act  of  killing  the  warden  was  to  be  consid- 
ered as  an  outbreak  or  paroxysm  of  disease,  which  for  tlie  time  being, 
overwhelmed  and  suppressed  reason  and  judgment,  so  that  the  accuseil 
was  not  an  accountable  agent? 

If  such  was  the  case,  the  accused  is  entitled  to  an  acquittal ;  other- 
wise as  the  evidence  proves  beyond  all  doubt  the  fact  of  the  killing, 
without  provoi-ation,  by  the  use  of  a  deadly  weapon,  and  attended  with 
circumstances  of  violence,  cruelty  and  barbarity,  he  must  undoubtedly 
be  convicted  of  wilful  murder. 

The  ordinary  presumption  is,  that  a  person  is  of  sound  mind,  until 
the  contrary  appears,  and  in  order  to  shield  one  from  ciiminal  responsi- 
bility, the  presumption  must  be  rebutted  by  proof  of  the  contrary,  sat- 
isfactory to  the  jury  ;  such  proof  may  arise  out  of  the  evidence  offered 
by  the  prosecutor  to  establish  the  case  against  the  accused,  or  from 
distinct  evidence  offered  on  his  part;  in  either  case  it  must  be  sufficient 
to  establish  the  fact  of  insanity,  otherwise  the  presum|)tion  will  stand. 

The  opinions  of  professional  men  on  a  question  of  this  description 

arc  competent  evidence,  and  in  many  cases  are  entitled  to  great  consid- 

sideration  and  respect.     The  rule  of  law.  on  which  this  proof  of  the 

opinions  of  witnesses,  who  know  nothing  of  the  actual  facts  of  the  case. 

11 


I 


\r,j 


Tin:    l,K(J.VI<   TKST    OF    INSANITV 


CoilllllDIIWriillli    r.  Ko^cl'H. 


is  fixiiuU'd,  IS  not  poculiar  to  inodiciil  tCHtiinoiiy,  but  is  a  ^^uiiurul  nilo, 
u|)|>lical)iu  tu  all  cases,  wltcii  tin;  (iiu'stiuii  is  oiiu  depi'inliiig  un  slxill  and 
science  in  any  particular  department.     In  (general,  it  is  the  opinion  of 
the  jury  which  is  to  govern,  and  that  is  to  l)i!  formed  upon  the  proof  of 
facts  laid  J)efore  them.     Hut  some  (piestions  lie  beyond  the  scope  of  the 
ooservatiou  and  experience  of  men  in  general,  but  arc  quite  within  the 
observation  and  experience  of  those  whoso  peculiar  pursuits  and  profcs- 
sioii  have  brought  that  class  of  facts  frequently  and  habitually  under 
their  consideration.     Shipmasters  and  seamen  have  peculiar  means  of 
accpiiriug  knowledge  and  experience  in  whatever  relates  to  seamanship 
and  nautical  skill.     When,   tlu'refore,  a  question  arises  in  a  court  of 
justice  upon  that  subject,  and  certain  facts  are  proved  by  other  wit- 
nesses, a  shipmaster  may  ])e  asked  his  opinion  as  to  the  character  of 
such  facts.     The  same  is  true  with  regard  to  any  (piestion  of  science, 
because  persons  conversant  with  such  science  have  peculiar  means,  from 
a  larger  and  more  exact  observation,  and  long  exi)erience  in  such  de- 
partment of  science,  of  drawing  correct  inferences  from  certain  facts, 
either  observed  by  themselves  or  testified  to  by  other  witnesses.     A 
familiar  instance  of  the  application  of  this  principle  occurs  very  often 
in  cases  of  homicide,  when  upon  certa'n  facts  being  testified  to  by  other 
witnesses,  medical  persons  are  asked  whether  in  their  opinion  a  particu- 
lar wound  described  would  be   an  adetpuite  cause,  or  whether  such 
wound  was,  in  their  opinion,  the  actual  cau  le  of  the  death,  in  the  par- 
ticular case.     Such  question  is  commonly  asked  without  objection  ;  and 
the  judicial  proof  of  the  fact  of  killing  often  depends  wholly  or  mainly 
upon  such  testing  of  o[)inion.     It  is  upon  this  ground,  that  the  opinions 
of  witnesses,  who  have  long  been  conversant  with  insanity  in  its  various 
forms,  and  who  have  had  the  care  and  superintendence  of  insane  per- 
sons, are  received  as  conqicteut  evidence,  even  though  they  have  not 
had  opportunity  to  examine  the  particular   patient,  and   observe  the 
symptoms  and  indications  of  disease,  at  the  time  of  its  supposed  exist- 
ence.    It  is  designed  to  aid  the  judgment  of  the  jury,  in  regard  to  the 
iurtuence  and  effect  of  certain  facts,  which  lie  out  of  the  observation 
and  experience  of  persons  in  general.     And  such  opinions,  when  they 
come  fi'om  persons  of  great  expeiience,  and  in  whose  correctness  and 
and  sobriet}'  of  judgment  just  confidence  can  be  had,  are  of  great  weight 
and  deserve  the  respectful  consideration  of  a  jury.     But  the  oi)inion  of 
a  medical  man  of  small  experience,  or  of  one  who  has  crude  and  vis- 
ionary notions,  or  who  has  some  favorite  theory  to  support,  is  entitled 
to  very  little  consideration.     The  value  of  such  testimony  will  depend 
mainly  upon  the  experience,  fidelity  and  impartiality  of  the  witness 
who  gives  it. 


OI'IMONS   OK    EXI'KKTS. 


i6;i 


UiiittMl  StatcM  V.  (iiiltcaii. 


inil  lull', 
Hkill  anil 
[)iiii(>n  of 
proof  of 
pe  of  i\w 
•ithiu  the 
d  profcH- 
lly  under 
means  of 
[vnianship 
court  of 
other  Mit- 
iracter  of 
f  science, 
ana,  from 
such  de- 
tain facts, 
esses.     A 
very  often 
p  by  other 
a  \)articu- 
UT  such 
the  par- 
tion ;  and 
or  mainly 
opinions 
ts  various 
isane  per- 
have  not 
iserve  the 
sed  cxist- 
rd  to  the 
jscrvation 
hen  they 
tness  and 
at  weight 
)pinion  of 
i  and  vis- 
s  entitled 
11  depend 
}  witness 


Ono  caution,  in  ro}»ard  to  tliis  point,  it  is  proper  toijivc.  Kven  where 
the  mt'(llcul  or  other  professit)iial  witnesses  have  attended  tlie  wljole 
trial,  and  lieard  tlie  testimony  of  the  oilier  witnesses,  as  to  the  facts  and 
circumstances  of  tlic  ease,  they  am  iu»i,  to  judge  of  the  credit  of  the 
witnesses  or  of  the  trutli  of  the  facts  testified  l)y  others.  It  is  for  the 
I  jury  to  decide   wliother  such  fads  arc  satisfactorily  proved,  and  tl»c 

proper  (pieslion  to  be  put  to  tlie  professidiiul  witness  is  this:  if  the 
symptoms  and  indications  testilied  to  by  other  witnesses  are  proved, 
and  if  the  jury  are  satisfied  of  the  truth  of  them,  whether  in  their  opin- 
ion, the  party  was  insane;  and  what  was  the  natme  and  character  of 
that  insanity ;  what  state  of  mind  did  they  indicate ;  and  what  they 
would  expect  would  be  the  conduct  of  such  a  person  in  any  supposed 
circumstances.  ' 

The  jury,  after  being  in  consultation  several  hours,  came  into  court 
and  asked  instructions  upon  these  two  questions :  "Must  the  jury  be 
satisfied,  beyond  a  doubt,  of  the  insanity  of  the  prisoner,  to  entitle  him 
to  an  acquittal?  And  what  deirree  of  insanity  will  amount  to  a  justifi- 
cation of  the  offence." 

In  answer  to  the  first  of  these  questions,  the  chief  justice  repeated  his 
former  remarks  on  the  same  point  and  added,  that  if  the  preponderance 
of  the  evidence  was  in  favor  of  the  insanity  of  the  prisoner,  the  jury 
would  be  authorized  to  find  him  insane.  In  answer  to  the  second  ques- 
tion the  chief  justice  added  nothing  to  the  instructions  which  he  had 
previously  given. 

The  jury  returned  a  verdict  of  "  not  guilty,  liy  reason  of  insanity." 


INSANE    DELUSION  —  DISTINGUISHED  FROM  ERRONEOUS  OPINION- 
burden  of  proof  — test  of  insanity  — evidence. 

United  States  v.  Guiteau. 

[lOFed.  Rep.  161.] 
In  the  United  States  District  Court  for  the  District  of  Columbia,  1881. 

Before  Mr.  Justice  Cox. 

1  Burden  of  Proof  of  Insanity  on  Prisoner.  —  Where  the  defence  o{  inianity  is  set  up 
as  an  excuse  for  crime,  the  burden  of  proving  it  is  on  the  person  aUeging  it.  The  pre- 
sumption  is  that  he  is  sane. 

1  See  1  M.  &  It.  75. 


164 


THE   LEGAL   TEST   OF   INSANITY. 


United  States  v.  Guitcuu. 


2.  Insanity  — Evidence. —  On  the  trial  of  the  sanity  of  a  person,  evidence  of  his  previoas 

and  subsequent  condition  is  admissible. 

3.  Insanity  of  Relations.  —  And  in  connection  with  evidence  of  his  own  insanity,  testi- 

mony showing  insanity  of  liis  parents  or  immediate  relatives,  is  relevant. 

4.  The  £nornxity  of  the  Crime,  or  the  absence  of  motive,  is  no  evidence  of  insanity. 

5.  The  Test  of  Responsibility  where  tlie  defence  of  insanity  is  interposed,  is  whether  the 

accused  had  siitlii^ient  use  of  liis  reason  to  understand  the  nature  of  the  act,  and  that  it 
was  wrong  for  him  to  commit  it. 

(>.  Declarations  of  Prisoner—  Evidence.  — The  prisoner's  unsworn  declarations  are  not 
admissible  iit  his  favor,  though  admissible  us  against  him. 

7.  Insane  Delusion— Defence.—  An  insane  delusion  is  an  unreasoning  and  incorrigible 

belief  in  the  existence  of  facts  which  are  either  impossible  absolutely,  or  impossible 
under  the  circumstances  of  the  individual. 

8.  Opinions  or  Beliefs  founded  on  reasoning  and  reflection  arc  not  insane  delusions  nor 

within  the  law  regarding  them. 


I 


The  prisoner,  Charles  J.  Guiteau,  was  indicted  for  the  niui'der  of 
James  Abram  Garfield,  President  of  the  United  States,  on  July  2,  1881. 
The  assassination  "vvas  admitted,  and  the  plea  of  insanity  set  up.  After 
a  long  and  tedious  trial.  Judge  Cox  on  this  day  (January  25,  188"^), 
charged  the  jury  as  follows :  — 

Gentlemen  of  the  Petit  Juri/:  — The  Constitution  of  tlie  United  States 
provides  that  "  in  all  criminal  prosecutions  the  accu.sed  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed  ;  *  *  *  to  be 
informed  of  the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with  the  witnesses  against  him  :  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor;  and  to  liave  the  assistance  of  counsel  for  his 
defence."  Tiiese  provisions  are  deemed  the  indispensable  safeguards 
of  life  and  liberty.  They  are  intended  for  the  i)rotecti<»n  of  the  inno- 
cent from  injustice  and  oppression.  It  is  only  by  their  faithful  observ- 
ance that  guilt  or  innocence  can  be  fairly  ascertained.  Every  accused 
pei'son  is  presumed  innocent  until  the  accusation  be  proved,  and  until 
such  proof  no  court  dare  to  prejudge  his  cause  or  withhold  from  him  the 
protection  of  this  fundamental  law.  With  what  difficulty  and  trial  of 
patience  this  law  has  been  administered  in  the  pi'esent  case,  you  bnve 
been  daily  witnesses.  After  all,  however,  it  is  our  consolation  that  not 
one  of  these  sacred  guarantees  has  been  violated  in  the  person  of  the 
accused.  If  he  be  guilty,  no  man  deserves  their  protection  less  than  lie 
does.  If  he  be  innocent,  no  man  needs  their  protection  more,  and  no 
man's  case  more  clearly  proves  their  beneficence  and  justice. 

At  length  the  long  chapter  of  proof  is  ended ;  the  task  of  the  advo- 
cate  is  done ;  and  the  duty  now  rests  with  you  of  determining,  with 


UNITED    STATES    V.    GUITEAU. 


165 


Public  Opinion  Irrelevant. 


such  aid  as  I  can  affofd  j'ou,  the  issue  between  puhhc  justice  and  llie 
prisoner  at  tlie  bar.  No  one  can  feel  more  Iveenly  than  I  do  the  gravo 
responsibility  of  my  duty  ;  and  I  feel  that  I  can  onl}-^  discharge  it  by  a 
close  adherence  to  the  law  as  it  has  been  laid  down  by  its  higliest  autiior- 
ized  expounders. 

Before  proceeding,  I  wish  to  interject  a  remark  here  upon  an  ei)isode 
in  tlie  trial  pending  the  last  argument.  The  prisoner  has  taken  repeated 
occasions  to  proclaim  that  pubUc  opinion,  as  evidenced  by  the  press  and 
by  his  correspondence,  is  in  his  favor.  As  you  well  know,  these  dechi- 
rations  could  not  have  been  prevented  except  1)3' resorting  to  the  process 
of  gagging  him.  Any  suggestion  that  you  could  be  influenced  by  this 
lawless  babble  of  the  prisoner,  would  have  seemed  to  me  simpl}'  absurd, 
and  I  should  have  felt  that  I  had  almost  insulted  j^iur  intelligence  if  I 
*  had  warned  you  not  to  regard  it.     The  counsel  for  the  prosecution  have 

been  rebuked  for  allowing  tliese  declarations  to  go  to  j'ou  without 
contradii>tion,  and  in  the  course  of  tlie  final  argument  the}' felt  it  neces- 
sary tg  interi)ose  a  contradiction  to  these  declarations  of  the  prisoner, 
and  the  latter's  counsel  excepted  to  the  form  in  whicli  the  contradiction 
was  made.  For  the  sole  purpose  of  purging  this  record  of  any  appar- 
ently objectionable  matter,  I  would  simi)ly  say.  here,  that  nothing  that 
has  been  said  in  reference  to  public  sentiment  or  newspaper  opinion,  on 
either  side,  is  to  be  regarded  by  you,  although  I  reall}'  feel  that  such  an 
adjnonition  from  me  is  totally  unnecessary. 

This  indictment  charges  the  defendant  with  having  murdered  James 
A.  Garfield.  It  l)f comes  my  duty,  in  the  first  place,  to  explain  to  you 
the  nature  of  the  crime  charged.  With  us,  murder  is  committed  wiieii' 
a  person  of  sound  memory  and  discretion  unlawfully  kills  a  reasonal»le 
creature  in  being,  and  in  the  peace  of  the  United  States  witli  malice 
aforethought.  It  must  of  course  be  proved,  first,  that  the  death  was 
caused  by  the  act  of  the  accused.  It  must  be  further  shown  that  it 
was  c.uised  with  malice  aforethought ;  but  this  does  not  mean  that  the 
government  must  prove  any  special  ill  will,  hatred,  or  grudge,  on  the 
part  of  the  prisoner,  towards  the  deceased.  Whenever  a  homicide  is 
shown  to  have  lieen  committed  without  lawful  authority  and  witli  delib- 
erate intent,  it  is  sufficiently  proved  to  have  been  done  wilii  malice  afore- 
thought. And  this  evidence  is  not  answered  and  malice  is  not  disproved 
by  showing  that  the  accused  had  no  personal  ill  will  against  the  deceased, 
but  killed  him  from  some  other  motive,  as  for  purpose  of  roblieiy,  or 
by  mistaliing  him  for  another,  or,  as  alleged  in  this  case,  to  produce  a 
public  benefit.  If  it  could  be  shown  that  the  killing  occurred  in  the 
heat  of  passion  and  on  sudden  cpiarrel,  and  under  provocation  from  the 


166 


THE   LEGAL   TEST   O!^    INSANITY. 


United  States  v.  Guiteau. 


deceased,  then  it  would  appear  that  there  was  no  premeditated  intent, 
and  consequently  no  malice  aforethought ;  and  this  would  reduce  the 
crime  to  manslaughter.  But  it  is  hardly  necessary  to  say  that  there  is 
nothing  of  that  kind  in  the  present  case.  You  will  prol)ably  see  that 
eitlier  the  defendant  is  guilty  of  murder  or  he  is  innocent. 

But,  in  order  to  constitute  the  crime  of  murder,  the  assassin  must 
have  a  responsibly  sane  mind.  The  technical  term,  "  sound  memory 
and  discretion, "  in  the  old  common-law  definition  of  murder,  means 
this.  An  irresponsibly  insane  man  can  no  more  commit  murder  than 
a  sane  man  can  do  so  without  killing.  His  condition  of  mind  cannot  be 
separated  from  the  act.  If  he  is  laboring  under  disease  of  his  mental 
faculties —  if  that  is  a  proper  expression  —  to  such  an  extent  that  he 
does  not  know  what  he  is  doing,  or  does  not  know  that  it  is  wrong,  then 
he  is  wanting  in  that  sound  memory  and  discretion  which  make  a  part  of 
the  definition  of  murder.  In  the  next  place,  I  instruct  you  that  every 
defendant  is  presumed  innocent  until  the  accusation  against  him  is 
esta])lished  by  proof.  In  the  next  place,  notwithstanding  tliis  presump- 
tion of  innocence,  it  is  equally  true  that  a  defendant  is  presumed  to  be 
sane  and  to  have  been  so  at  the  time  when  the  crime  charged  against  him 
was  committed  ;  that  is  to  say,  the  government  is  not  bound,  as  a  part 
of  itc  proofs,  to  show,  aflirmatively,  that  the  defendant  was  sane.  As 
insanity  is  the  exception,  and  most  men  are  sane,  the  law  presumes  the 
latter  condition  of  everybody  until  some  reason  is  shown  to  believe  the 
contrary.  The  burden  is  therefore  on  the  defendant,  who  sets  up  insan- 
ity as  an  excuse  for  crime,  to  bring  forward  his  proofs,  in  the  first 
instance,  to  show  that  that  presumption  is  a  mistake  as  far  as  it  relates 
to  liim. 

The  crime,  then,  involves  three  elements,  viz. :  The  killing,  malice, 
and  a  responsible  mind  in  the  murderer. 

But  after  all  the  evidence  is  in,  if  the  jury,  while  bearing  in  mind  both 
these  presumptions  that  I  have  mentioned,  —  i.e.,  that  tlie  defendant 
is  innocent  till  he  is  proved  guilty,  and  that  he  is  and  was  sane,  unless 
evidence  to  the  contrary  appears,  —  and  considering  the  whole  evidence 
in  the  case,  still  entertain  what  is  called  a  reasonable  doubt,  on  any 
ground  (either  as  to  the  killing,  or  the  responsible  condition  of  mind), 
whether  he  is  guilty  of  the  crime  of  murder,  as  it  has  been  explained 
and  defined,  then  the  rule  is  that  the  defendant  is  entitled  to  the  benefit 
of  that  doubt  and  to  an  acquittal.  But  here  it  becomes  important  to 
explain  to  you,  in  the  best  way  that  I  can,' what  is  a  reasonable  doubt. 
I  can  hardly  venture  to  give  you  an  exact  definition  of  the  terms,  for  I 
do  not  know  of  any  successful  attempt  to  do  so.     As   to   (juestions 


WHAT   IS    A    "  REASONABLE    DOUBT. 


1()7 


Tlie  riirase  Defined. 


relating  to  human  affairs,  a  knowledge  of  which  is  derived  from  testi- 
mony, it  is  imi)ossible  to  have  the  sanie  kind  of  certainty  which  is 
created  by  scientific  demonstration.  The  only  certainty  yon  can  liave 
is  a  moral  certainty,  which  depends  upon  the  confidence  you  liavc  in 
the  integrity  of  witnesses,  and  tiieir  capacity  to  know  the  truth  If,  for 
example,  facts  not  improbable  are  attested  by  numerous  witnesses  who 
are  credible,  ccmsistent,  and  uncontradicted,  and  who  had  every  oppor- 
tunity of  knowing  the  truth,  a  reasonable  or  moral  certainty  wotdd  be 
inspired  by  their  testimony.  In  such  case,  a  doubt  would  bo  unreason- 
able, or  iniaginarj',  or  speculative,  which  the  books  say  it  ought  not  to 
be.  And  it  is  not  a  doubt  Avhetlier  tlie  party  may  not  poi,iibli/  be  inno- 
cent in  the  face  of  strong  proof  of  his  guilt,  but  a  sincere  doubt  whether 
lie  has  been  pi'oved  guilty,  that  is  called  reasonable.  And  even  where  the 
testimony  is  contradictorj'^,  so  mucli  more  credit  maybe  due  to  one  side 
than  the  other,  tlu\t  the  same  resnlt  will  be  produced.  On  the  other 
hand,  the  opi)osing  proofs  uuiy  be  so  nearly  balanced  that  the  jury  may 
justly  doubt  on  which  side  lies  the  truth,  and,  in  such  case,  the  accused 
party  is  entitled  to  the  benefit  of  the  doubt.  As  certainty  advances, 
doubt  recedes.  If  one  is  leasonably  certain,  he  cannot,  at  the  same 
time,  be  reasonably  doubtful,  i.e..,  have  a  reasonable  doubt,  of  a  fact. 
All  that  a  jury  can  be  expected  to  do  is  to  be  reasonably  or  morally  cer- 
tain of  the  fact  which  they  declare  by  their  verdict.  As  Chief  Justice 
Shaw  says,  in  Com.  v.  Webster:  '  "  For  it  is  not  sufficient  to  establish 
a  probability,  thoi:gh  a  strong  one,  arising  from  the  doctrine  of  chances, 
lluit  the  fact  ciiarged  is  more  likely  to  be  true  than  the  contrary ;  but 
the  evidence  must  estalilish  the  truth  of  the  fact  to  a  reasonable  and 
moral  certainty,  a  certainty  that  convinces  and  directs  the  understand- 
ing, and  satisfies  the  reason  and  judgment  of  those  who  are  bound  to 
act  conscientiously  upon  it." 

With  regard  to  the  evidence  in  tiiis  case,  very  little  comment  is  re- 
quired from  tlie  court,  except  upon  one  question,  the  others  being 
hardly  matters  of  dispute.  That  the  defendant  fired  at  and  shot  the 
deceased  President  is  abundantly  proved,  if  you  believe  the  testimony. 
That  the  woutid  caused  the  death  has  been  testified  to  by  the  surgeon-* 
most  competent  to  speak  on  that  subject,  and  they  are  uncontradicted. 
That  the  homicide  was  committed  witli  malice  aforethought,  if  the  de- 
fendant was  capable  of  criminal  intent  and  malice,  can  hardly  be  gain- 
said if  you  will  bear  in  mind  what  I  have  already  said.  It  is  not 
necessary  to  prove  that  any  special  and  express  hatred  or  malice  was 

1  5Cush.320. 


I 


168 


THE   LEGAL   TEST   OF    IN.SAXITV. 


United  States  r.  Guiteau. 


enttTtaineil  1)}'  tlie  accused  towards  the  deceased.  It  is  sufflcicnt  to 
prove  that  the  act  was  done  with  delilierate  intent,  as  distinct 
from  an  act  done  under  tlie  sudden  impulse  of  passion,  and  in 
the  lieat  of  blood,  and  without  previous  malice.  J^videuce  has  been 
exhibited  to  you  tending  to  show  that  the  defendant,  in  liis  own  hand- 
writing, admitted  that  he  had  conceived  the  idea  of  removing  the  Presi- 
dent, as  he  calls  it,  some  six  weeks  before  the  shooting,  and  had  delib- 
erated upon  it,  and  come  to  a  determination  to  do  it,  and  that  about 
two  weeks  before  he  accomplished  it,  he  stationed  himself  for  the  pur- 
pose, but  some  relentintrs  delayed  tlie  attempt.  His  preparation  for  it 
b}'^  the  purchase  of  the  pistol  has  been  detailed  to  you.  All  these  facts, 
if  believed  by  you,  come  up  to  tlie  full  measure  of  proof  required  to 
establish  what  the  law  denominates  viulice  oforethoiK/Jit.  And  thus,  I 
apprehend,  that  you  will  have  little  dilficulty  in  reaching  a  conclusion 
as  to  all  the  elements  that  make  ui)  the  crime  charged  in  the  indictment, 
unless  it  be  the  one  of  "•  sound  memory  and  discretion,"  as  it  is  called, 
which  is  only  a  technical  expression  for  a  sound  mind.  We  now 
approach  the  difficult  question  in  this  case. 

I  have  said  that  a  man  who  is  insane,  in  a  sense  that  makes  him  irre- 
sponsible, f  annot  commit  a  crime.  The  defence  of  insanity  has  been 
so  abused  as  to  be  brought  into  gj-eat  discredit.  It  has  been  the  last 
resort  in  cases  of  unquestionable  guilt,  and  has  lieen  the  excuse  to 
juries  for  acquittal,  wh(Mi  tiicir  own  and  the  public  sympathy  have  been 
with  tiie  accused,  and  es  :ecially  when  the  provocation  to  homicide  has 
excused  it  according  to  i)ublic  sentiment,  but  r.ot  according  to  law. 
For  those  reasons  it  is  viewed  with  suspicion  and  disfavor  whenever 
public  sentiment  is  hostile  to  the  accused.  Nevertheless,  if  insanity  be 
established  to  the  degree  that  has  been  alread}',  in  part,  and  will  here" 
after  further  bo  explained,  it  is  a  perfect  defence  to  an  indictment  for 
murder,  and  must  be  allowed  full  weight. 

Now,  it  is  first  to  be  observed  that  we  are  not  troubled  in  this  case 
with  any  question  about  what  may  be  called  total  insanit}',  such  as 
raving  mania,  or  absolute  imbecility,  in  which  all  exercise  of  reason  is 
wanting,  and  there  is  no  recognition  of  persons  or  things,  or  their 
relations.  But  there  is  a  debatalile  border-line  between  tlie  sane  and 
tlie  insane,  and  there  is  often  great  diificulty  in  determining  on  which 
side  of  it  a  party  is  to  be  placed.  There  are  casea  in  which  a  man's 
mental  faculties  generally  seem  to  be  in  full  vigor,  but  on  some  one 
subject  he  seems  to  be  deranged.  He  is  possessed,  perhaps,  with  a 
belief  which  every  one  recognizes  as  absurd,  which  he  has  not  reasoned 
himself  into,  and  cannot  be  reasoned  out  of,  which  we  call  an  insane 


TARTIAI.    INSANITY. 


i(;j> 


CriiiK'  Must   he  Hi'sull  of  Iiisaiiitv 


Eicicnt  to 
distinct 
and  in 
las  been 
\-y\  hand- 
lie  Presi- 
Lid  delib- 
lat  about 
the  pur- 
ion  for  it 
ise  facts, 
luired  to 
1  thus,  I 
)nclusion 
lictment, 
is  called, 
We  now 

him  irre- 

has  been 

the  last 

cuse  to 

ave  been 

icide  has 

to  law. 

he never 

anity  be 

vill  here' 

ment  for 

;his  case 
such  as 
cason  is 
or  tlieir 
ane  and 
)n  wliich 
a  man's 
3me  one 
.  with  a 
oasoned 
\  insane 


(lehision,  or  he  lias,  in  addition,  some  morbid  propensity,  seemingly  in 
liarsh  discord  with  the  rest  of  his  intellectual  ami  moral  nature.  These 
are  cases  of  what,  for  a  bettor  term,  is  called  partial  insanity.  Some- 
times its  existence,  and  at  other  times  its  limits,  are  doubtful  and  unde- 
finable.  And  it  is  in  these  eases  that  the  difBculty  arises  of  determining 
whether  the  patient  has  passed  the  line  of  moral  or  legal  accountability 
f(»r  his  actions. 

You  must  bear  in  mind  that  a  man  does  not  become  irresponsible  by 
the  mere  fact  of  being  partially  insane.  Such  a  man  does  not  take 
leave  of  his  passions  by  becoming  insane,  and  may  retain  as  much  con- 
trol over  them  as  in  health.  lie  may  commit  offences,  too,  with  which 
his  infirmity  has  nothing  to  do.  lie  may  be  sane  as  to  his  crime, 
understand  its  nature,  and  be  governed  by  the  same  motives  in  regard 
to  it  as  other  people ;  while,  on  some  other  subject,  having  no  relation 
to  it  whatever,  he  m"-'  be  subject  to  some  delusion.  In  a  reported 
case,  a  defendant  was  convicted  of  cheating  by  false  pretences,  but 
was  not  saved  from  punishment  by  his  insane  delusion  that  he  was  the 
Inwful  son  of  a  well  known  prince.  The  first  thing,  therefore,  to  be 
impressed  upon  you  is,  that  wherever  this  partial  insanity  is  relied  on 
as  a  defence,  it  must  appear  that  the  crime  charged  was  the  product 
of  the  delusion,  or  other  morbid  condition,  and  connected  with  it  as 
effect  with  cause,  and  not  the  result  of  sane  reasoning  or  natui  al  mo- 
tives, which  the  party  may  be  capable  of,  notwithstanding  his  circum- 
scribed disorder.  The  importance  of  this  will  be  appreciated  by  you 
further  on. 

But,  assuming  that  the  infirmity  of  mind  has  had  a  direct  influence 
in  the  production  of  crime,  the  ditficulty  is  to  fix  the  degree  and  char- 
acter of  the  disorder  which,  in  such  case,  will  create  irresponsibility  in 
law.  The  outgivings  of  the  judicial  mind  on  this  subject  have  not 
always  been  entirely  satisfactory  or  in  harmony  with  the  conclusions 
of  nu'dical  science.  Courts  have,  in  former  times,  undertaken  to  lay 
down  a  law  of  insanity  without  reference  to  and  in  ignorance  of  the 
medical  aspects  of  the  sul)ject,  when  it  could  only  be  properly  dealt 
with  through  a  concurrent  and  harmonious  treatment  by  the  two  sciences 
of  law  and  medicine.  They  have,  therefore,  adopted  and  again  dis- 
carded one  theory  after  another  in  the  effort  to  find  some  common 
ground  where  a  due  regard  for  the  security  of  society  and  humanity  for 
the  afllicted  ma}'  meet.  It  will  be  my  effort  to  give  you  the  results 
most  commonly  accepted  by  the  courts. 

It  may  be  well  to  say  a  word  as  to  the  evidence  by  which  courts  and 
juries  are  guided   in  this  dillicult  and  deUcate  inquiry.     That  subtle 


170 


Tin:    LEGAL    TKST    OF    LNSANITY. 


United  Stntt's  v.  (iviiteiui. 


essence  which  wc  call  "  mind"  delies,  of  course,  ocular  inspection.  It 
can  ouIn'  be  known  ])y  its  outward  manifestations,  and  they  are  found 
in  the  language  and  conduct  of  the  man.  By  these  his  tlioughts  and 
emotions  are  read,  and  according  as  tlie}'  conform  to  the  practice  of 
people  of  sound  mind,  who  form  tlie  large  majority  of  mankind,  or  con- 
trast harshly  with  it,  we  form  our  judgment  as  to  his  soundness  of 
mind.  For  this  reason  evidence  is  admissible  to  sliow  conduct  and  lan- 
guage at  different  times  and  on  different  occasions,  wlfich  indicate  to 
the  general  mind  somemorVud  condition  of  the  intellectual  powers  ;  and 
the  more  extended  the  view  of  the  person's  life  the  safer  is  the  judgment 
formed  of  him.  Everything  rehiiiug  to  his  physical  and  mental  his- 
tory is  relevant,  l)ecause  any  conclusion  as  to  his  sanity  must  often 
rest  upon  a  large  number  of  facts.  As  a  part  of  the  language  and  con- 
duct, letters  spontaneously  written  afford  one  of  the  best  indications  of 
mental  ccnidition.  Evidence  as  to  insanity  in  the  parents  and  imme- 
diate relatives  is  also  pertinent.  It  is  never  allowed  to  infer  insanity  in 
the  accused  from  the  mere  fact  of  its  existence  in  the  ancestors.  But 
wlien  testimony  is  given  directly  tending  to  prove  insane  conduct  on  the 
part  of  tiie  accused,  this  kind  of  proof  is  admissible  as  corroborative  of 
the  other.  And,  therefore,  it  is  that  the  defence  have  been  allowed  to 
introduce  evidence  to  you  covering  the  whole  life  of  the  accused,  and 
reaching  to  his  family  antecedents. 

In  a  case  so  full  of  detail  as  this  I  should  deem  it  mj^  dut\'  to  you  to 
assist  you  in  weighing  the  evidence  by  calling  your  attention  to  particu- 
lar parts  of  it.  But  I  wish  you  distinctly  to  understand  that  it  is  your 
province  and  not  mine,  to  decide  upon  the  facts,  and  if  I,  at  any  time, 
seem  to  exjjrcss  or  intimate  an  opinion  on  them,  which  1  do  not  design 
to  do,  it  will  not  be  binding  on  3'ou,  but  j^ou  must  draw  your  own  con- 
clusions from  the  evidence. 

The  instructions  that  have  been  given  you  import,  in  substance,  that 
the  true  test  of  criminal  responsibility,  where  tlie  defence  of  insanity  is 
interposed,  is  wliether  tlie  accused  had  sufficient  use  of  his  reason  to 
understand  the  nature  of  the  act  with  which  he  is  charged,  and  to  under- 
stand that  it  was  wrong  for  him  to  commit  it ;  that  if  this  was  the  fact 
he  is  criminally  responsible  for  it,  whatever  peculiarities  may  be  shown 
about  him  in  other  respects  ;  whereas,  if  his  reason  was  so  defective,  in 
conseciuence  of  mental  disorder,  generally  supposed  to  be  caused  by 
brain  disease,  that  he  could  not  understand  what  he  was  doing,  or  that 
what  he  was  doing  was  wrong,  he  ought  to  be  treated  as  an  irresponsi- 
ble person. 

Now,  as  the  law  assumes  every  one  at  the  outset  to  be  sane  and  re- 


'■ 


h 


e 
II 


ENOILMITY    OF   CHIME. 


171 


Or  Absence  of  Motive  no  Presumption  of  Insanity 


;tion.     It 
ire  found 
iglits  and 
act  ice  of 
1,  or  con- 
ndness  of 
;  and  lan- 
idicate  to 
r'ers ;  and 
judgment 
ontal  his- 
ust  often 
and  con- 
cations  of 
,nd  iinnie- 
nsanity  in 
ors.     But 
net  on  the 
)orative  of 
[illowed  to 
ised,  and 

to  you  to 
particu- 
t  is  j'our 
ny  time, 

ot  design 
own  con- 

ance, that 
nsanity  is 
reason  to 
;o  under- 
the  fact 
36  shown 
ctive,  in 
aused  by 
,  or  that 
responsi- 

;  and  re- 


sponsible, the  question  is,  what  is  there  in  this  case  to  show  tlie  contrary 
as  to  this  defendant?     A  jury  is  nut  warranted  in  inferiing  that  a  man 
is   insane  from  tlie  mere  fact  of  his  committing  a  crime,  or  from  the 
enormity  of  the  crime,  or  from  the  vere  uiq)nreHt  absence  of  adecpiate 
motive  for  it,  for  the  hiw  assumes  tliat  there  is  a  l)ad  motive  —  that  it  is 
prompted  by  malice  —  if  notiiing  else  appears.     l*erhaps  tiie  easiest  way 
for  you  to  examine  into  this  subject  is,  Jirst,  to  satisfy  youiselves  about 
the  condition  of  tiic  prisoner's  mind  for  a  considerable  period  of  time 
l)efore  any  conception  of   the  assassination  entered  it,  and  at  the  pres- 
ent time,  and  then  to  consider  what  evidence  exists  as  to  a  different 
condition  at  the  time  of  tiie  act  charged.     1  shall  not  spend  any  tinie  on 
tiie  first  question,  because  to  examine  it  at  all  would  re(iuire  a  review  of 
evidence  relating  to  over  twenty  years  of  the  defendant's  life,  and  this  has 
been  so  exiuuistivcly  discussed  by  counsel  thai  aii^'thing  1  could  say  would 
be  a  wearisome  repetition.     Suflice  it  to  say,  that,  on  one  side,  this  evi- 
dence is  supposed  to  show  a  chronic  condition  of  insanity  for  many  years 
before  the  assassination  ;  and,  onlhe  (jtlier,  to  show  an  exceptionally  quick 
intellect  and  decided   power  of  discrimination.     You  nuist  draw  ^our 
conclusions  from  the  evidence.     Was  his  orduiary,  permanent,  chronic 
condition  of  mind  stich,  in  consecpience  of  disease,  that  he  was  luiable 
to  understand  the  nature  of  his  actions,  or  to  distinguish  between  right 
and  wrong  in  his  conduct?     Was  he  subject  to  insane  delusions  that 
destroj'ed  his  power  of  so  distinguishing?     And  did  this  contimie  down 
to  and  eml)race  the  act  for  which  he  is  tried?     If  so  he  was  simply  an 
irresponsible  lunatic.     Or,  on  the  otiier  hand,  had  he  the  ordinary  intel- 
ligence of  sane  people,  so  that  he  could  distinguish  between  right  and 
wrong,  as  to  his  own  actions?     If  another  person   had  committed  the 
assassination,  would  he  have  appreciated  the  wickedness  of  it?     If  he 
liad  had  no  special  access  of  insanity  impelling  him  to  it,  as  he  claims 
was  the  case,  would  he  have  understood  the  character  of  such  an  act, 
and  its  wrongfulness  if  another  person  had  suggested  it  to  him?     If  you 
can  answer  these  questions  in  your  own  minds  it  may  aid  you  towards  a 
conclusion  as  to  the  normal  or  ordinary  condition  of  the  prisoner's  mind 
lief  ore  he  thought  of  this  act ;  and  if  you  are  satisfied  that  his  chronic  or 
permanent  condition  was  that  of  sanity,  at  least  so  far  that  he  knew  the 
character  of  his  own  actions,  and  whether  they  were  right  or  wrong,  and 
was  not  under  any  permanent  insane  delusions  which  destroyed   his 
power  of  discriminating  between  right  and  wrong,  as  to  them,  then  the 
only  inquiry  remaining  is  whether  there  was  any  special  insanity  con- 
nected with  this  crime;  and  what  I   shall   further  say  will  be  on  the 
assumption  that  you  find  his  general  condition  to  have  been  that  of  sau- 


172 


THE    LEGAL   TEST   OF    INSANITY. 


UiiiU'il  States  v.  Guituau. 


ity  to  the  extent  I  have  mentioned.  On  this  assumption  it  will  be  seen 
that  the  reUance  of  tlie  defence  is  on  the  existence  of  an  insane  delusion 
in  the  prisoner's  mind,  which  so  i»erverted  his  reason  as  to  incapacitate 
him  from  perceiving  the  difference  between  right  and  wrong  as  to  this 
particular  act. 

As  a  part  of  the  history  of  judicial  sentiment  on  this  subject,  and  by 
way  of  illustrating  the  relation  between  insane  delusions  and  responsi- 
bility, I  will  refer  to  a  celelu'ated  case  in  Englisli  history  already  freely 
commented  on  in  argument.  Nearly  forty  years  ago,  one  McNaghten 
was  tried  in  England  for  killing  a  Mv.  Drummond,  private  secretary  of 
Sir  Robert  Peel,  mistaking  him  for  the  premier  himself.  He  was  ac- 
quitted on  the  ground  of  insanity,  and  his  acquittal  caused  so  much  ex- 
citement that  the  House  of  Lords  addressed  certain  questions  to  the 
judges  of  the  sui)erior  courts  of  England  in  regard  to  the  law  of  in- 
sanity in  certain  cases,  and  their  answers  have  been  since  regarded  as 
settling  the  law  on  this  subject  in  England,  and,  with  some  qualification 
have  been  approved  in  the  courts  of  this  country.  One  of  the  ques- 
tions was :  — 

"  If  a  person,  under  an  insane  delusion  as  to  existing  facts,  commits 
an  offence  in  consequence  thereof,  is  he  thereby  excused  ?  " 

To  which  it  was  answered,  that  — 

"  In  case  he  labors  under  a  partial  delusion  only,  and  is  not  in  other 
respects.insane,  he  must  be  considered  in  the  same  situation,  as  to  re- 
sponsibility, as  if  the  facts  with  regard  to  which  the  delusion  exists  were 
real.  For  example,  if  under  the  intluence  of  his  delusion  he  supposes 
another  man  to  be  in  the  act  of  attempting  his  life,  and  he  kills  that 
man,  as  he  supposes,  in  self-defence^  he  would  be  exempt  from  punish- 
ment. If  his  delusion  was  that  the  deceased  had  inflicted  a  serious  in- 
jury to  his  character  and  fortune,  and  he  killeil  him  in  revenge  for  such 
supi)Osed  injury,  he  would  be  liable  to  punishment." 

This,  you  will  understand,  was  because  it  was  excusable  to  kill  in 
self-defence,  but  not  to  kill  in  revenge  for  an  injury. 

This  has  been  '.n  part  recognizeil  as  law  in  this  country.  Thus  Chief 
Justice  Shaw,  of  Massachasetts,  in  the  case  of  Commomvealth  v. 
Mogei's,^  says :  — 

"  Monomania  may  operate  as  an  excuse  for  a  criminal  act  "  when  the 
**  delusion  is  such  that  the  person  under  its  influence  has  a  real  and 
firm  belief  of  some  fact,  not  true  in  itself,  but  which,  if  it  were  true, 
would  excuse  his  act :  as  when  the  belief  is  that  the  party  killed  had  au 


I 


ki 
b( 


'  7  Mete.  50(). 


INSANE    DELUSIONS. 


173 


will  be  seen 
ine  delusion 
incapacitate 
ig  as  to  this 

iect,  and  by 
lid  responsi- 
ready  freely 
McNaghteti 
iccretary  of 
lie  was  ac- 
jo  much  ex- 
ions  to  the 
le  law  of  in- 
regarded  as 
qualification 
if  the  ques- 
ts, commits 


lot  in  other 
1,  as  to  re- 
exists  were 
le  supposes 
le  kills  that 
om  punish- 
serious  in- 
■)t'  for  such 

e  to  kill  in 

Thus  Chief 
mvealth  v. 

when  tlie 
a  real  and 
were  true, 
led  had  au 


Distinguislied  from  Erroneous  Opinions. 


i 


immediate  design  upon  his  life,  :uid  under  that  belief  the  insane  man 
kills  in  supposed  self-defence.  A  common  instance  is,  where  he  fully 
believes  that  the  act  he  is  doing  is  done  by  the  immediate  command  of 
(lod,  and  he  acts  under  the  delusive  but  sincere  belief  that  what  he  is 
doing  is  by  the  command  of  a  superior  power,  which  supersedes  all 
human  laws  and  the  laws  of  nature." 

The  cases  I  have  referred  to  furnish  an  introduction  to  the  subject  of 
insane  delusions,  which  plays  an  important  part  in  this  case,  and  demands 
careful  consideration.  We  find  it  treated,  to  a  limited  extent,  in  judi- 
cial decisions,  but  learn  more  about  it  from  works  on  medical  jurispru- 
dence and  expert  testimony.  Sane  people  are  said  sometimes  to  have 
delusions,  proceeding  from  temporary  disorder  and  deception  of  the 
senses,  and  they  entertain  extreme  opinions  which  arc  founded  upon 
insutlicient  evidence,  or  result  from  ignorance,  or  they  are  speculations 
on  matters  beyond  the  scope  of  human  knowledge  ;  but  they  are  always 
susceptil)le  of  being  corrected  and  removed  by  evidence  and  argument. 

But  the  insane  delusion,  according  to  all  testimony,  seems  to  be  a" 
unreasoning  and  incorrigible  belief  in  the  existence  of  facts  which  arc 
either  impossible  absolutely,  or,  at  least,  impossible  under  the  circum- 
stances of  the  individual.  A  man,  with  no  reason  for  it,  believes  that 
another  is  attempting  his  life,"  or  that  he  himself  is  the  owner  of  untold 
wealth,  or  that  he  has  invented  something  which  will  revolutionize  the 
world,  or  that  he  is  President  of  the  United  States,  or  that  he  is 
God  or  Christ,  or  that  he  is  dead,  or  that  he  is  immortal,  or  that 
lie  has  a  glass  arm,  or  that  he  is  pursued  by  enemies,  or  that  he  is 
inspired  by  God  to  do  sometiiing.  In  mist  cases,  as  I  understand 
it,  the  fact  believed  is  something  affecting  the  senses.  It  mav 
;ilso  concern  the  relations  of  the  party  with  (jthers.  But  generally 
the  delusion  centres  around  himself,  his  cares,  sufferings,  rights,  and 
wrongs.  It  comes  and  goes  independently  of  the  exercise  of  will  and 
reason,  like  the  phantasms  of  dreams.  It  is,  in  fact,  the  waking  dream 
of  the  insane,  in  which  facts  present  themselves  to  the  mind  as  real, 
just  as  objects  do  to  the  distempered  vision  in  delirium  tremens.  The 
important  thing  is  that  an  insane  delusion  is  never  the  result  of  reason- 
ing and  reflection.  It  is  not  generated  by  them,  and  it  cannot  be  dis- 
pelled by  them.  A  man  may  reason  himself,  and  be  reasoned  by  others, 
into  absurd  opinions,  and  may  be  persuaded  into  impracticable  schemes 
and  vicious  resolutions,  but  he  cannot  be  reasoned  or  persuaded  into 
insanity  or  insane  delusions.  Whenever  convictions  are  founded  on 
evidence,  on  comparison  of  facts  and  opinions  and  arguments,  they  are 
not  insane  delusions. 


174 


TlIK    LKOAI,   TKST    OF    INSANITY. 


Uniti'd  Sliitts  V.  (;iiit»!iiii. 


Tin;  insane  delusion  docs  not  relate  to  mere  sentiments  or  theories  or 
abstract  questions  in  law,  polities,  or  religion.  All  these  are  the  sub- 
jects of  (>pinio7iH,  which  are  beliefs  founded  on  reasoning  and  reflection. 
These  opinions  arc  often  absurd  in  the  extreme.  ]\Ien  believe  in  animal 
magnetism,  spiritualism,  and  other  like  matters,  to  a  degree  that  seems 
unreason  itself,  to  most  other  people.  And  ihere  is  no  absurdit}'  in 
relation  to  religious,  political,  and  social  (piestions  that  has  not  its 
sincere  supporters.  These  opinions  result  from  naturally  weak  or  ill- 
trained  reasoning  powers,  hasty  conclusions  frf)m  insuflicient  data, 
ignorance  of  men  and  things,  credulous  dispositions,  fraudulent  impos- 
ture, and  often  from  perverted  moral  sentiments.  But  still,  they  are 
opinions,  founded  upon  some  kind  of  evidence,  and  liable  to  bo  changed 
by  better  external  evidence  or  sounder  icasoning.  But  thej'  are  not 
insane  delusions. 

Let  me  illustrate  further:  A  man  talks  to  you  so  strongly  about  his 
intercourse  with  departed  spirits  that  you  suspect  insanit)'.  You  find, 
however,  that  he  has  witnessed  singular  manifestations,  that  his  senses 
have  been  addressed  by  sights  and  soiuids,  which  he  has  investigated, 
reflected  on,  and  been  unable  to  account  for,  except  as  supernatural. 
You  see,  at  once,  that  there  is  no  insanity  hei-e ;  that  his  reason  has 
drawn  a  conclusion  from,  evidence.  The  same  man,  on  further  investi- 
gation of  the  phenomena  that  staggered  him,  discovers  that  it  is  all  an 
imposture  and  surrenders  his  belief.  Another  man,  whom  you  know  to 
be  an  affectionate  father,  insists  that  the  Almighty  has  appeared  to  him 
and  commanded  him  to  sacrifice  his  child.  No  reasoning  has  convinced 
him  of  his  duty  to  do  it,  but  the  command  is  as  real  to  him  as  my  voice 
is  now  to  you.  No  reasoning  or  remonstrance  can  shake  his  conviction 
or  deter  him  from  his  purpose.  This  is  an  insane  delusion,  the  coinage 
of  a  diseased  brain,  as  seems  to  be  generally  supposed,  which  defies 
reason  and  ridicule,  which  palsies  the  reason,  blindfolds  the  conscience, 
and  throws  into  disorder  all  the  springs  of  human  action. 

Before  asking  you  to  ai)ply  these  considerations  to  the  facts  of  this 
case  let  me  premise  one  or  two  things. 

The  question  for  you  to  determine  is,  what  was  the  condition  of  the 
prisoner's  mind  at  the  time  when  this  tragedy  was  enacted?  If  he  was 
suflficiently  sane  then  to  be  responsible,  it  matters  not  what  may  have 
been  his  condition  before  or  after.  Still,  evidence  is  properly  admitted 
as  to  his  previous  and  subsequent  conditions,  because  it  throws  light, 
prospectively  and  restrospectively  ui)on  his  condition  at  the  time.  In- 
asmuch as  these  disorders  are  of  gradual  growth  and  indefinite  continu- 
ance, if  he  is  shown  insane  shortly  before  or  after  the   commission  of 


I.NS.XNK    DKLlSlON. 


ITf) 


'  theories  or 
ire  the  siib- 
(1  reflection, 
vc  in  animal 
I  that  seems 
ibsunlity  in 
has  not  its 
weak  or  111- 
Icient  data, 
ilent  impos- 
ill.  tliey  are 
bo  changed 
hey  are  not 

y  about  his 

You  find, 

t  his  senses 

ivestigated, 

ipornatural. 

reason  has 

her  investi- 

it  is  all  an 

ou  know  to 

ired  to  hiiji 

i  convinced 

is  my  voice 

conviction 

the  coinage 

hich  defies 

conscience, 

cts  of  this 

ion  of  the 
If  he  was 
may  have 
r  admitted 
ows  light. 
;ime.  In- 
e  continu- 
mission  of 


KvltU'iico  hi  till-  Cast'. 


11 


ral 


K 


that  h 


th 


nnu',  It  IS  natun 

But  all  the  evidence  must  centre  around  the  time  when  the  deed  was 
<l()iie.  You  have  heard  a  good  deal  of  evidence  respecting  the  peouliari- 
ties  of  the  prisoner  through  a  long  period  of  time  before  this  occur- 
rence, and  it  is  claimed  that  he  was,  during  all  that  time,  subject  to 
delusions  calculated  to  disturb  his  reason  and  throw  it  from  its  balance. 
I  only  desire  to  say  here  that  the  oidy  materiality  of  that  evidence  is  in 
the  probability  il  may  afford  of  the  defendant's  liability  to  such  disorder 
of  the  mind,  and  the  corroboration  it  ma}'  yield  to  other  evidence  which 
may  tend  directly  to  show  such  disorder  at  the  time  of  the  commission 
of  the  crime. 

A  few  words  may  assist  you  in  applying  to  the  eviileuce  what  I  have 
thus  stated. 

You  are  to  determine  whether,  at  the  time  wlien  the  homicide  was 
committed,  the  defendant  was  laboring  under  any  insane  delusion 
prompting  and  impelling  him  to  the  deed.  Very  naturally  you  look  first 
for  any  explanation  of  the  act  which  may  have  been  made  by  the  de- 
fendant himself  at  the  time  or  immediately  before  and  after.  You  have 
had  laid  before  you,  especially,  several  papers  which  were  in  his  po>- 
sossion,  and  which  purport  to  assign  the  motives  for  his  deed.  In  the 
address  to  the  American  people  of  June  Kith,  which  seems  most  fully  to 
set  forth  his  views,  he  sa3's :  — 

"I  conceived  the  idea  of  removing  the  President  four  weeks  ago. 
Not  a  soul  know  of  my  purpose.  I  cnnceivecl  the  idea  myself  and  kept 
it  to  myself.  I  read  the  newspapers  rarefnJIy,  for  and  againut  the  ad- 
ministration, and  gradiialli/  the  conviction  daicned  nn  me  that  the  Presi- 
<1ent\s  remomil  icns  a  political  necessiti/,  because  he  proved  a  traitor  to 
the  men  that  made  him,  and  thereby  imperilled  the  life  of  the  Republic." 

Again :  — 

"  Ingratitude  is  the  basest  of  ci-imes.  That  the  Pi'csident,  under  the 
manipulation  of  his  Secretary  of  State,  has  been  guilty  of  the  basest  in- 
gratitude to  the  stalwarts,  admits  of  no  denial.  The  exin-essed  purpose 
of  the  President  has  been  to  crush  Gen.  Grant  and  Senator  Conkling, 
and  thereb}'  open  the  way  for  his  renomination  in  1884.  In  the  Presi- 
dent's madness  he  has  wrecked  the  once  grand  old  Republican  party, 
and  for  this  he  dies."     *     *     * 

Again :  — 

"  This  is  not  murder.  It  is  a  political  necessity.  It  will  make  my 
friend  Arthur  President,  and  save  the  Republic,"  etc. 

The  other  papers  are  of  similar  tenor,  as  I  think  you  will  find. 

There  is  evidence  that,  when  arrested,  the  prisoner  refused  to  talk, 


i7r, 


iiii:  i.r.tiAL  TKsr  ov  insamtv 


I'llilrd   Stat«'«   V.  CiuiU'lUi. 


but  said  tliat  the  papers  would  explain  all.  ()u  the  iiiglit  nf  the  a.snas- 
siuation,  ac('(»r(liii<;  to  tlu;  wittiess  .laiiios  ,1.  Hrooks,  tlie  prisonei  said  to 
liiiu  tliat  he  hail  thought  over  it  and  prayed  over  it  for  weeks,  and  the 
more  he  thonght  and  prayed  over  it  tlu'  more  satisfied  he  was  that  he 
had  to  do  this  thing,  lie  IkhI  nntih'  up  /liffmhid  Hint  he  IikiI  (Jone  it  as  a 
iiuitter  of  iliitij ;  *  *  *  in;  mjide  up  his  mind  that  they  (the  I'resi- 
dent  nnd  ^Ir.  lilaine)  were  conspiring  against  the  liberties  of  t'le  people, 
and  that  the  I'ri'sident  nuist  die.  This  is  all  that  the  cvidenee  shows  as 
to  the  pi-isoner's  utterances  about  the  time  of  the  shooting.  In  addi- 
ti<jii  to  this  you  have  the  very  ii  portant  testimony  of  the  witness, 
.Joseph  S.  Ue^'uolds,  as  to  the  prisoiu'r's  statements,  oral  and  written, 
made  about  a  fortnight  after  the  shooting.  If  you  credit  this  testimony 
you  lind  him  ri'iterating  the  statements  contained  in  the  other  papers, 
l)ut,  perhaps,  with  more  emphasis  and  clearness.  lie  is  represented  as 
saying  thutthe  sitmttioii  at  AUmnii sinjiii'stcd  Ilia  nnnortil of  tfie  Prpsidcid, 
and  as  the  factiomd  liirht  became  more  bitter,  he  became  more  decided, 
lie  knew  that  Artluu'  would  become  President,  and  that  would  help 
("onkliug,  etc.  Jf  lie  had  not  f«-<n  that  the  President  was  doing  a  great 
ivrong  to  the  stalicarts,  he  looidd  not  have  assassinated  him. 

In  the  address  to  the  American  people,  then  written,  he  says:  — 

''  f  now  ivish  to  ftate  disfineth/  irlnj  I  attempted  to  remore  the  President. 
I  had  read  the  newspa|)ers  /'o;- roifi  against  the  administration,  verj'  care- 
fully, for  two  months,  liefore  I  conceived  th(>  idea  of  removing  him. 
Gradnalhj,  as  the  r'siilt  'f  reading  the  neivspai>ers,  the  idea  settled  on 
me  that  if  the  President  was  removed  it  would  unite  the  two  factions  of 
the  Republican  party,  and  theieby  save  the  government  from  going  into 
the  hands  of  the  ex-rebcls  and  their  Northern  allies.  Jt  icas  mij  aim 
I' inception.,  and,  wheth<  r  right  c/  wrong,  1  take  the  entire  responslbil- 
it!l." 

A  second  paper,  dated  ,1vi\y  iOtli.  addressed  to  the  public,  reiterates 
this  and  concludes,  "  Whet  her  he  lives  or  dies.  I  have  got  the  inspira- 
tion worked  out  of  me." 

We  have  now  befoie  us  everything  emanating  from  the  prisoner 
about  the  time  of  the  shooting  and  within  a  little  over  a  fortnight 
a  t  rwards.  We  have  nothing  further  from  him  until  over  three 
months  afterwards.  Let  us  pause  here  to  consider  the  import  of  all 
this. 

You  are  to  consider,  first,  whether  this  evidence  fairly  represents  the 
true  feelings  and  ideas  which  governed  the  prisoner  at  the  time  of  the 
shooting.  If  it  does,  it  i-epresents  a  state  of  things  which  T  have  not 
seen  characterized  in  anv  judicial  utteiauce  or  authoritative  work  as  an 


INSANK    I)i:i-U.SI()N. 


177 


opinions  Coiitriiry  to  Law. 


the  nssas- 
lei  Hiiid  to 
«,  luid  the 
lis  thiit  he 
yne  it  its  <i 
tiie  PtTsi- 
'le  peopU', 
'  sliows  as 
111  iulili- 
i'  witness, 
1(1  writtfii, 
testimony 
er  papers, 
esented  as 
President, 
e  tleciiled. 
k'ould  lielp 
iuy  a  great 

,'s :  — 
Pr<'s!(lpnt. 
\cvy  care- 
viiis;  him. 
settled  on 
actions  of 
roiiig  into 
,s  mil  own 
^sponslbil- 

reiterates 
(e  inspira- 

prisoner 

foi'tniglit 

per    three 

lort  of  all 

psents  the 

le  of  tlie 

have  not 

)rk  as  an 


insane  delusion.     You  arc  to  consider  whether  it  is  so  deseril)ed   in 
the  cvi<U'nee,  or  does  not,  on  the  contrary,  show  a  dcUl)erato  process 
of  reasoning  and  nllection,  upon  argument  and  evidence  for  and  against, 
resulting  in  an  o/)//(/o/t  tliat  tlic  President  had  Itetrayed  liis  party,  and 
tlial  if  he  wcie  <»ut  of  the  way  it  would  be  a  Itenellt  to  his  party,  ami 
save  the  country  from  the  predominance  of  their  political  opponents. 
So  far  there  was  nothing  insane  in  the  <'niirlusi>)ii.     It  was,  douhtlcss, 
shared  l)y  n  great  many  others.     Hut  the  difference  was  that  the  pris- 
oner, according  to  his  revelations,  went  a  step  liulher,  and  reached  the 
conrictimi  that  to  put  the  President  out  of  the  way  by  assassimition  was 
a  political  necessity.     When  men  reason  the  law  re(itiircs  them  to  reason 
correctly,  as  far  as  their  practical  duties  are  concerned.     When  they 
have  the  t'o/)a(vY// to  distinguish  between  right  and  wrong,  they  are  bound 
to   do  it.     Opinions,   properly  so  called,  —  /.«.,  beliefs  resultingfrom 
reasoning,  ri'llection,  or  examination  of  evidence,  —  afford  no  protec- 
tion against  the  penal  consetpiences  of  crime.     A  man  may  believe  a 
course  of  action  to  be  right,  and  the  law,  which  forbids  it,  to  be  wrong. 
Nevertheless,  he  must  <)bey  the  law,  notwithstanding  liis  convictions. 
And  nothing  can  save  him  from  the  consequences  of  its  violation,  except 
the  fact  that  he  is  so  crazed  by  disease  as  to  be  unable  to  comprehend 
the  necessity  of  obedience  to  it.     Tlio  Mormon  prophets  profess  to  be 
inspired,  and  to  believe  in  the  duty  of  plural  marriages,  although  it  was 
forbidden  by  a  law  of  the  United  States.     One  of  the  sect  violated  the 
law,  and  was  indicted  for  it.     The  judge  who  tried  hira  instructed  the 
jury  — 

"That  if  the  defendant,  under  the  influence  of  a  religious  belief  that 
it  was  right,  —  under  an  inspiration,  if  you  please,  that  it  was  right,  — 
deliberately  married  a  second  time,  having  a  first  wife  living,  the  want  of 
consciousness  of  evil  intent,  the  want  of  understanding  that  he  was  com- 
mitting a  crime,  did  not  excuse  him." 

And  the  Supreme  Court  of  the  United  States,  to  which  the  case  went, 
under  the  title  of  Rn/nolds  v.  U.  ^S.,'   in  approving  this   ruling,  said:  — 

"  Laws  are  made  for  the  government  of  actions,  and  while  they  cannot 
interfere  with  mere  religious  belief  and  opinions,  they  may  with  prac- 
tices. Suppose  one  believed  that  human  sacrifices  were  a  necessary  part 
of  religious  worship,  would  it  be  seriously  contended  that  the  civil  gov- 
ernment under  which  he  lived  could  notinterefere  to  prevent  a  sacrifice? 
Or,  if  a  wife  religiously  believed  it  was  her  duty  to  burn  herself  upon  the 
funeral  pile  of  her  dead  husband,  would  it  be  beyond  the  power  of  the 


1  98  U.  S.  145. 


12 


1- 


178 


THE    LEGAL   TEST   OF    INSANITY. 


United  States  r.  Guitcau. 


civil  government  to  prevent  her  canying  her  belief  into  practice-  So, 
here,  as  a  law  of  the  organization  of  society',  under  the  exclusive  domin- 
ion of  the  United  States,  it  is  provided  that  plural  marriages  shall  not  be 
alloAved,  can  a  man  excuse  his  practice  to  the  contraiT  because  of  his 
religious  belief?  To  i)ermit  this  would  be  to  make  the  professed  doc- 
trines of  religious  belief  superior  to  the  law  of  the  land,  and,  in  effect, 
to  ])ermit  every  citizen  to  become  a  law  unto  himself.  Government 
could  exist  only  in  name,  under  such  circumstances." 

And  so,  in  like  manner,  I  say,  a  man  may  reason  himself  into  a  con- 
viction of  the  f'xpediency  and  patriotic  character  of  political  a^sasina- 
tion,  but  to  allow  him  to  find  shelter  from  punishment  behind  that 
belief,  as  an  insane  delusion,  would  be  shnplj'  monstrous. 

Between  one  and  two  centuries  ago  there  arose  a  school  of  moralists 
who  were  accused  of  maintaining  the  doctrine  that  whenever  an  end  to 
be  attained  is  right,  any  means  necessary  to  attain  it  would  be  justiiiable. 
They  were  accused  of  practising  such  a  process  of  i-easoning  as  would 
justify  every  sin  in  the  decalogue  when  occasion  requireil  it.  They 
incurred  the  odium  of  nearly  all  Christendom  in  consequence.  But  the 
mode  of  reasoning  attributed  to  them  would  seem  to  l>e  imj)liedly,  if  not 
expressly,  reproduced  in  the  papers  written  by  the  defendant  and  shown 
in  evidence :  — 

"It  would  be  a  right  and  patriotic  thing  to  unite  the  Rppublican  party 
and  save  the  republic.  Whatever  means  may  be  necessary  for  that 
object  would  be  justifiable.  The  death  of  the  President  by  violence  is 
the  only  and  therefore  the  necessary  means  of  accomi)lishing  it,  and 
therefore  it  is  justifiable.  Being  justifiable  as  apolitical  necessity,  it  is 
not  murder." 

Such  seems  to  be  the  substance  of  the  ideas  which  he  puts  forth  to  the 
world  as  his  justification  in  these  papers.  If  this  is  the  whole  of  his 
po!?ition,  it  presents  one  of  those  vagaries  of  opinion  for  which  the  law 
has  no  toleration,  and  which  f  u-nishes  no  excuse  whatever  for  crime. 

This,  however,  is  not  all  that  the  defendant  now  claims.  There  is, 
undoubtedly,  a  form  of  irmxne  delusion,  consisting  of  a  belief  by  a  person 
that  he  is  inspired  by  the  Almighty  to  do  something,  —  to  kill  another, 
for  example,  —  and  this  delusion  may  be  so  strong  as  to  impel  him  to 
the  commission  of  a  crime.  The  defendant,  in  this  case,  claims  that  he 
labored  under  such  a  delusion  and  impulse,  or  pressure,  as  he  calls  it,  at 
the  time  of  the  assassination. 

The  prisoner's  unsworn  declarations,  since  the  assassination,  on  this 
subject,  in  his  own  favor,  are,  of  course,  not  evidence,  and  are  not  to  be 
considered  by  you.     A  man's  language,  when  sincere,  may  be  evidence 


.r"*^*.. 


ce-  So, 
e  domin- 
,11  not  be 
(e  of  his 
isod  doc- 
in  effect, 
k'eniment 

to  a  fon- 
assasina- 
lind  that 

moralirits 
m  end  to 
iistiliable. 
as  would 
it.  They 
But  the 
lly,  if  not 
nd  shown 

can  party 
for  that 
iolenee  is 
g  it,  and 
sity,  it  is 

rth  to  the 
lie  of  his 
the  law 
jrirae. 
iThere  is, 
a  person 
another, 
!l  him  to 
IS  that  he 
jails  it,  at 

1,  on  this 

I  not  to  be 

evidence 


INSANE    DELUSION, 


17i> 


Saiif    Biliif. 


of  the  condition  of  his  mind  when  it  is  uttered,  but  it  is  not  evidence  in 
his  favor  of  the  facts  declared  by  him,  or  as  to  his  previous  acts  or  con- 
dition, lie  can  never  manufacture  evidence  in  this  way  in  his  own 
ex(jneration. 

It  is  true  that  the  law  allows  a  prisoner  to  tentt'/i/  in  his  own  behalf, 
and  thereby  makes  his  sworn  testimony  on  the  witness-stand  legal  evi- 
dence, to  be  received  and  considei'ed  by  you,  but  it  leaves  the  weight 
of  that  evidence  to  be  dc^termined  by  you  also,  I  need  liardly  say  to 
you  that  no  verdict  could  safely  be  rendered  upon  the  evidence  of  the 
accused  party  only,  under  sucli  circumstances.  If  it  were  recognized, 
by  such  a  verdict,  that  a  man  on  trial  for  his  life  could  secure  an 
acquittal  b\'  simply  testifying,  himself,  that  he  had  committed  the  crime 
charged  under  a  delusion,  an  inspiration,  an  irresistible  impulse,  this 
would  be  to  proclaim  an  universal  amnesty  to  criminals  in  the  past,  and 
an  unbounded  license  for  the  future,  and  the  courts  of  justice  might  as 
well  be  closed. 

It  must  be  perfectly  apparent  to  you  that  the  existence  of  such  a  de- 
lusion can  be  best  tested  l)y  the  language  and  conduct  of  the  i)artv 
immediately  before  and  at  the  time  of  the  act.  And  while  tiie  accused 
pirty  cannot  make  evidence  f6r  himself  by  his  subsequent  declara- 
tions, on  the  other  hand,  he  may  make  evidence  agai)}st  himself,  and 
when  those  declarations  amount  to  admissions  against  himself,  thej^  are 
evidence  to  be  considered  by  a  jury. 

Let  me  here  say  a  word  about  the  characteristics  of  this  form  of 
delusion.  It  is  easy  to  understand  that  the  conceit  of  being  inspired  to 
do  an  act  may  be  either  a  sane  belief  or  an  insane  delusion.  A  great 
many  Christians  believe,  not  only  that  events  generally  are  providen- 
tially ordered,  but  that  they  themselves  receive  special  providential 
gill  lance  and  illumination  in  reference  to  l»oth  their  inward  thoughts 
and  outwa.rd  actions,  and,  in  an  undefined  sense,  are  inspired  to  pursue 
a  certain  course  of  action  ;  but  this  is  a  mere  sane  belief,  whether  well 
or  ill  founded.  On  tlie  other  hand,  if  you  were  satisfied  that  a  man 
sincerely,  though  insanely,  believed  that,  like  Saul  of  Tarsus,  on  his 
way  to  Damascus,  he  had  been  smitten  to  the  earth,  had  seen  a 
great  light  shining  around  him,  and  heard  a  voice  from  heaven, 
warning  a  1  commanding  him,  and  that  thenceforth,  in  reversal  of  liis 
wliole  previous  moral  bent  and  mental  convictions,  he  had  acted  upon 
tliis  supposed  revelation,  j-ou  would  have  before  you  a  case  of  imagin- 
ary inspiration  amounting  to  an  insane  delusion.  The  question  for  you 
to  consider  is,  whether  the  case  of  tiie  defendant  presents  anything 
analogous  to  this.     The  theory  of  the  government  is  that  the  defendant 


I 


I' 

ii 


180 


THE    LEGAL   TEST   OF   INSANITY. 


United  States  v.  Guiteiviu 


committed  the  homicide  in  the  full  possession  of  his  faculties,  and  from 
perfectly  sane  motives ;  that  he  did  the  act  from  revenge,  or  perhaps 
from  a  morbid  desire  for  notoriety  ;  that  he  calculated  deliberately  upon 
being  protected  by  those  who  were  politically  benefited  by  the  death  of 
the  President,  and  upon  some  ulterior  benefit  to  himself ;  that  he  made 
no  pretence  to  inspiration  at  the  time  of  the  assassination,  nor  until  he 
discovered  that  his  expectations  of  help  from  the  so-called  stalwart  wing 
of  the  Republican  party  wore  delusive,  and  that  these  men  were  de- 
nouncing his  deed,  and  that  then,  for  the  first  time,  when  he  saw  the 
necessity  of  making  out  some  defence,  he  broached  this  theory  of  in- 
spiration and  Irresistible  pressure,  forcing  him  to  the  commission  of 
the  act.  If  this  be  true,  you  would  have  nothing  to  indicate  the  real 
motives  of  the  act  except  what  I  liave  already  considered.  Whether  it 
is  true  or  not,  you  must  determine  from  all  the  evidence. 

It  is  true  that  the  term  "  inspiration  "  does  not  appear  in  the  papers 
first  written  by  the  defendant,  nor  in  those  delivered  to  Gen.  Reynolds, 
except  at  the  close  of  the  one  dated  July  lOth,  in  which  he  says  that 
the  inspiration  is  worked  out  of  him ;  though  what  that  means  is  not 
clear.  It  is  true,  also,  that  this  was  after,  according  to  Gen.  Reynolds, 
he  had  been  informed  how  he  was  being  denounced  by  the  stalwart 
Republicans.  In  one  of  the  first  papers  I  have  referred  to,  the  Presi- 
dent's removal  was  called  an  act  of  God,  as  were  his  nomination 
and  election  ;  but  whether  this  meant  anything  more  than  that  it  was  an 
act  of  God,  in  the  sense  in  which  all  great  events  are  said  to  l)e  ordered 
by  Providence,  is  not  clear.  Dr.  Noble  Young  testifies  that  a  few 
days  after  defendant's  entrance  into  the  prison  —  a  time  not  defin- 
itely fixed  —  he  told  him  he  was  inspired  to  do  the  act,  but  (jualified  it 
l)y  saying  that  if  the  President  should  die  he  would  be  confirmed  in 
his  belief  that  it  was  an  inspiration  ;  but  if  not,  perhaps  not. 

The  emphatic  manner  in  which,  in  both  the  papers  delivered  to  Gen. 
Reynolds,  the  defendant  declared  that  the  assassination  was  his  oiC7i 
conception  and  execution,  and  ivhether  riyht  or  ivrong  he  took  the  entire 
responsibility,  his  detailed  description  of  the  man'>  .  ^V  which  the  idea 
occurred  to  him,  and  how  it  was  strengthened  by  his  reading,  etc.,  and 
his  omission  to  state  anything  about  a  direct  inspiration  from  the  Deity 
at  that  time,  are  all  circumstances  to  be  considered  by  you  on  the 
question  whether  he  then  held  that  iilea.  On  the  other  hand,  you  have 
the  prisoner's  testimony  in  which  he  now  asserts  that  he  conceived  him- 
self to  be  under  an  inspiration  at  the  time.  He  also  advanced  this  claim 
in  his  interviews  with  the  expert  witnesses  shortly  before  the  trial. 

It  becomes  necessary,  then,  to  examine  the  case  on  the  assumption 


UNITED   STATES  V.  GUITEAU. 


181 


The  Medical  Evidence  Reviewed. 


and  from 
r  perhaps 
tely  upon 
!  death  of 
b  he  made 
r  until  he 
(vart  wing 
I  were  de- 
3  saw  the 
Dry  of  in- 
aission  of 
;e  the  real 
V'hether  it 

he  papers 
Reynolds, 
says  that 
ms  is  not 
Reynolds, 
i  stalwart 
the  Presi- 
Dmination 

it  was  an 
e  ordered 

at  a  few 

ot  defin- 
iialified  it 

irmed  in 

to  Gen. 
3  his  oicn 
the  entire 

the  idea 
etc.,  and 
the  Deity 
u  on  the 
vou  have 
ved  him- 
his  claim 
ial. 
sumption 


that  the  prisoner's  testimony  may  be  true,  and  to  ascertain  from  his 
declaration  and  testimony  what  kind  of  inspiration  it  is  which  he  thus 
asserts. 

According  to  the  testimony  of  Dr.  Strong,  he  inquired  of  the  defend- 
ant if  he  claimed  to  have  had  any  direct  revelation  from  heaven,  and 
the  answer  was  that  lie  did  not  believe  in  any  such  nonsense.  Accord- 
ing to  Dr.  McDonald,  who  intei-viewed  the  prisoner  on  the  thirteenth  of 
November,  he  did  not  then,  in  terms,  speak  of  his  idea  of  removing  the 
President  as  an  inspiration,  but  as  a  conception  of  his  own,  and  said 
that,  after  conceiving  the  idea,  he  tried  to  put  it  aside ;  that  it  was  re- 
pulsive to  him  at  first;  that  he  waited  a  week  or  two,  thinking  over  it 
and  waiting  for  the  Almighty  to  interfere.  He  had  conceived  the  idea 
himself,  but  he  wished  the  Ahnighty  to  have  the  opportunity  of  inter- 
fering to  prevent  its  execution  ;  and  at  the  end  of  two  w^eeks,  no  intoi- 
ference  coming  from  the  Almighty,  he  formed  the  deliberate  purpose  of 
executing  the  act,  etc.  According  to  the  testimony  of  Dr.  Gra}-,  the 
prisoner  said  that  he  had  received  no  instructions,  heard  no  voice  of 
God,  saw  no  vision  in  the  night,  or  at  any  time ;  that  the  idea  came  into 
his  own  mind  first,  and  after  thinking  over  it  and  reading  the  papers, 
when  he  arrived  at  the  conclusion  to  do  the  act,  he  belieoed  then  it  was 
a  riglit  act,  and  was  justified  by  the  political  situation.  When  asked 
how  he  could  apply  this  as  an  instruction  from  the  Deity,  he  said  it  was 
a  pressure  of  the  Deity;  that  this  duty  ofdoinc  't,  as  he  claimed,  had 
pressed  him  to  it.  Again,  he  said  he  had  not  connected  the  Deity  iciththe 
inception  and  development  of  the  act;  that  it  was  his  oivyi.  He  did  not 
get  the  inspiration  until  tiie  time  came  for  it,  and  that  the  inspiration 
came  when  he  had  reached  the  conclusion  and  determination  to  do  the  act. 
Perhaps  the  most  remarkable  of  the  prisoner's  statements  to  Dr.  Gra}' 
was  that  at  the  very  time  when  he  was  planning  the  assassination,  he  was 
also  devising  a  theory  of  insanity  which  should  be  his  defence,  which 
theory  was  to  l)e  that  he  believed  the  act  of  killing  was  an  inspired  act. 
Perhaps  equally  remarkable  was  the  prisoner's  theory  propounded  in 
this  conversation,  viz.,  that  he  was  not  mediccdly  insane,  but  legally  so, 
/.e.,  irresponsible^  because  the  act  was  done  without  malice. 

Finally,  on  this  subject,  you  have  the  defendant's  own  testimony. 
He  does  not  profess  to  have  had  any  visions  or  direct  revelation  or  dis- 
torted conception  of  facts.  But  he  says  that  while  pondering  over  the 
l)olitical  situation  the  idea  suddenly  occurred  to  him  that  if  the  Presi- 
dent were  out  of  the  way  the  dissensions  of  his  party  would  be  healed  ; 
that  he  read  the  papers  with  an  eye  on  the  possibility  of  the  President's 
removal,  and  the  idea  kept  pressing  on  him  ;  that  he  was  horrified  ;  kept 


182 


THE   LEGAL   TEST   OF   INSANITY. 


United  States  v.  Guitean. 


throwing  it  off ;  did  not  want  to  give  it  attention  ;  tried  to  shake  it  off ; 
but  it  kept  growing  upon  liim,  so  that  at  the  end  of  two  weeks  liis  mind 
was  thoroughly  fixed  as  to  the  necessity  for  the  President's  removal  and 
the  divinity  of  the  inspiration,  lie  never  had  the  slightest  doubt  of  the 
divinity  of  the  inspiration  from  the  first  of  June.  He  kept  praying 
about  it,  and  that  if  it  was  not  the  Lord's  will  that  he  should  remove  the 
President  there  would  be  some  way  by  which  his  providence  would  in- 
tercept the  act.  He  kept  reading  the  newspapers,  and  his  inspiration 
was  being  confirmed  eoery  day,  and  since  the  first  day  of  June  he  has 
never  had  a  doubt  about  the  divinity  of  the  act.  In  the  cross-examina- 
tion he  said :  If  the  political  necessity  had  not  existed  the  President 
would  not  have  been  removed — there  would  have  been  no  necessity  for 
the  inspiration.  About  the  first  of  June  he  made  up  his  mind  as  to  the 
inspiration  of  the  act,  and  the  necessity  for  it ;  from  the  sixteenth  of 
June  to  the  second  of  July,  he  prayed  that  if  he  luas  wrong,  the  Deity 
would  stop  him  by  his  Providence ;  in  May  it  was  an  embryo  inspira- 
tion —  a  mere  impression  that  po&sibly  it  might  have  to  be  done ;  he 
was  doubting  whether  it  was  the  Deity  that  was  inspiring  him,  and  was 
l)raying  that  the  Deity  would  not  let  him  make  a  mistake  about  it ;  and 
that  at  last  it  was  the  Deity,  and  not  he,  who  killed  the  President. 
Again,  the  confirmation  that  it  was  the  Deity,  and  not  the  devil,  who  in- 
spired the  idea  of  removing  the  President,  came  to  him  in  the  fact  that 
the  newspapers  were  all  denouncing  the  President.  He  saw  that  the 
political  situation  required  the  removal  of  the  President,  and  that  is  the 
way  he  knew  that  his  intended  act  was  inspired  by  the  Deity ;  but  for 
the  political  situation,  he  would  have  tnought  that  it  came  from  the 
deA-il.  This  is  the  substance  of  all  that  appears  in  the  case  on  the  sub- 
ject of  inspiration. 

It  is  proper  to  call  your  attention  to  some  variations  in  the  prisoner's 
statements  at  different  times.  In  two  of  the  papers  of  July  he  says  it 
xoas  his  own  conception,  and  he  took  the  entire  responsibility.  In  the 
conversation  reported  by  Dr.  Gray,  in  November,  he  did  not  connect 
the  Deity  witli  the  inception  of  the  act.  The  conception  was  his  own, 
and  the  inspiration  came  after  he  made  up  h  \  mind ;  but  he  does  not 
explain  what  he  meant  by  the  inspiration,  s  iless  it  was  that  it  was  a 
pressure  upon  him,  or,  as  he  expresses  it,  the  c  ty  of  doing  it  was  pre  ,s- 
ing  upon  him.  In  his  testimony  he  disclaims  all  responsibility,  while  he 
still  speaks  of  the  idea  of  removing  the  President  as  an  impression  which 
arose  in  his  own  mind  first.  He  says  that  in  his  reflections  about  it  he 
debated  with  himself  whether  it  cume  from  the  Deity  or  the  devil ; 
prayed  that  God  would  prevent  it  if  it  was  not  His  will ;  and  finally 


UNITED   STATES  V.  GUITEAU. 


18.'i 


The  Medical  Evidence  He  viewed. 


ike  it  off ; 
his  mind 
aoval  and 
ibt  of  the 
'  praying 
imove  the 
would  in- 
ispiration 
le  he  has 
examina- 
President 
essity  for 
as  to  the 
teenth  of 
;he  Deity 
►  inspira- 
ione ;  he 

and  was 

t  it ;  and 

fresident. 

,  who  in- 

fact  that 

that  the 
lat  is  the 

but  for 
from  the 

the  sub- 

risoner's 

le  says  it 

In  the 

connect 

his  own, 

loes  not 

it  was  a 

is  prt  ,s- 

while  he 

)n  which 

ut  it  he 

e  devil ; 

il  finally 


made  up  his  mind,  from  a  consideration  of  the  political  situation,  that 
it  was  inspired  by  Him. 

On  all  this  the  question  for  you  is,  whether,  on  the  one  hand,  the  idea 
of  killing  the  President  first  presented  itself  to  the  defendant  in  the 
shape  of  a  command  or  inspiration  of  the  Deity,  in  the  manner  in  which 
insane  delusions  of  that  kind  arise,  of  which  you  have  heard  much  in 
the  testimony ;  or,  on  the  other  hand,  it  was  a  conception  of  his  own 
followed  out  to  a  resolution  to  act ;  and  if  he  tliought  at  all  about  in- 
spiration, it  was  simply  a  speculation  or  theory,  or  theoretical  conclu- 
sion of  hiis  own  mind,  drawn  from  the  expediency  or  necessity  of  the 
act,  that  his  previously  conceived  ideas  were  inspired.  If  the  latter  is 
a  correct  representation  of  his  state  of  mind,  it  would  show  nothing 
more  than  one  of  the  same  vagaries  of  reasoning  that  I  have  already 
characterized  as  furnishing  no  excuse  for  crime. 

Unquestionably  a  man  may  be  insanely  convinced  that  he  is  inspired 
by  the  Almighty  to  do  an  act,  to  a  degree  that  will  destroy  his  responsi- 
bility for  the  act.  But,  on  the  other  hand  he  cannot  escape  responsi- 
l)ility  by  baptizing  his  own  spontaneous  conceptions  and  reflections  and 
deliberate  resolves  with  the  name  of  inspiration. 

On  the  direct  question  whether  the  prisoner  knew  that  he  was  doing 
wrong  at  the  time  of  the  killing,  the  only  direct  testimony  is  his  own,  to 
the  contrary  effect. 

One  or  two  circumstances  maj'  be  suggested  as  throwing  some  light  on 
the  queslion.  The  declaration  that,  right  or  icroinj,  he  took  the  respon- 
sibility, made  shortly'  afterwards,  may  afford  some  indication  whether 
the  question  of  wrong  had  suggested  itself.  And  his  testimonj'  that  he 
was  horrified  when  the  idea  of  assassination  first  occurred  to  him,  and 
he  tried  to  put  it  away,  is  still  more  pertinent.  His  statement,  testified 
to  by  Dr.  Gray,  that  he  was  thinking  of  the  defence  of  inspiration  while 
the  assassination  was  being  planned,  tends  to  show  a  knowledge  of  the 
legal  consequences  of  the  killing.  His  present  statement,  that  no  pun- 
islnnent  would  be  too  quick  or  severe  for  him  if  he  killed  the  President 
otherwise  thaa  as  agent  of  the  Deity,  shows  a  present  knowledge  of  the 
wrongfulness  of  the  act  in  itself ;  but  this  declaration  is  of  value  on 
this  question  of  knowledge,  only  in  case  you  should  believe  that  he  had 
the  same  appreciation  of  the  act  at  the  time  of  its  commission  and  dis- 
believe his  story  about  the  inspiration. 

I  have  said  nearly  all  that  I  need  say  on  the  subject  of  insane  delusion. 
The  answer  of  the  English  judges,  that  I  have  referred  to,  has  not  been 
deemed  entii-ely  satisfactory,  and  the  courts  have  settled  down  upon  the 
iiuestion  of  knowledge  of  right  and  wrong  as  to  the  particular  act,  or 


184 


THE    LEGAL   TEST   OF    INSANITY. 


United  States  v.  Guito;>  i. 


rather  the  capacity  to  know  it  as  the  test  of  rcsponsibilit}- ;  and  the  ques- 
tion of  insane  delusion  is  only  important  as  it  throws  light  upon  the 
question  of  knowledge  of,  or  capacity  to  know,  the  right  and  wrong. 
If  a  man  is  under  an  insane  delusion  that  another  man  is  attempting  his 
life,  and  kills  him  in  self-defence,  hu  does  not  know  that  he  is  commit- 
ting an  unnecessary  homicide.  If  a  man  insanely  believes  that  he  has  a 
command  from  the  Almighty  to  kill,  it  is  difficult  to  understand  how 
such  a  man  can  know  that  it  is  wrong  for  him  to  do  it.  A  man  may 
have  some  other  insane  delusion  which  would  be  quite  consistent 
with  a  knowledge  that  such  an  act  is  wrong,  —  such  as,  that  he  had 
received  an  injury,  —  and  he  might  kill  in  revenge  for  it,  knowing  that  it 
wou!  ''f>iig. 

A.  i    .e  dwelt  upon  the  question  of  insane  delusion,  simply  be- 

cause evidence  relating  to  that  is  evidence  touching  the  defendant's 
pov. ,'.  or  wanf  of  power,  from  mental  disease,  to  distinguish  between 
right  and  ,  onj^,  -^i*  to  +he  act  done  by  him,  which  is  the  broad  question 
for  you  to  determine,  and  because  that  is  the  kind  of  evidence  on  this 
question  which  is  relied  on  by  the  defence. 

It  has  been  argued  with  great  force,  on  the  part  of  the  defendant  that 
there  are  a  great  many  things  in  his  conduct  which  could  never  be  ex- 
pected of  a  sane  man,  and  which  are  only  explainable  on  the  theory  of 
insanity.  The  very  extravagance  of  his  expectations  in  connection  with 
this  deed  —  that  he  would  be  protected  by  the  men  he  was  to  benefit, 
would  be  applauded  by  the  whole  country  when  his  motives  were  made 
known  —  has  been  dwelt  upon  as  the  strongest  evidence  of  unsound- 
ness. Whether  this  and  other  strange  things  in  his  career  are  really 
indicative  of  partial  insanity,  or  can  be  accounted  for  by  ignorance  of 
men,  exaggerated  egotism,  or  pei-verted  moral  sense,  might  be  a  question 
of  difficulty.  And  difficulties  of  this  kind  you  might  find  very  perplex- 
ing, if  you  were  compelled  to  determine  the  question  of  insanity  gen- 
erally, without  any  rule  for  your  guidance.  But  the  only  safe  rule  for 
you  is  to  direct  your  reflections  to  the  one  question  which  is  the  test  of 
criminal  responsibility,  and  which  has  been  so  often  repeated  to  j'ou, 
viz.,  whether,  whatever  may  have  been  the  prisoner's  singularities  and 
eccentricities,  he  possscssed  the  mental  capacity,  at  the  lime  the  act  was 
committed,  to  know  that  it  was  wrong,  or  was  deprived  of  that  capacity 
by  mental  disease. 

In  all  this  matter  there  is  one  important  distinction  that  you  must 
not  lose  sight  of,  •'nd  you  are  to  decide  how  far  it  is  applicable  to  this 
case.  It  is  the  distinction  between  mental  and  moral  obliquity;  be- 
tween a  mental  incapacity  to  understand  the  distinctions  between  right 


DEPRAVITY  NOT  INSANITY. 


185 


Evidence  c  '  Prisoner's  Life  Relevant. 


the  ques- 
upon  the 
d  wrong, 
ipting  his 
3  comirit- 
t  he  hns  a 
itand  how 
man  may 
jonsistent 
it  he  had 
ng  that  it 

mply  be- 
fendant's 
I  between 
question 
le  on  this 

dant  that 
jer  be  ex- 
:hcory  of 
tion  with 

benefit, 
re  made 

nsound- 
e  really 
ranee  of 
question 
perplex- 
ity gen- 
rule  for 
e  test  of 

to  you, 
ties  and 

act  was 
:apacity 

ou  must 
to  this 
ty;  be- 
en riglit 


and  wrong,  and  a  moral  indifference  and  insensibility  to  those  distinc- 
tions. The  latter  results  from,  a  blunted  conseienco,  a  torpid  moral 
sense,  or  depravity  of  heart ;  and  sometimes  we  are  not  inapt  to  mis- 
take it  for  evidence  of  something  wrong  in  the  mental  constitution. 
We  have  probably  all  known  men  of  more  than  the  average  of  mental 
endowments,  whose  whole  lives  have  Ijcen  marked  by  a  kind  of  moral 
obliquity  and  apparent  absence  of  the  moral  sense.  We  have  known 
others  who  have  first  yielded  to  temptation  with  pangs  of  remorse,  but 
each  transgression  became  easier,  until  dishonesty  became  a  confirmed 
habit,  and  at  length  all  sensitiveness  of  conscience  disappeared.  When 
we  see  men  of  seeming  intelligence  and  of  better  antecedents  reduced 
to  this  condition,  we  are  prone  to  wonder  whether  the  balance-wheels  of 
the  intellect  are  not  thrown  out  of  gear.  But  indifference  to  what  is 
right  is  not  ignorance  of  it,  and  depravity  is  not  insanity,  and  we  must 
be  careful  not  to  mistake  moral  perversion  for  mental  disease. 

Whether  it  is  true  or  not  that  insanity  is  a  disease  of  the  physical 
organ,  the  brain,  it  is  clearly  in  one  sense  a  disease,  when  it  attacks  a 
man  in  his  maturity.  It  involves  a  departure  from  his  normal  and 
natural  condition.  And  this  is  the  reason  whj'  an  inquiry  into  the 
man's  previous  condition  is  so  pertinent,  because  it  tends  to  show 
whether  what  is  called  an  act  of  insanity  is  the  natural  outgrowth  of 
his  disposition  or  is  utterly  at  war  with  it,  and  therefore  indicates  an 
unnatural  change.  A  man  who  is  represented  as  having  been  always  an 
affectionate  parent  and  husband,  suddenh'  kills  wife  and  child.  This 
is  something  so  unnatural  for  such  a  man  that  a  suspicion  of  his  insan- 
ity arises  at  once.  On  further  inquiry  we  learn  that,  instead  of  being 
as  represented,  the  man  was  alwaj's  passionate,  violent,  and  brutal  in 
his  family.  We  then  see  that  the  act  was  the  probable  result  of  his  bad 
passions,  and  not  of  a  disordered  mind.  Hence  the  importance  of 
viewing  the  moral  as  well  as  intellectual  side  of  the  man,  in  the  effort 
to  solve  the  question  of  sanit}'. 

That  evidence  on  this  subject  is  proper  was  held  bj'  the  Supreme 
Judicial  Court  of  New  Hampshire  in  State  v.  Jones.^  Judge  Lauo 
said :  — 

"The  history  of  the  defendant  and  evidence  of  his  conduct  at  vari- 
ous times  during  a  period  of  man}-  years  before  the  act  for  which  he 
was  tried,  tending  to  show  his  temper,  disposition,  and  character,  were 
admitted  against  his  objection.  It  was  for  the  jury  to  say  whether  the 
act  was  the  product  of  insanity,  or  the  naturally  malignant  and  vicious 

»  50  N.  H.  .m. 


1«6 


THE    LKOAL   TEST   OF    INSANITY 


United  States  v.  Guitean. 


heart.  The  condition  of  the  man's  mind,  whether  healthy  or  diseased, 
was  the  very  matter  in  issue.  Tins  must  be  determined  in  some  way  or 
otlier  from  external  manifestations  as  exhibited  in  his  conduct.  To 
know  whetlier  an  act  is  tlie  product  of  a  diseased  mind  it  is  important 
to  ascertain,  if  possible,  how  the  same  mind  acts  in  a  state  of  health. 
The  condition  of  sanity  or  insanity  shown  to  exist  at  one  time  is  pre- 
sumed to  continue.  For  these  reasons  and  others,  which  I  have  not 
tiiought  it  necessary  to  enlarge  ui)on,  it  would  seem  that  evidence  tend- 
ing to  show  defendant's  mental  and  moral  character  and  condition  for 
many  years  before  the  act,  was  properly  received." 

It  was  upon  the  princii)le  enunciated  in  this  case  that  evidence  was 
received  in  the  present  case  tending  to  show  the  moral  character  of  the 
accused,  and  offered  for  the  purpose  of  showing  that  eccentricities  relied 
on  as  proof  of  unsound  mind  were  accounted  for  by  want  of  moral 
princii)le. 

From  the  materials  that  have  been  presented  to  you  two  pictures  nave 
been  drawn  by  coiuisel.  The  oni'  represents  a  youth  of  more  than  the 
average  of  mental  endowments,  surrounded  by  certain  demoralizing  in- 
lluences  at  a  time  when  his  character  was  being  developed ;  starting  in 
life  without  resources,  but  developing  a  vicious  sharpness  and  cunning ; 
conceiving  "  enterprises  of  great  pith  an(l  moment,"  that  indicated  un- 
usual forecast,  though  beyond  his  resources ;  consumed  all  the  while  by 
insatiate  vanity  and  craving  for  notoriety ;  violent  in  temper,  selfish  in 
disposition,  immoral,  and  dishonest  in  every  direction ;  leading  a  life, 
for  years,  of  hypocris}',  swindling,  and  fraud ;  and  finally,  as  the  cul- 
mination of  a  dei)raved  career,  working  himself  into  a  resolution  to 
startle  the  countr}'  with  a  crime  that  would  secure  him  a  bad  eminence, 
and,  perhaps,  a  future  rewaril.  The  other  represents  a  youth  born,  as 
it  were,  under  malign  influences,  the  child  of  a  diseased  mother,  and  a 
father  subject  to  religious  delusions  ;  deprived  of  his  mothei"  at  an  early 
age  ;  reared  in  retirement  and  imder  the  influence  of  fanatical  religious 
views ;  subsequently,  with  his  mind  filled  with  fanatical  theories, 
launched  upon  the  world  with  no  guidance  save  his  own  impulses ;  then 
evincing  an  incapacity  for  any  continuous  occi:pation  ;  changing  from 
one  pursuit  to  another —  now  a  lawyer,  now  a  religionist,  now  a  iioliti- 
cian  —  unsuccessful  in  all;  full  of  wild,  impracticable  schemes,  for 
which  he  had  neither  resources  nor  ability  ;  subject  to  delusions  about 
his  abilities  and  prospects  of  success,  and  his  relations  with  others ;  his 
mind  incoherent  and  incapable  of  reasoning  connectedl}'  on  any  subject ; 
withal,  amiable,  gentle,  and  not  aggressive,  but  the  victim  of  surround 
ing  influences,  with  a  mind  so  weak  and  a  temi)erament  so  impressible 


UNITED    STATES  V.  GUITEAU. 


187 


Instructions. 


diseased, 
me  way  or 
iluct.  To 
important 
of  health, 
me  is  pre- 
'  have  not 
eiice  tend- 
idition  for 

dence  was 
ter  of  the 
ities  relied 
p  of  moral 

tures  nave 

e  than  the 

aliziiig  in- 

itartin<r  In 

cunning; 

icated  un- 

while  by 

selfish  in 

ing  a  life, 

.s  the  eul- 

)lution  to 

minence, 

born,  as 

or,  and  a 

t  an  early 

religious 

theories, 

ses;  then 

ing  from 

'  a  politi- 

mes,  for 

ns  about 

lers :  his 

subject ; 

i  r  round  • 

ressible 


that,  under  the  excitement  of  political  controversy,  he  became  frenzied 
and  insanely  deluded,  and  thereby  impelled  to  the  commission  of  a 
crime,  the  guilt  of  which  he  could  not,  at  the  moment,  understand. 

It  is  for  you  to  determine  which  of  these  is  the  portrait  of  the 
accused. 

Before  saying  a  last  word  my  attention  has  just  been  called  to,  and  I 
have  been  requested  by  counsel  for  the  defendant  to  give,  certain  addi- 
tional instructions.     One  is :  — 

"  It  is  the  duty  of  each  juror  to  consider  the  evidence,  all  pertinent 
remarks  of  counsel,  and  all  the  suggestions  of  fellow-jurors,  l)ut  to  dis- 
regard all  statements  of  counsel  and  declarations  of  the  prisoner  except 
such  as  are  founded  upon  the  evidence." 

Of  course,  that  is  a  truism,  and  does  not  require  any  particular  in- 
struction. 

"  The  testimony  of  the  prisoner  they  will  weigh  as  to  credibilit}',  and 
judge  of  l)y  the  same  rules  and  considerations  applied  to  that  of  other 
witnesses." 

That  is  all  true,  provided  that  all  the  influegccs  that  governed  the 
prisoner  are  duly  weighed  and  considered. 

"And  after  all,  each  juror  should  decide  for  himself  upon  his  oath  as 
to  what  his  verdict  should  be.  No  juror  should  yield  his  deliberate, 
conscientious  conviction  as  to  what  the  verdict  should  be,  either  at  the 
instance  of  a  fellow-juror  or  at  the  instance  of  a  majority.  Above  all, 
no  juror  should  yield  his  honest  convictions  for  the  sake  of  unanimity, 
or  to  avert  the  disaster  of  a  mistrial.  Jurors  have  nothing  to  do  with 
the  consequences  of  their  verdict." 

All  that,  gentlemen,  is  true.  Some  of  it  is  substantially  embodied,  I 
think,  in  what  I  have  already  said. 

"  The  opinions  of  experts  upon  the  question  of  the  sanity  or  insanity 
of  the  prisoner  on  the  second  day  of  July  last,  which  is  the  only  date 
as  to  which  it  is  necessaiy  for  the  j  ury  to  agree  upon,  on  that  question, 
rests  wholly  upon  the  hyjiothetical  questions  proposed  to  them,  and  the 
jury  must  believe,  from  the  evidence,  that  the  supposed  facts  stated  in 
a  h3'pothetical  question  are  true,  to  entitle  the  answer  thereto  to  any 
weight." 

I  cannot  give  that  one  because  I  think  their  opinions  may  be  founded 
upon  other  grounds  than  the  assumed  truth  of  the  hypothetical  ques- 
tion ;  or,  at  least,  that  is  a  question  for  the  jury. 

"The  fact  of  insanity  or  sanity  of  the  prisoner  before  or  after  the 
second  day  of  July,  1881,  is  not  in  issue  in  this  case,  except  as  collat- 
eral to  the  main  fact  of  sanity  or  insanity  at  the  time  of  shooting  of 


I: 


188 


THK   LKUAL   TEST    OB'    INSANITY. 


United  States  v.  Giilteiui. 


President  Garfield,  on  the  second  day  of  July,  IHSl  ;  and  the  only  evi- 
dence as  to  sucii  main  fact  is  in  the  testimony  of  the  prisoner  himself, 
his  words  and  acts,  and  the  testimony  of  the  experts  in  answer  to  the 
hypothetical  question." 

That  is,  I  tliink,  one  that  I  cannot  give,  because  the  question  involved 
is  one  of  fact  for  tiie  jury. 

And  now,  to  sum  up  all  that  I  have  said  in  a  few  words :  — 

If  you  find  from  the  whole  evidence  that,  at  the  time  of  the  commis- 
sion of  the  homicide,  the  prisoner,  in  consequence  of  disease  of  mind, 
was  laboi'ing  under  such  a  defect  of  his  reason  that  he  was  incapable  of 
understanding  what  he  was  doing,  or  that  it  was  M'rong,  —  as  for 
example,  if  he  was  under  an  insane  delusion  that  the  Almighty  had 
commanded  him  to  do  tlie  act,  and  in  consequence  of  tliat  he  was  inca- 
pable of  seeing  that  it  was  a  wrong  tiling  to  do,  —  then  he  was  not  in  a 
responsible  condition  of  mind,  and  was  an  object  of  compassion,  and 
not  of  justice,  and  ought  to  be  now  acquitted.  On  the  other  hand  if  you 
find  that  he  was  under  no  insane  delusion,  such  as  I  have  described,  but 
had  possession  of  his  faculties  and  the  power  to  know  that  his  act  was 
wrong,  and  of  his  own  free  will,  deliberately  conceived,  plaimed,  and 
executed  this  homicide,  then,  wlietlier  liis  motive  was  personal  vindic- 
tiveness  or  political  animosity,  or  a  desire  to  avenge  a  supposed  political 
wrong,  or  a  morl)id  desire  for  notoriety,  or  fanciful  ideas  of  patriotism 
or  of  the  divine  will,  or  you  are  unable  to  discover  any  motive  at  all, 
the  act  is  simpl}'  murder,  and  it  is  your  dut}-  to  find  him  guilty. 

Now,  gentlemen,  retire  to  your  rooms  and  consider  this  matter,  and 
make  due  deliberation  in  tlie  case  of  the  United  States  against 
Guiteau. 

At  this  point  (4  o'clock  and  35  minutes  v.  m.)  the  jury  retired  to 
deliberate. 

At  5  o'clock  and  40  minutes  the  jury,  accompanied  by  the  mar- 
shal and  bailiffs,  returned  to  the  box  and  were  called,  all  answering  to 
their  names,  as  follows :  — 

John  P.  Hamlin,  Frederick  W.  Brandenburg,  Henry  J.  Bright, 
Charles  T.  Stewart,  Thomas  H.  Langley,  Michael  Slieehan,  Samuel  F. 
Hobbs,  George  W.  Gates,  Ralph  Wormley,  William  H.  Brawner, 
Thomas  Heinline,  and  Joseph  Prather. 

The  Clerk.  Gentlemen  of  the  jury,  have  you  agreed  upon  a  verdict? 

Mr.  Hamlin  (the  foreman).  We  have. 

The  Clerk.  Wliatsayyou?     Is  the  defendant  guilty  or  not  guilty? 

Mr.  Ilamthi  (the  foreman).  Guilty  as  indicted,  sir. 

[Great  applause,  with  cries  of  "  Silence?  "  from  the  bailiffs.] 


HTATK  I'.   OUT 


18l> 


3  only  evl- 
r  himself, 
ver  to  the 

n  involved 


3  commis- 
J  of  mind, 
capable  of 
,  —  as  for 
iglity  had 
was  inca- 
s  not  in  a 
ssion,  and 
md  if  you 
ribed,  but 
is  act  was 
ined,  and 
al  vindic- 
rl  poHtical 
)atriotism 
ive  at  all, 

itter,  and 
against 

etired  to 

the  mar- 
veling to 

Bright, 
arauel  F. 
Jrawner, 

verdict  ? 

:  guilty? 


lUManu  Delusion  —  Burdun  of  Proof. 


TiiK  CocuT.  Gentlemen  of  the  .jury,  I  onnnot  express  too  much  thanks 
to  you,  l)()tli  in  my  own  name  and  in  the  name  of  the  public,  for  tlic 
diligence  and  fidelity  with  which  you  have  discharged  your  duties  ;  for 
the  patience  with  whidi  you  have  listened  to  this  long  mass  of  testi- 
mony, and  the  lengthy  discussion  by  counsel ;  and  for  the  patience  witli 
which  you  have  bf)rne  with  the  privations  and  inconveniences  incident 
to  this  trial.  I  am  sure  that  you  will  take  home  with  you  the  approval 
of  your  own  consciences  as  yon  will  have  that  of  your  fellow-citizens. 
With  thanks  and  good  >  'shes,  I  discharge  you  from  any  further  service 
at  this  term  of  the  court. 

Thereupon  (at  5  o'clock  and  o5  minutes  r.  m.)  tlie  court  adjourned. 


INSANE  DELUSION  —  INSTRUCTK^XS  —  INTOXICATION  —  COMMITTED 
INTENTIONALLY  DOES  NOT  CHANGE  GIUDE  OF  CRIME  —  BURDEN 
OF  PROOF. 

State  v.  Gut. 

[13  Minn.  343.] 
In  the  Supreme  Court  of  Minnesota,  July,  1868. 


Hon.  Thomas  Wilsox,  Chief  Justice. 
"    S.  J.  R.  McMu.i.AX, 
'*    Jonx  M.  Bkkuv, 


Associates. 


] 


1.  Insane  Delusion  —  Instructions.  —  The  court  Instructed  the  Jury:  "  If  the  defendant 

lias  .an  insane  delusion  upon  any  one  subject,  but  coniniits  crime  upon  some  other  mat- 
ter not  connected  with  that  particular  delusion,  ho  is  equally  guilty  as  if  he  had  no  de- 
lusion, and  was  perfectly  sane.    Held,  proper. 

2.  Intoxication  —  Committed   Intentionally  Does  not  Change  0~ade.  — Where  a 

crime  is  commiltcd  intentionally  as  a  matter  of  revenge,  the  intoxi'utiun  of  the  prisoner 
docs  not  change  its  grade. 

3.  Burden  of  Proof.  —  The  defence  of  insanity  must  be  made  out  to  the  satisfaction  of  the 

court. 

The  defendant  was  indicted,  tried,  and  convicted  of  the  murder  of 
Charles  Campbell.     He  appealed  to  this  court. 
Atiudter  &  Flandrmi  for  appellant. 
F.  R.  E.  Cornell.  Attorney-General,  for  the  State. 
Wilson,  C.  J. 

(Omitting  rulings  on  other  matters.) 
The  third  charge  is:  "If  the  defendant  has  an  insane  delusion  upon 


190 


THE    LEGAL   TEST   OF   INSANITY. 


Stato  V.  Out. 


any  one  subject,  but  commits  crime  in  some  other  matter  not  connected 
with  thiit  piirticuhir  delusion,  he  is  cMjuuUy  as  <iuilty  us  if  he  had  no  in- 
siine  delusion  and  was  perfectly  sane."  There  is  no  error  in  this  of 
which  the  defendant  can  complain.     If  such  a  state  of  mind  sup- 

jjosed  by  tiie  court  may  possibly  exist,  the  charge  is  right;  u  .wt,  the 
char<?c  did  not  prejudice  the  defendant. 

The  fourth  charge  asked,  and  the  comments  thereon,  are  in  these 
words:  "That  the  defendant  is  not  eutiiled  to  an  acfpiittal  on  tiu' 
ground  of  insanity,  if,  at  the  time  of  the  alK'jjcd  offence,  he  had  capa- 
city sufllcient  to  enable  him  to  distinjjfuisli  l)etween  ri;xht  and  wrong  as 
to  the  particular  acts  charged,  and  understood  the  nature  and  conse- 
quences of  his  acts,  and  had  mental  power  sudlcient  to  apply  that 
knowledge  to  his  own  case."  The  court,  in  connnenting  to  the  jury 
upon  the  meaning  and  application  of  this  rule,  said  to  them :  "That 
whether  tiic  defendant,  Gut,  at  tiie  time  of  intlicting  the  blows  upon  the 
body  of  the  deceast'd,  knew  that  the  natural  or  necessary  consequences 
of  his  acts  were  to  produce  the  death  of  the  deceased,  might  1  *aken 
into  consideration  by  them  in  determining  whether  he  knew  (  der- 

stood  the  nature  and  consequences  of  his  acts."  The  charge  »,.  .  cor- 
rect.i  The  comments  were  not  erroneous.  The  fact  that  the  defendant 
knew  at  the  time  of  inflicting  the  l)lows  upon  the  deceased,  that  the 
natural  and  necessary  consequences  of  his  acts  were  to  produce  death, 
did  not  prove  his  sanity,  but,  we  think,  it  was  evidence,  though  very 
weak,  to  be  considered  by  the  jury  in  determining  whether  he  knew  the 
nature  and  consequences  of  his  act. 

The  fifth  charge  was  in  these  words:  '"That  to  reduce  the  crime  of 
killing  a  human  being  from  murder  in  the  first  degree  to  manslaujihter, 
the  provocation  must  be  such  as  to  excite  a  man  of  ordinarily  cool,  can- 
did, and  reasonable  disposition  to  the  heat  of  passion."  Whether  this 
is  right  or  wrong  we  do  not  consider,  for  there  is  notliing  in  the  case  to 
show  provocation  of  any  kind.  If  there  was  no  provocation,  this  is  a 
mere  abstract  proposition  that  cannot  possibly  have  prejudiced  the  de- 
fendant; if  there  was,  it  was  for  the  defendant  to  show  it;  error  will 
not  be  presumed.  The  exception  to  the  sixth  charge  is  abandoned,  and 
any  questions  involved  in  the  seventh  have  been  before  discussed. 

The  eighth  charge  is  in  the  following  language:  "  If  the  jury  find 
from  the  evidence  that  the  defendant,  at  the  tiine  of  the  killing  of  Camp- 
bell, was  so  drunk  from  the  use  of  intoxicating  liquors,  not  drunk  with 
any  view  to  the  commission  of  said  crime,  as  not  to  know  what  he  was 


I 


\ 


dl 
d[ 

ti 

el 
t| 
tl| 
ti 


>  State  V.  Shippey,  10  Minn.  2-23. 


STATK  '■.  (a  T 


lit  I 


Intoxicat. 


(loin<2f,  llii>  juiv  ('ftiinot  rij?litfiilly  <'onviot  liiin  of  the  cliurj^c  in  tin-  iii- 
dictnu'iit."     IJiit  Ui  in()flili(:itii)ii  or  limitation  of  tlu' forcfroinrr  eli!iri;f 
tlir  court  instnicU'd  tlie  Juiy,  "  Tliiil  wlu'U  the  net  of  killiim  is  iiiiC(iuivo- 
va\  iind  iiii|»i()V()lvO(l,  tlio  fiict  that   it  was  coiiiniitttMl  wliilc  the  periK'tni- 
tor  W!VH  int()xit!iitiM|,  cannot  he  ivlh)\ve(l  to  affect   the  li'i^al  ciiaracter  of 
tlie  crime.     But  where  the  cii  v'umstances  aic  sucii  as  to  raise  tiie  (|neH- 
tion  wlicther  the  act  was  the  result  of  (lesi;j;n,  or  the  impulse  of  suthlcn 
passion,  the  intoxication  of  t'l.  accused  is  u  pi'oper  subject  of  considera- 
tion.    Tliat  (h'unkeiUH'SS  may  lus  talvcn  into  consicU'ration  in  cases  where 
what  the  hivv  deems  sutflcient  provocation  has  been  giv»'n,  because  the 
(|uesti()n  is  in  such  cast's  wiietlier  tlie  fatal  act  is  to  be  attributed  to  the 
l)assion  of  anj^er  excited  by  the  previous  piovocatinn,  and  that  passion 
is  more  easily  excitable  in  a  jjcrson  when  in  a  state  of  intoxication,  than 
when  he  is  sober.     With  rcirard  to  the  intention,  drunkt-mu'ss  may  per- 
haps be  adverted  to  according  to  the  nature  of  the  instrument  used- 
If  a  man  use  a  stick,  you  would  not  infci  ;i  malicious  intent  so  stron;j;ly 
a_ij;ainst  him  if  drunk  when  he  made  an  intemperate   use  of  it,  as  you 
would  if  had  used  a  different  kind  of  weapon.     But  where  a  dangerous 
weapon  is   used,  which  if  used  must  produce  grievous  bodily  harm, 
drunkenness  can  have  no  effect  on  the  consideration  of  the  malicious  in- 
tent.    That  he  who  is  in  a  state  of  voluntary  intoxication  should  be 
subject  to  the  same  rule  of  conduct,  and  the  same  legal  inferences  as 
the  sober  man  ;  but  that  where  a  provocation  has  been  received  which' 
if  acted  upon  instantly,  would  mitigate  the  offence  of  a  sober  man,  and 
the  question  in  the  case  of  a  drunken  man  is  whether  the  provocation 
was  in  truth  acted  upon,  evidence  of  intoxication  may  be  considered  in 
deciding  that  question.     But  that  in  this  case  there  is  no  proof  of  such 
a  provocation." 

The  charge  requested  was  correct. '  If  some  of  the  modifications  or 
limitations  are  inconsistent  with  it,  this,  according  to  our  view  of  the 
case,  is  not  a  ground  for  reversal  or  new  trial.  Our  statute  declares  the 
killing  of  a  human  being  "  when  per[)etrated  with  a  premeditated  design 
to  effect  the  death  of  the  person  killed,  or  any  human  being,"  murder  in 
the  first  degree  ;  and  where  this  design  is,  in  fact,  wanting,  we  hold  that 
the  crime  is  not  murder  of  that  degree.  A  party  on  trial  for  murder  is  n(it 
to  be  punished  for  intoxication.  If  he  did  not  intend  to  do  the  act  con- 
stituting the  crime,  he  is  not  to  be  fonnd  guilty  of  such  intent,  however 
illegally  or  immorally  he  may  otherwise  have  acted.  It  is  recited  in  the 
bill  of  exceptions  "  that  the  said  John  Gut  had  been  drinking,  and  was 
to  some  extent  intoxicated  on  the  25th  day  of  December,  186G,  when 


1  state  V.  Gurvey,  11  Minn.  154. 


192 


THE    LEGAL   TEST   OF    INSANITY. 


State  V.  Gut. 


said  Camiibell  was  killed."  And  also  that  when  he  was  reproved  for 
the  stabbing  of  the  deceased,  he  replied:  "These  half  breeds  killed 
my  best  friend,  Jolni  Spinner,  and  I  will  kill  them ;  let  me  alone  or  I 
will  stab  you."  It  is  with  great  hesitancy  that  we  say  in  a  criminal 
prosecution,  and  especially  in  a  capital  case,  that  any  error  did  not  pre- 
judice the  defendant ;  and  where  there  is  the  least  doubt  as  to  its  effect, 
we  feel  bound  to  give  him  the  benefit  of  the  doubt.  But  it  appearing 
that  the  defendant  was  intentionally  killed,  or  participated  in  the  killing 
of  the  deceased  as  a  matter  of  revenge,  it  is  immaterial  whether  he  was 
intoxicated  or  not.  The  crime  would  be  the  same  in  either  case,  there 
being  criminal  intent  amounting  to  a  premeditated  design,  and  a  crimi- 
nal act.  Besides,  it  does  not  appear  that  the  defendant  was,  at  the 
time  the  crime  was  committed,  in  such  a  state  of  intoxitation  as  to  ren- 
der him  incapable  of  forming  a  premeditated  design.  Hence,  we 
conclude  that  the  error  in  the  charge,  if  there  is  error,  cannot  possibly 
have  prejudiced  the  defendant,  and  therefore,  that  it  is  not  ground  for 
reversal. 

The  charge  of  the  court  "that  insanity  was  a  defence,  and  must 
be  mad(>  out,  from  the  evidence,  to  the  satisfaction  of  the  court,  as 
any  other  defence,"   is  in  accordance  with  tiie  decision  m  BonfantVs 

The  charge  of  the  court,  and  its  refusals  to  charge  on  this  point,  were 
therefore,  we  think,  unobjectionable.  The  views  which  we  have  above 
expressed  cover  all  the  questions  raised  by  the  defendant.  We  have 
(liscovercvl  no  substantial  error.  The  theory  and  teachings  of  our  law,  as 
well  as  the  dictates  of  humanity,  require  the  courts  to  give  to  a  person 
accused  of  a  crime  the  benefit  of  ecei'ij  doubt  that  may  exist,  either  as 
to  the  law  or  facts.  But  further  than  this,  justice  forbids,  and  mercy 
does  not  require  them  to  go.  Where  there  has  l)een  any  error  or  irregu- 
larity that  could  possibly  prejudice  the  defendant,  it  is  ground  for  a 
reversal.  But  an  error  which  is  not  a  violation  of  any  positive  rule  of 
law,  and  which  could  not  possibly  prejudice  him,  cannot,  according  to 
any  rational  rule  render  invalid  the  proceeding?.  The  rule  on  this  sub- 
ject is  clearly  expressed  in  sect.  11,  chap.  108,  Gen.  Stats.,  as  follows: 
"  No  indictment  is  insulficient,  nor  can  the  trial,  judgment,  or  other 
proceedings  thereon,  be  affected,  by  reason  of  any  defect  or  imperfec- 
tion in  the  matter  of  form,  which  does  not  tend  to  prejudice  the  sub- 
stantial rights  of  the  defendant,  upon  its  merits." 

Judgment  affirmed. 

'  2  Kinn.  131. 


KOBKIITS    V.  STATE. 


IIKJ 


lusiiue  Delusion  —  Test  of  Insanity. 


med. 


TEST  — INSANK  DELUSION. 

Roberts  v.  State. 

[3  Ga.  310.] 
lu  the  Supreme  Court  of  Georgia,  August  Term,  1847. 


Hon.  JosKPii  Hexry  Lumpkin, 
"     IIiKAM  Waunkr, 
"     El'ukxils  a.  Nisijkt. 


.  Judges. 


Particular  Bieht  and  Wronfi:  Test  — Delusion.  —  It  a  man  has  not  reason  sufficient 
to  enable  him  to  distinguisli  between  right  aii<l  wrong  in  relation  to  tlie  particular  act, 
he  is  not  tiunishable.  Nor  is  ne  when;,  in  conseiiuence  of  some  delusion,  the  will  is 
overmastered  and  there  is  no  criminal  intent. 

Imlictment  for  assault  with  intent  to  murder  one  .John  Knight.  The 
defence  was  insanity.  The  prisoner  was  convicted  and  sentenced  to  four 
years  in  the  penctentiaiy. 

T.  P.  Stubbs,  for  the  prisoner;  McCune,  Solicitor  General,  for  tht' 
State. 

NisBET,  J.,  delivered  the  opinion  of  the  court. 

[Omitting  a  ruling  on  another  i)oint.] 

The  record  furnishes  no  evidence  to  rebut  the  presumption  of  malice, 
except  what  relates  to  the  plea  of  insanity  ;  it  discloses  no  provocation, 
but  on  the  contrary,  the  circumstances  attending  the  killing,  show  in 
the  language  of  the  statute,  an  abandoned  and  malignant  heart.  The 
plea  of  insanitj'  set  up  in  this  case,  does  not  affect  the  (lueslion  we  are 
now  considering.  We  consider  it  irrespective  of  that  plea  for  the  rea- 
son, that  if  the  prisoner  was  not  sane,  he  is  wholly  irresponsible  and 
guiltless,  not  only  of  murder  but  of  manslaughter.  We  have  no  fault 
to  find  with  the  decision  of  Judge  Floyd,  upon  this  ground  for  a  new 
trial,  taken  in  the  rule.  The  fourth  and  fifth  grounds  ui)<)n  which 
the  plaintiff  in  error  relied  in  his  rule  for  a  new  trial,  and  upon 
which  he  now  relies  before  this  court,  relate  to  insanity,  and  may  be 
united. 

The  court  below  charged  the  jury  as  follows:  "A  person,  therefore^ 
in  order  to  be  punishable  by  law,  or  in  order  that  his  punishment  by 
law  may  operate  as  an  example  to  deter  others  from  committing  crimi- 
nal acts  under  like  circumstances,  must  have  sufficient  memory,  intelli- 
gence, reason,  and  will  to  enable  him  to  distinguish  between  right  and 
wrong,  in  regard  to  the  particular  act  abt)ut  to  be  done,  to  know  and 
la 


11, 


in4 


THE   LKOAL    TEST    OF    INsJAMTY. 


Roberts  v.  State. 


understand  that  it  will  be  wrong,  and  that  he  will  deserve  punishment 
by  committing  it. 

"  In  order  to  constitute  a  crime,  a  man  must  liave  intelligence  and 
capacity  enough  to  have  a  criminal  intent  and  jmrpose  ;  and  if  his  rea- 
son and  mental  powers  are  either  so  deficient,  that  he  has  no  will,  no 
conscience,  or  contoUing  mental  power,  or  if  thiougl  the  overwhelming 
power  of  mental  disease,  his  intellectual  power  is  forihe  time  obliterated, 
he  is  not  a  responsible  moral  agent,  and  is  not  punishable  for  criminal 
acts.  If,  therefore,  you  believe  from  the  evidence,  that  nt  the  timecf 
committing  the  ac,  the  defendant  had  memory  and  intelligence,  even  a 
gUmmerhig  of  re<(soii,  auffic'xent  to  enable  him  to  distinguish  between 
right  and  wrong,  in  regard  to  the  particidar  act  about  to  be  committed,  to 
know  and  understand  tliat  it  would  be  wrong,  and  that  he  would  deserve 
punishment  by  committing  it,  you  will  find  him  guilty ;  otherwise  you 
will  find  him  not  guilty." 

The  plaintiff  excepts  to  the  general  proposition  laid  down  by  Judge 
Floyd,  that  if  a  man  has  sufficient  memory,  intelligence,  reason,  and 
and  will,  to  distinguish  between  right  and  wrong  as  regards  the  particu- 
lar act  about  to  be  done,  he  is  liable  to  be  punished.  And  also  to  the 
more  specific  proposition  that  a  man  who  has  even  a  glimmering  of  rea- 
son sufficient  to  enable  him  to  distinguish  between  right  and  wrong  in 
regard  to  the  particular  act  about  to  be  committed;  to  know  and  under- 
stand that  it  would  be  wrong,  ai.d  that  he  would  deserve  pimishmcnt 
for  committing  it,  is  liable  to  be  punished.  I  do  not  perceive  that  there 
is  much  difference  between  the  two  —  I  do  not  perceive,  in  fact,  any 
difference  between  a  man's  having  memory,  intelligence,  reason  and 
will  enough  to  distinguish  between  right  and  wrong  in  regard  to  a  par- 
ticular act,  and  a  glimmering  of  reason  sufficient  for  the  same  purpose. 
It  would  certainly  be  wrong  to  hold  every  poor  idiot,  lunatic  or  insane 
person  responsible,  who  has  even  a  glimmering  of  reason.  That  propo- 
sition would  be  inhuman,  and  is  unsustained  by  authority ;  for  almost 
all  these  stricken  creatures  have  some  faint  glimmering  of  reason,  but  it 
may  l)e  very  different,  if  the  glimmering  light  of  the  mind  is  sufficient 
to  enable  them  to  distinguish  between  the  right  and  the  wrong  of  the 
net  about  to  be  committed.  For  the  puri)ose  of  this  review  I  shall  con- 
sider Judge  Floyd  as  ruling  that  if  a  man  has  reason  sufficient  to  distin- 
guish between  right  and  wrong  in  relation  to  a  particular  act  about  to 
be  committed,  he  is  criminally  responsible.  lie  varies  the  same  idea 
soraewliat  in  the  forms  of  expression  used,  no  doubt  for  the  puri)ose  oi 
being  fully  understood  by  the  jury.     But  that  is,  I  think,  the  rule  which 


i 


lushment 

Mice  and 
'  his  rca- 
)  will,  no 
ivhelming 
literated, 
•  criminal 
e  time  cf 
;e,  eren  a 
between 
iiiitted,  to 
d  deserve 
•wise  you 

by  Judge 
ason,  and 
e  parti  cu- 
ilso  to  the 
ig  of  rea- 
wrong  in 
lid  under- 
nishmcnt 
Ithat  there 
fact,  any 
lason  and 
to  a  par- 
purpose, 
or  insane 
at  propo- 
[or  almost 
n,  but  it 
sufficient 
Ing  of  the 
Lhall  eoii- 
Itodistin- 
I  about  to 
lame  idea 
kirpose  ot 
lie  which 


UOUKRTS    V.  STATE. 


195 


An  Insane  Man  Cannot  be  Punished. 


he  intended  to  lay  down  ;  and  the  question  occurs,  is  that  the  true  rule? 
We  think  that  in  this  case  it  is. 

I  shall  not  attempt  a  review  at  large  of  the  cases  and  learning  to  be 
found  in  the  books  upon  the  subject  of  insanity.     I  shall  undertake 
only  a  brief  statement  of  the  general  principles,  which  are  at  this  day 
recognized,  and  particularly  with  a  view  to  sustain  the  position  taken  in 
this  case  by  the  presiding  judge.     Any  one  conversant  with  ihe  case  can- 
not have  failed  to  see,  that  this  has  l)een  for  courts  and  medical  men 
and  legal  commentators,  adiflicult  and  perplexing  subject.     Whether  ^ 
man  is  sane  or  not,  whether  partially  or  totally  deranged,  and  if  only  in 
part  deranged,  where  accountability  to  the  laws  shall  begin,  and  where 
end,  are  questions  of  great  and  embarrassing  subtlety.     The  laws  of 
the  sane  mind  are  but  little  understood  ;  much  less  are  the  laws,  if  indeed 
such  phraseology  is  predicable  of  it  of  the  unsound  mind  understood. 
We  can  judge  of  the  one,  by  external  developments,  and  bj'^  our  own 
consciousness;  of  the  other,  only  by  external  indicia.     There  are  few 
men  so  balanced  in  intellect  as  not  at  Gome  times  and  upon  some  sub- 
jects to  approximate  towards  derangement.     All   men   almost,   have 
some  train  of  thought  in  which  the  mind  delights  to  run  at  a  compara- 
tive abandonment  of  the  ordinary  routine  of  thought.     Intellectual 
enthusiasm   not  unfrequently   approaches  the   line    of  insanity.     The 
numerous  cases  of  mania  or  delusion  which  leave  the  mind  sound  in 
general,  but  as  to  certain  things,  shattered  or  wholly  obliterated  have 
increased  the  (lifliculty  of  any  specific  general  rule  as  to  the  responsi- 
bility of  those  who  are  generally  classed  as  insane.     A  crazy  or  partiall}'^ 
deranged  person,  is  a  mystery ;  such  a  person  is  so  by  the  visitation  of 
God.     The  subject  of  insanity  is  not  resiionsible  —  humanity,  reason, 
the  law  so  adjudges.     To  punish  an  insane  man,  would  be  to  rebuke 
Providence.     Hence,   in  all  definitions  of  mui'der,   of  which    I   have 
knowledge,  the  requirement  is  found,  that  the  slayer  must  be  of  sound 
mind.     Our  own  statutory  definition  requires  him  to  be  "a  person  of 
sound  memory  a,nd  discretion."     Accountability  for  crime  presupposes 
a  criruinai  intent,  and  that  requires  a  power  of  reasoning  upon  the  chai- 
acter  and  consequences  of  the  act ;  a  will  subject  to  control.     For  this 
reason  it  is,  that  a   homicide  committed  under  the  influence  of  uncon- 
trollable passion  is  not  murder.     The  reason  is  dethroned,  the  will  is  not 
subject  to  control,  and  in  tenderness  to  human  infirmity,  he  is  consid- 
ered as  not  having  a  malicious,  murderous  intent.     The  difficulty  is  to 
determine  who  is  "  a  person  of  sound  memory  and  discretion."  who  is 
incapable  of  a  criminal  intent,  who  is  incapable  of  reasoning  upon  the 
character  and  consequences  of  the  act,  and  who  is  without  control  over 


196 


THK    LKGAL   TEST   OF    INSANITY. 


Roberts  r.  State. 


his  will.  This  is  the  work,  that  the  labor.  Men  are,  upon  proof  of  the 
i;riminal  act,  presumed  to  be  responsible,  and,  therefore,  the  burden  of 
provin<?  irresponsibility  devolves  upon  the  defendant. 

One  does  not  fail  to  perceive,  also,  in  looking  into  this  subject,  that 
the  rules  now  recognized  as  governing  pleas  of  insanity  arc  different 
from  what  they  were  in  the  time  of  Lord  Coke,  and  indeed  long  subse- 
(juent  to  his  day.  The  improvements  in  the  science  of  medical  juris- 
prudence, a  more  enlarged  benevolence,  and  a  clearer  sense  of  Christian 
obligation,  have  relaxed  the  cruel  severity  of  the  earlier  doctrines.  The 
plea  of  insanity  is  now,  as  it  ought  to  be,  as  much  favored  as  any  other 
plea  resting  upon  the  ground  of  reason  and  justice.  Courts  are  not  now 
afraid  to  trust  '.he  juries  with  the  investigation  of  questions  of  insanity  ; 
nor  are  all  cases  now,  as  they  once  were,  subjected  to  the  application  of 
one  rule,  unjust  because  of  its  sweeping  generality.  There  was  a  time 
when  the  insane  were  looked  upon  as  victims  of  Divine  vengeance,  and, 
therefore  to  be  cast  out  of  the  protection  of  human  laws,  and  beyond 
the  pale  of  human  sympathies.  Not  so  now.  The  insane  hospitals  of 
our  land,  founded  by  provisions  of  public  law,  and  by  private  charity, 
prove  that  the  insane  are  the  peculiar  care  of  the  State,  as  v/ell  as  of 
private  benevolence. 

As  late  as  1723,  it  was  held  in  England  that  for  a  man  to  be  insane, 
he  must  have  no  more  reason  than  a  brute,  an  infant  or  wild  beast. 

It  seems  then  to  have  been  believed  tliat  for  derangement  to  protect 
its  subject  from  criminal  responsibility,  it  must  be  total  in  its  character ; 
either  manifesting  itself  in  wild,  ungovernable,  and  incongruous  actions, 
or  in  stupid  and  passive  imbecility.  It  seems  not  to  have  been  then  un- 
derstood that  men  might  ordinarily  act  sensibly  and  yet  be  insane;  and 
reason  acutely  or  learnedly  upon  most  subjects,  whilst  they  were  upon 
some  one  or  more  totally  deranged.  This  inhuman  rule  cut  off  from 
the  benefits  of  this  plea,  all  the  partially  insane,  and  admitted  to  its 
privileges  only  the  raving  maniac  or  the  drivelling  idiot. 

The  rule  which  I  apprehend  is  now  more  universal  than  any  other,  is 
in  substance  the  one  given  in  chai'ge  by  Judge  Floyd  to  the  jury.  Mr. 
Chitty  says:  "In  criminal  cases  the  question  is  whether  at  the  time 
the  act  was  committed,  the  person  was  incapable  of  judging  between 
light  and  wrong  and  did  not  then  know  that  the  act  was  an  offence 
against  the  law  of  God  and  nature."  ' 

^Ir.  Shelf ord  thus  states  the  rule:  "  If  a  person,  lialile  to  partial  in- 
sanity which  only  relates  to  particular  subjects  or  notions,  upon  which 


'  C'hiUy'8  Med.  Juri8p.,345 


TKST    OF    INSANITY 


19i 


Rogers'  and  HailfleUlVs  Case>i. 


he  talks  and  acts  like  a  madman,  still  has  as  ranch  reason  as  enables 
him  to  distinguish  between  rigiit  and  wrong,  he  will  be  liable  to  that 
punishment  which  the  law  attaches  to  his  crime."  ^ 

In  the  case  of  Rogers,  the  Supreme  Judicial  Court  of  Massachusetts, 
lay   down  the  rule  in  the  following  words:  "  A  person,  therefore,  in 
order  to  be  punished  by  law  or  in  order  that  his  punishment  by  law 
may  operate  as  an  example  to  deter  others  from  committing  criminal 
acts  under  lilvc  circumstances,  must  have  sutTlcicnt  memory,  intellijience, 
reason,  and  will",  to  enable  him  to  distinguish  between  right  and  wrong 
in  regard  to  the  particular  act  about  to  be  done,  to  know  and  under- 
stand that  it  will  be  wrong,  and  that  he  will  deserve  punishment  by  com- 
mitting it."     This  rule  does  not  require  total  insanity  like  the   one 
previousl}'  referred  to,  —  derangement  as  to  all  subjecis  and  in  all  ac- 
tions, —  but  if  the  prisoner  is  perfectly  sane  as  to  ail  o;h  r  things,  and 
wants,  as  to  the  act  about  to  be  committed,  reason  enough  to  distingnisli 
between  the  right  and  wrong  of  that  act — if  he  does  not  know  and 
understand  that  that  act  is  wrong,  and  that  he  will  deserve  punisliment 
for  committing  it,  he  is  irresponsible.     So,  also,  on  the  other  hand,  ac- 
cording to  this  rule  the  person  ma}'  be  deranged  as  to  other  things,  yet 
if  he  has  sufficient  reason  to  distinguish  as  to  the  right  and  wrong  of 
the  particular  act  about  to  be  committed,  if  he  knows  and  understands 
that  for  committing  that  act,  he  will  be  liable  to  be  punished,  he  is  a 
responsible  agent  and  ought  to  be  convicted.     Such  is  tlie  rule  adopted 
by  the  court  below  ;  it  is  sustained  by  great  weight  of  authority,  and  as 
I  shall  show,  is  tlie  only  rule  Avhich  was  applical)le  to  the  facts  of  this 
case.     But  even  this  rule  has  undergone  some  modification.     There  are 
some  exceptions  to  it;  one,  certainly,  wliich  was  first  established  in  the 
leading   case  of    King  v.   Hadji 'Id.     The  great  speech   of  Mr.    Ers- 
kine   in   defence  of   Iladfield,   has  shed   new   light  upon  the   law   of 
insanity.     So  conclusive  was  that  celebrated  argument,  that  it  is  now 
looked  upon  by  the  profession  as  authority.     In  the  records  of  forensic 
eloquence,  ancient    and  modern,  nothing  is  to  be  found   surpassing 
Erskine's  defence    of   Hadfield,   for    condensation,    perspicuity,  and 
strength  of  reasoning,  as  well  as  for  beauty  of  illustration  and  purity 
of  style.     In  that  case  he  assumed  tlie  position  that  a  man  might  have 
reason  sufficient  to  distinguish  between  the  right  and  wrong  of  tlie  act 
about  to  be  committed  and  yet  be  irresponsible ;  that  the  mind  might 


'Shelf,  on  Lunacy,  4  68;  Lord  Ferrers' 
Case,  l'.»  How.  St.  Tr.,  !>47  ;  Arnold's  Case,  16 
Id.  764  i  I'arkcr's  Case,  1 ;  Collins  on  Lunacy, 


477;  Bollinghams's  Case,  lb.  ft36;  Offord'a 
Case,  5  C  &  l*.  16S;  Uogors'  Case,  Abner 
Uogers'  Trial,  275. 


198 


THE    LEGAL   TEST   OF    INSANITY. 


Roberts  v.  State. 


be  cognizant  of  the  distinction  between  right  and  wrong,  as  regards  the 
act,  and  yet,  by  reason  of  some  dehision,  overmastering  the  will,  there 
might  be  no  criminal  intent.     To  apply  this  proposition,  it  was  admitted 
by  Mr.  Erskine  that  the  act  itself  must  be  connected  with  the  peculiar 
delusion  under  which  the  prisoner  labors.     This  doctrine  can  be  best 
understood  by  illustration,  and  it  is  illustrated  by  Iladfield's  case.     He 
had  been  a  soldier  in  the  British  armies,  and  had  received  several  severe 
wounds,  one  of  which,  on  the  head,  it  was  thought,  had  injured  the 
brain;  and  caused  the  derangement  under  which  he  suffered.     He  imag- 
ined that  he  had  constant  intercourse  with»the  Almighty,  that  the  world 
was  coming  to  a  conclusion,  and  like  our  blessed  Savior,  he  was  to  sac- 
rifice himself  for   its  salvation.     Unwilling  to  commit  suicide,  it  was 
argued  by  Mr.  Erskine,  he  sought  to  do  an  act  which  woidd  forfeit  his 
life  to  the  law,«and  thus  bring  about  the  sacrifice  which  in  his  morbid 
imagination  he  held  necessary  to  the  salvation  of  tbe  world.     Under  the 
influence  of  this  delusion,  he  shot  at  the  king  in  the  theatre.     Now  in 
this  case,  it  was  not  pretended  that  Hadfield  was  a  raving  maniac,  or 
an  imbecile  idiot ;  nor  was  it  contended  that  he  was  incapable  of  know- 
ing that  shooting  a  pistol  at  the  king,  would  or  might  kill  him,  or  that 
if  he  siiould  kill  the  king  that  he  would  deserve  death  for  the  act  (for 
that  was  really  what  he  desired) ;  or  that  he  was  incapable  of  distin- 
guishing between  the  right  and  wrong  of  the  act ;  but  it  was  contended 
that  the  delusion  under  which  he  labored  had  so  shattered  his  intellect 
as  to  control  his  will,  and  impel  him  resistlessly  to  the  commission  of  the 
act,  and  therefore  there  was  no  criminal  motive,  no  wicked  or  mischiev- 
ous intent,  and  if  these  were  wanting,  he  was  irresponsible.     To  use  the 
language  of  Mr.  Erskine,  "  Reason  is  not  driven  from  her  seat,  but  dis- 
traction sits  down  upon  it,  along  with  her,  holds  her  trembling  upon  it, 
and  frightens  her  from  propriety."     Hadfield  was  acquitted,  and  since 
that  day,  the  exception  which  his  case  established  has  been  recognized.' 
Thus  far  with  safety  we  may  assert  that  certain  principles  have  been 
established  ;  yet  it  is  true  that  these  rules  do  nol.  govern  all  cases.     It 
is  conceded  by  the  courts  in  England,  practically  if  not  in  terms,  that  no 
rules  can  be  so  specific  as  to  embrace  the  infinite  variety  of  forms  in 
which  insanity  or  derangement  may  show  itself ;  and  that  each  case 
must  depend  very  much  upon  the  circumstances,  facts  and  developments 
which  attend  it.     Thus,  Lord  Hale  says :  "  It  is  very  difficult  to  define 
the  invisible  line  that  divides  perfect  and  partial  insanity.     But  it  must 


>  See  £rskine's  speech  in  appendix  to  Cooper's  Med.  Jur.,  27  llow.  St.  Tr.  1281. 


KOBERT8    V.  STATE. 


199 


Test  of  Insanity. 


or 


rest  upon  circumstances,  duly  to  be  weighed  and  considered  by  tlie 
judge  and  jury,  lest  on  the  one  side  there  be  a  kind  of  inhumanity 
towards  the  defect  of  human  nature,  or  on  the  other,  too  great  indul- 
gence be  given  to  great  crimes."  So  Taylor  declares:  "  There  are  no 
certain  legal  or  medical  rules  whereby  homicidal  mania  may  be  detected. 
Each  case  may  be  determined  by  the  circumstances  which  attend  it."  ' 
In  the  opinion  which  C.  J.  Denman,  gave  before  the  House  of  Lords  in 
1843,  although  adhering  to  the  old  rules  he  says:  "  It  is  difficult  to  lay 
down  any  abstract  rule  on  the  subject  applicable  to  all  cases,  and  eacli 
case  must  be  decided,  in  great  measures  upon  the  facts  and  circumstances 
peculiar  to  it,  under  the  discretion  of  the  court. 

In  the  case  at  this  bar,  the  evidence  shows  no  particular  delusion  to 
control  the  will  "  sitting  upon  reason's  seat  and  holding  her  trembling, 
and  frightening  her  from  her  propriety."  It  does  not  come  within  the 
exception  to  the  rule  laid  down  l)y  Judge  Floyd,  which  was  established 
in  Iladfield's  case.  This  case  is  embraced  within  that  rule,  and  we 
think  the  court  below  correctly  gave  that  rule  in  chai-ge  to  the  jury.  If 
there  was  partial  insanity  in  this  case,  about  which  we  express  no  opin- 
ion, it  was  the  effect  of  melancholy,  growing  out  of  disappointed  love  ; 
there  was  no  proof  of  raving  madness  nor  of  peculiar  mania.  The 
prisoner  had  addressed  Mrs.  Julian  and  been  rejected ;  afterwards  he 
talked  occasionally  incoherently,  looked  vacant  in  the  face,  sat  up  late 
at  night,  and  wrote  some  silly  letters,  and  all  attended  with  a  habit  of 
intemperance.  At  the  time  he  committed  the  assault,  and  previously,  he 
was  violent,  rude  towards  Mrs.  Julian  and  her  mother,  and  indecent  in 
his  conversation.  He  seems  to  have  been  on  that  day  the  very  person 
to  whom  Mr.  Erskine  denies  the  protection  of  insanity,  one  "  who 
exhibits  only  violent  passions  and  malignant  resentments,  acting  upon 
real  circumstances,  who  is  impelled  to  evil  from  no  morbid  delusion, 
but  who  proceeds  upon  the  ordinary  perceptions  of  the  mind." 

Let  the  judgment  of  the  court  below  be  affirmed. 


>  Taylor  Med.  Jurisp.  649.    See  also  Tt  c.  &  P,  168;  9  /d.625. 


200 


THE    LEGAL   TEST    OF    INSANITY. 


Noti'i 


NOTES. 

§  1.  Acts  of  an  Insane  Person  not  Punishable.  —  The  common  law  does  not 
pnnish  tlio  acts  of  an  insane  man.  "  In  all  jurisdictions  cvcrywiu'ro,  and  amom; 
all  i)eoi)le,  civilized  or  savaijc,  u  defect  of  reason  that  renders  one  unaccountable 
for  his  acts  is  viewed  with  connniseration,  and  the  subject  of  it  shielded  from 
even  the  least  reproach."  "It  is,"  as  said  in  a  Delaware  case,  "one  of 
tho.sc  visitations  of  the  Creator  Avhich  all  humanity  respects,  and  which  con- 
fers immunity  from  punishment  upon  him  who  is  so  unfortunate  as  to  be  the 
victim  of  it,  if  I  may  use  an  expression  of  seemluij  irreverence."  •  Reason  is  the 
basis  of  human  respousil)ility ;  whenever  it  does  not  exist  tlu;  party  is  not  respon- 
sible for  his  acts.  The  plea  of  insanity  avails  the  party  not  as  a  justilicatiou  or 
excuse,  but  because  he  is  not  responsible  at  all.  It  may  exist  from  .infancy, 
when  it  is  idiocy,  or  it  may  be  adventitious,  jjroceedinii  from  various  causes,  and 
may  be  permanent  or  temporary.'^  Admitting;  tliis  to  be  the  rule  of  the  common 
law,  the  courts  have  from  the  first  endeavored  to  discover  a  test  by  the  applica- 
tion of  which  to  a  particular  case,  a  jury  may  decide  whether  a  particular  person 
is  or  is  not  a  proper  sul)ject  of  punishment.  Various  tests  have  l)een  suggested, 
adopted,  and  discarded. 

§  2.  The  Child  Test.  —  The  first  test  which  was  proposed  for  the  solution  of 
this  problem  was  suggested  by  Lord  IIai.k.''  "  It  is  very  dilHcult,"  said  he,  "  to 
detine  tlie  indivisible  line  that  divides  perfect  and  partial  insanity;  but  it  must 
rest  upon  circumstances  duly  to  be  Aveigiied  and  considered  botli  by  the  judge 
and  jury,  lest  on  one  side  there  be  a  kind  of  inhumanity  towards  the  defects  of 
human  nature,  or  on  the  other  side  too  great  an  indulgence  given  to  great 
crimes;  the  l)est  measure  that  I  can  think  of  is  tins,  .fuch  a  person  as  laboring 
under  melanchulij  distempers  hath  yet  ordinarihj  as  great  understanding  as  ordi- 
nnrihj  a  child  of  fourteen  years  hath,  is  such  a  person  as  may  he  guilty  of  treason  or 
felony.''*  This  test,  as  we  shall  see,  comes  very  near  the  one  now  generally 
adopteil  by  the  courts. 


§  3.  The  Wild  Beast  Test.  —  But  in  the  next  important  trial  after  Lord  Halk 
wrote,  Mr.  Justice  Tn.vcY  laid  down  a  more  severe  test.  On  the  trial  of  Arnold,* 
in  17i'4,  for  sliooting  at  Lord  Onslow,  Mr.  Chief  Justice  Th.vcv  said  to  tlie  jury: 
"This  is  tlie  evidence  on  l)oth  sides.  Now,  I  liave  laiil  il  t)efore  you;  and  you 
must  consider  of  it;  and  the  shooting  my  Lord  Onslow,  whicli  is  the  fact  for 
wliich  tills  prisoner  is  indicted,  is  proved  Ijeyond  all  manner  of  contradiction;  but 
whether  this  shooting  was  malicious,  tiiat  depentls  upon  the  sanity  of  the  man. 
That  he  shot,  and  that  wilfully  is  proved;  but  whether  maliciously,  that  is  thf 
thing;  that  is  tlie  (picstion;  whether  this  man  hath  the  use  of  his  reason  and  his 
senses?  If  he  was  under  the  visitation  of  God  and  v.-ould  not  distinguish  be- 
tween good  and  e>il,  and  did  not  know  what  he  did,  tliougli  he  committed  tlie 
greatest  offence,  yet  he  could  not  be  guilty  of  any  offence  against  any  law  Avhat- 


'  Comcgys,  C.  J.,   in  State  r.    Brown,  1 
Hoii-st.  Cr.  Cas.  .5;i0  (1878). 

-  ISayard,  J.,  in  .State  v.  Dillahunt,  3  Harr. 


(Del.)  5:.l  (1840);  Cole's  Case,?  Abb.  Pr.  (N. 
S.)  ;V21  (ISf.s). 

a  1  Hale's  I'lean  of  the  Crown,  30. 

*  Arnold's  Case,  10  How.  St.  Tr.  764. 


THE    WILD    BEAST   TEST. 


201 


fir.  .Tiistico  Tracv  In  Arnold's  Cjisi- 


soever;  for  Ltuilt  arises  from  the  niiu<l,  and  the  wieked  will  and  intention  f  the 
man.  If  a  man  be  deprived  of  his  reason,  and  eonse(|uently  of  Ids  intention,  he 
cinnot  be  ijuilty;  and  if  that  be  the  ease,  thonich  he  had  aetually  killed  my  Lord 
Onslow,  he  is  exempted  from  punishment;  i)iinishment  is  intended  for  example 
and  to  deter  other  persons  from  wicked  designs;  l)ut  the  puidshment  of  a  mad- 
man, a  person  that  huth  no  desij?n,  can  have  no  example.  This  Is  one  side.  On 
the  other  side,  we  must  be  very  cautious;  it  is  not  every  frantic  and  idle  humor 
of  a  man  that  will  exempt  him  from  justice,  and  the  punishment  of  tlie  law. 
Wiien  a  man  is  <ruilty  of  a  iireat  offence,  It  must  be  very  plain  and  clear,  l)eforea 
man  is  allowed  such  an  exemi)tion;  therefore,  it  is  not  every  kind  of  frantic 
humor  or  somethins;  unaccountal)le  in  a  man's  actions  tliat  points  1dm  out  to  be 
such  a  madman  as  is  to  be  exempted  from  punishment;  it  mnut  he  a  man  that  is 
totaWj  deprived  of  hix  understandimj  and  memory,  and  doth  not  know  xohnt  he  is  do- 
ing, no  more  than  an  infant,  than  a  brute,  or  a  ii'ihl  beast,  such  a  one  is  never  tlu- 
object  of  punishment;  therefore,  I  must  leave  it  to  your  consideration,  whether 
the  condition  this  man  was  in,  as  it  is  repi-esented  to  you  on  one  side,  or  the 
other,  doth  show  a  man  who  knew  what  he  was  doin;;,  and  was  al)le  to  distiu- 
iiuish  whether  he  was  doim;  i^ood  or  evil,  ami  understood  wiiat  he  did;  and  it  is 
to  be  ol)served,  they  admit  he  was  a  lunatic,  and  not  an  idiot.  A  man  that  is  an 
idiot,  that  is  l)()rn  so,  never  recovers,  l)Ut  a  lunatic  may,  and  hath  his  intervals; 
and  they  admit  he  was  a  luntitic.  You  are  to  consider  what  he  was  at  this  day, 
when  he  committed  this  fact.  There  you  have  a  srrent  many  circumstances  about 
tlie  powder  and  the  shot,  his  i;oin<j:  l)ackward  and  forward,  ami  if  you  believe  he 
wassensil)le,  aiul  had  the  use  of  his  reason  and  understood  wiiat  he  diil,  then  he  is 
nut  witldn  the  exemptions  of  tlie  law,  but  is  as  su))ject  to  ])unishment  as  any 
other  person."  The  prisoner  was  convicted  under  this  test  and  sentenced  to 
death,  but  was  afterwards  reprieved  at  the  request  of  Lord  Onslow, 

§ +.  Hadfleld's  Case  —  Brskine's  Argument.  —  Erskiue's  celebrated  spcccli 
on  the  trial  of  Iladtield  has  been  referred  to  with  admiration  by  many  judites  in 
subsequent  cases,  as  containing  the  (Irst  attempt  to  depart  from  the  barbarity  of 
the  ancient  test  of  insanity  in  criminal  cases.  The  prisoner  was  indicted  in  1800 
for  high  treason  in  shooting  at  King  George  III.'  Mr.  Erskine  in  opening  tlie 
defence  thus  addi'cssed  the  jury:  — 

"Oentlemen,  the  law  as  it  regards  this  most  unfortunate  infirmity  of  the  hu- 
man mind,  like  the  law  in  all  its  branches,  aims  at  tlie  utmost  degree  of  preci- 
sion; but  there  are  some  su])jects,  as  I  have  just  ol>served  to  you.  and  the 
jiresent  is  one  of  them,  upon  which  it  is  extremely  ditlicult  to  be  precise.  The 
general  principle  is  clear,  but  the  application  most  diflicult. 

"  It  is  agreed  by  all  jurists,  and  is  estai)lislied  by  the  law  of  this  and  every  other 
country,  that  it  is  the  reason  of  man,  which  makes  him  accountable  for  his  actions : 
and  that  the  deprivation  of  reason  acquits  him  of  crime.  This  principle  is  indis- 
putable; yet  so  fearfully  and  wonderfully  are  we  made,  so  intinitely  subtle  is  the 
spiritual  part  of  our  being,  so  ditflcult  is  it  to  trace  with  accuracy  the  effect  of 
diseased  intellect  upon  human  action,  that  I  may  appeal  to  all  these  who  hear 
nie,  whether  there  are  any  causes  more  ditllcult,  or  which,  indeed,  so  often  con- 


704. 


'  R.  V.  Hadfleld.i-  How  St.  Tr.  li&i. 


202 


TIIK    LE(3AL   TKST   OF    INSANITY. 


Nott'S. 


found  tlie  leiirnintj;  of  tlio  judixi's  tliomselvt's,  as  wiu'ii  insiuiity,  or  th«  cffcfts  and 
coiisc'<|ui'nct's  of  Insanity,  lu'conie  the  snl)jrots  of  Ici^al  consideration  and  judju- 
ment.  I  sliall  pursue  tlie  suhjeet  as  the  attorncy-seneral  has  properly  discussed 
it.  I  sliall  consider  insanity  as  it  annuls  a  man's  dominion  over  property;  as  it 
dissolves  his  contracts,  and  other  acts  whicli  otherwise  would  be  binding;  and 
as  it  takes  away  liis  responsibility  for  crimes.  If  I  could  draw  the  line  in  a 
moment  l)etween  these  two  views  of  the  s\d)ject,  I  am  sure  tlic  judjies  would  do 
me  the  justice  to  believe,  that  I  woidd  fairly  and  candidly  do  so;  but  j^reatdiffl- 
cultics  ])ress  upon  iny  mind,  which  oblivce  me  to  tal<e  a  dilHcult  course. 

"  I  agree  with  the  attorney-general  that  the  law,  in  neither  civil  nor  crindnal 
cases,  will  measure  the  degrees  of  men's  understandings;  and  that  a  weak  man, 
however  much  below  the  ordinary  standard  of  human  intellect,  is  not  only  re- 
sponsible for  crimes,  but  is  bound  by  his  contracts,  and  may  exercise  dominion 
over  his  property.  Sir  Joseph  Jkkyi,,  in  the  Duchess  of  Cleveland's  Case,  took  the 
clear  legal  distinction,  when  he  said  '  the  law  will  not  measure  the  sizes  of  men's 
capacities,  so  as  they  be  compos  mentis.'' 

"  Lord  C'oKK,  in  speaking  of  the  expression  »iou  con»po«  menWs,  says :  'Many 
times,  us  here,  the  Latin  word  expresses  the  true  sense,  and  calleth  him  not 
(tmens,  demeiis,  furiotius,  lunutkns,fatin(s,  stuUns,  or  the  like,  for  tinn  compos  mentis 
is  the  most  sure  and  legal.'  He  then  says:  '  non  compos  mentis  is  of  four  sorts: 
First,  ideota,  which  is  from  his  nativity  by  a  perpetual  inlirmity,  is  no)i  compos 
mentis;  secondly,  he  that  by  sickness,  grief,  or  other  accident,  wholly  loses  his 
memory  and  understanding;  third,  a  lunatic,  that  hath  sometimes  his  understand- 
ing and  sometisme  not ;  ali  (jnaddo  gandet  Incides  intervallis;  and  therefore  he  is 
called  non  compos  mentis,  so  long  as  he  hath  not  understanding.' 

"  But  notwithstanding  the  precision  with  which  this  great  author  points  out  the 
different  kinds  of  this  unhappy  malady,  the  nature  of  his  work,  in  this  part  of  it, 
did  not  open  to  any  illustration  which  it  can  now  be  useful  to  consider.  In  his 
Fourth  Institute  he  is  more  particular;  but  the  admirable  work  of  Lord  Chief 
Justice  II.vLK,  in  which  he  refers  to  Lord  Cokk's  Pleas  of  the  Crown,  renders  alj 
other  authorities  unnecessary. 

"  Lord  Halk  says :  '  There  is  a  partial  insanity  of  mind,  and  a  total  insanity.  The 
former  is  either  in  respect  to  things,  quoad  hoc  vel  illnd  insanire:  some  persons, 
tliat  have  a  competent  use  of  reason  in  respect  of  some  subjects,  are  yet  under  a 
particular  dementia  in  respect  of  some  particular  discourses,  subjects,  or  appli- 
cations; or  else  it  is  partial  in  respect  of  degrees:  and  this  is  tlie  condition  of 
very  many,  especially  melancholy  persons,  who  for  the  most  part  discover  their 
defect  in  excessive  fears  and  griefs,  and  yet  iWQ  not  wholly  destitute  of  the  use 
of  reason ;  and  this  partial  insanity  seems  not  to  excuse  them  in  the  committing 
of  any  offence  for  its  matter  capital ;  fov  doubtless  most  persons  that  are  felons 
of  themselves  and  others,  are  umler  a  degree  of  partial  insanity  when  they 
comndt  these  offences;  it  is  very  difficult  to  define  the  invisible  line  that  divides 
perfect  and  partial  insanity;  but  it  must  rest  upon  circumstances  duly  to  be 
weighed  and  considered  by  both  judge  and  jury,  lest  on  the  one  side,  there  be  a 
kind  of  inhumanity  towards  t'.ie  defects  of  human  nature ;  or  on  the  other  side  too 
great  an  indulgence  given  to  great  crimes.' 

"Nothing,  gentlemen,  can  be  more  accurately  or  more  humanely  expressed;  but 
the  application  of  the  rule  is  often  most  difficult.     I  am  bound,  besides,  to  admit 


CIVIL    AND    <  KIMIN.M-    \(  TS    DISTIXOUISIIED. 


203 


Erskiiu's  Ar;;iiiiit'iit  in  Iliulllehrs  Case. 


iliiit  there  is  u  wide  distlnctioii  l)et\veeii  civil  unci  criminal  cases.  If,  In  the 
luriner,  a  man  api)ears  upon  the  evidence,  to  l)e  noncnrnpox  nwntis,  the  law  avoids 
liis  net,  though  it  cannot  be  traced  or  connected  witli  tlie  morbid  iniai;iiiatlon 
wiiicli  constitutes  his  disease,  and  which  may  be  extremely  partial  in  its  inllnence 
iil)on  conduct;  bnt  to  deliver  a  man  from  responsil)iiity  for  crimes,  al)ove  all,  for 
(rimes  of  jijreat  atrocity  and  wickedness,  I  am  by  no  means  jirepared  to  apply 
this  rule,  however  well  established  wiien  property  is  only  concerned. 

"  In  tlic  very  recent  instance  of  Mr.  (Jreenwood  (whicli  must  Ix-  fresh  in  his 
lords'iip's  recollection),  the  rule  in  civil  ca.ses  was  eonsidired  to  be  settled. 
Tliatfrentleman,  whilst  insane,  took  up  an  idea  that  a  most  affectionate  l)n)ther 
liad  administered  poison  to  him.  Indeed,  it  was  tlie  pronunent  feature  of  his 
insanity.  In  a  few  montlis  he  recovered  his  .senses.  He  returned  to  his  pro- 
fession as  an  advocate;  was  sound  and  eminent  in  his  practict',  and  in  all  respects 
a  most  Intelligent  and  useful  memlK'r  of  six'iety;  but  he  coidd  never  dislodge 
from  his  nnnd  the  morbid  delusion  wliich  disturbed  it ;  and  under  the  pressure, 
no  doubt  of  that  diseased  possession,  he  disinherited  his  brother.  The  cause  to 
avoid  this  will  was  tried  here.  We  are  not  now  upon  the  evidence  l)Ut  upon  the 
principle  adopted  as  the  law.  The  noble  and  learned  jud^e,  who  presides  upon 
this  trial,  and  who  presided  upon  tliat,  told  the  jury,  tliat  if  they  believed  Mr. 
(ireenwood.  when  he  made  the  will,  to  liave  been  insnne,  the  will  could  not  be 
sujjported,  whether  it  ha<l  disinherited  his  l)rother  or  not;  that  the  act  no  doubt 
>tron,sily  confirmed  the  existence  of  the  false  idea  which,  if  ludieved  l)y  the  jury 
to  amount  to  madness,  would  e(|ually  have  affected  his  testament,  if  the  brother 
instead  of  beinjj  disiidierited,  Iiad  been  in  his  j^rave;  and  that,  on  the  other  hand, 
if  the  unfounded  notion  did  not  amount  to  madness  its  influence  could  not  vacate 
tlie  devise.  Tliis  principle  of  law  appears  to  be  sound  and  reasonable  as  it  applies 
to  civil  cases,  from  the  extreme  diffleulty  of  traeinn  with  precision  the  .secret 
motions  of  a  mind,  deprived  liy  disease  of  its  soundness  and  streiiiith. 

"Whenever,  therefore,  a  person  may  lie  considered  non  compos  mentis,  all  his 
civil  acts  are  void,  whether  they  can  l)e  referred,  or  not,  to  the  morbid  impulse 
of  his  malady,  or  even  thouirii  to  all  visible  appearances,  totally  .separated  from 
it;  but  I  ajjree  with  Mr.  Justice  Thacy,  that  it  is  not  every  man  of  an  idle,  fran- 
tic appearance  and  liehavior,  who  is  to  be  considered  as  a  lunatic,  either  as  It 
rcjiards  oblifjations  or  crimes;  but  that  he  must  appear  to  the  jury  to  be  won 
compos  mentis,  in  the  legal  acceptation  of  the  term;  and  that  not  at  any  anterior 
period,  which  can  have  no  bearing  upon  any  case  whatsoever,  but  at  the  moment 
wlien  the  contract  was  entered  into  or  the  crime  committed. 

"Tlie  attorney-general,  standing,  undoubtedly,  upon  the  most  revered  authori- 
ties of  the  law,  has  laid  it  down,  that  to  protect  a  man  from  criminal  responsibility, 
tliere  must  be  a  total  deprivation  of  memory  and  understanding.  I  admit  that  this 
is  the  very  expression  used  by  Lord  Coke  and  by  Lord  H.vle;  but  the  true  in- 
terpretation of  it  deserves  the  utmost  attention  and  consideration  of  the  court. 
If  a  total  deprivation  of  memory  was  intended  by  these  great  lawyers  to  be  taken 
in  the  literal  sense  of  the  words;  if  it  was  meant,  that  to  protect  a  man  from 
punishment,  he  mu.st  be  in  such  a  state  of  prostrated  intellect,  as  not  to  know  his 
name,  nor  his  condition,  nor  his  relation  towards  others,  that  if  a  husband,  he 
should  not  know  he  was  married ;  or,  if  a  father,  could  not  remember  that  he 
liud  children  •  nor  know  the  road  to  his  house,  nor  his  property  in  It,  then  no 


204 


TMK    LKiJAl,   TK.ST   Ol'    INSANITY. 


Noti's. 


siu;h  iniiiliU'j^s  ever  oxlstctl  in  tlif  world.  It  is  idiocy  aloiu-  whicli  places 
a  iiiiin  ill  tids  liclplcss  condition:  wiicrcfroin  an  oiiifiiud  iiialor^iani/ation,  tiurc 
is  tlu!  Iiiinian  fraiiu;  aioiic,  witlioiit  tlic  liiinian  capacity;  and  wliicli,  iiniccd, 
meets  tliu  very  delliiition  of  Lord  IIalk  liiniself,  wiieii,  relerriii;i  to  Kitzlierhert, 
lie  says:  '  Idiocy  or  fatuity,  a  mUiviUite,  vi'l  demt'titia  nuturnlis,  is  siidi  a  one  as 
dcscriitcd  liy  Fitzlurlurt,  wiio  knows  not  to  tell  twenty  slilllin;j;s,  nor  knows  liis 
own  ai;e.  or  wlio  was  Ids  father.'  Unt  in  all  the  cases  which  have  tilled  West- 
minster Hall  with  the  nio8t  ooni|)licated  considerations,  the  lunatics  and  other 
insane  jiersons  who  have  been  the  sr.lijects  of  them,  have  not  only  had  memory, 
ill  my  sense  of  tiie  expression,  they  have  not  only  had  the  most  perfect  knowl- 
edije  and  recollection  of  all  the  relations  they  stood  In  towards  others,  and  of  the 
acts  and  circumstances  of  their  lives,  hut  have,  in  ijeiieral,  been  remarkable  for 
subtlety  and  acnteness.  Defects  in  their  reasoniniis  have  seldoin  been  traceable, 
the  disease  consir.tin;;  in  the  delusive  sources  of  thonirht;  all  their  (U'ductloiis 
within  the  scope  of  the  malady  beimx  founded  upon  the  iiiimoval)le  assiimptioii 
of  matters  as  realities,  either  without  any  foundation  whatsoever,  or  so  distorted 
and  distliiured  by  fancy,  as  to  be  almost  nearly  the  .same  tliinii  as  their  creation. 
It  is  true,  Indeed,  that  in  some,  perhaps  in  many  cases,  the  hiiinaii  iniiul  is 
stunned  In  Its  citadel,  and  laid  prostrate  under  the  stroke  of  frenzy;  the.se  uii- 
liai)py  sufferers,  however,  an;  not  so  much  considered  by  pliysicians  as  maiiiat  -, 
as  to  he  in  a  state  of  delirium  from  fever.  Tlieri',  indeed,  all  the  Ideas  are  over- 
whelmed—  for  reason  Is  not  merely  disturbed,  but  driven  wholly  from  lier  svn\ . 
Such  unhappy  patients  are  unronscious,  therefore,  except  at  short  intervals,  even 
of  external  objects;  or,  at  least,  are  wholly  incapable  of  considerinn  their  rela- 
tions. Such  persons,  and  such  i)ersons  alone  (except  idiots)  are  wholly  deprived 
of  tlieir  understandinji.  In  the  attorney-^enerars  seeininu;  sense  of  that  expres- 
sion. But  these  cases  are  not  only  extremely  rare,  but  never  can  become  the 
siil)jects  of  judicial  dltllculty.  There  can  i)e  but  one  judiimeiit  concerninn  them. 
Ill  otJier  cases  reasnn  is  not  drvwu  from  her  sfat,  hut  distraction  sits  down  upon 
it  along  with  her,  holds  her  tremhliiKj  upon  it,  and  frightens  her  from  her  pro. 
pnetij.  Such  patients  are  victims  to  delusions  of  tlii'  most  alarmiiii^  descri|)tion, 
which  so  overpower  the  faculties,  and  usurp  so  lirinly  the  place  of  realities,  a> 
not  to  be  (lislodu;ed  and  shaken  by  the  organs  of  percei)tioii  and  sense;  in  such 
cases  the  imaiies  frequently  vary,  but  in  the  same  sul)ject  arc  peuera  tin 

.same  territic  character.  Here,  too,  no  judicial  difflcultii  ''m-  ;ireseiit  tip  iii- 
selves;  for  who  could  balance  upon  the  judiiuient  to  ))'  m  ■(!  in  case      of 

such  extreme  disease?     Another  cla.ss  branchinji  out  ii  lost  Inlinite  s       li- 

visions,  under  which,  indeed,  the  former,  and  every  (  i>f  iiis.iuity  may  bi- 
classed  is,  where  the  delusions  are  not  of  that  friiihtful  cIku  icter  but  Inflnitely 
various,  and  often  extremely  circumscribed;  yet  where  Imaiiinati m  (within  the 
bounds  of  the  malady)  still  holds  the  most  uncontrollable  dominion  over  reality 
and  fact;  and  these  are  the  cases  which  frequentlymockthe  wisdom  of  the  wisest 
in  judicial  trials;  because  such  |)ersoiis  often  reason  with  asui)tlety  wliiih  puts  in 
the  shade  the  ordinary  perceptions  of  mankind;  their  conclusions  are  just,  and 
frequently  profound;  but  the  premises  from  which  they  reason,  when  within  the 
I'ani'e  of  the  malady,  are  uniformly  false,  not  false  from  any  defect  of  knowlediXi 
or  judsiment;  but  because  a  delusive  imaire,  the  inseparable  companion  of  real 
Insanity,  Is  thrust  upon  the  snbjuiiated  uiulerstandiua;,  incapable  of  resistance  be- 
cause unconscious  of  attack. 


'I 


ixsam:  dkmsions. 


2or) 


ICrsklm's  Ar^iiiimiil  in  lliulllflil'f*  ('use 


lilcli  placi's 
'.atioii,  tlieiv 
ic-li,  indeed, 
Kilzlierl»erf, 
cit  a  «>nc>  Us 
I'  knows  his 
lllletl  West- 
s  and  otlier 
ad  nieniorv, 
feet  knowl- 
>,  and  uf  tile 
iiarkai)ie  for 
n  traeeal)le, 

deciuctioiis 
ussnniption 
so  distorted 
'ir  creation, 
ta  niinci  is 
;  tliese  Un- 
as maniacs, 
us  are  over- 
ni  lier  seat. 
L-rvals,  even 
;tlieir  rela- 
ly  deprived 
lat  expres- 
)ecoino  llic 
ninsi  tliein. 
dmon  upon 
m  her  pro. 

scriptlon, 
ealities,  a- 
in  sucli 
al  '  tlie 
ient  tlh  ni- 
n  cas(  of 
lito  S  ii- 
ty  may  Ik 
t  inflnitciy 
witliin  tlie 
ver  reality 
tlie  wisest 
i<h  puts  in 

just,  and 
witldn  tlie 
:nowIedir( 
on  of  real 
stance  be- 


"  Delusion,  therefore,  wliere  tliere  Is  no  frenzy  or  ravlutf  madness,  is  tlie  true 
character  of  insanity;  and  where  if  cannot  be  pn'di(!ated  of  a  man  standing  for 
life  or  death  for  a  crime,  In- ouirht  not,  in  my  opinion,  to  be  acniuilted!  and  if 
courts  of  law  were  to  be  governed  by  any  other  iirliiciple,  every  departure  from 
>ol)er,  ratlomil  conduct,  would  lie  an  emancipation  from  criminal  justice.  I  sliall 
place  my  claim  to  your  verdict  upon  no  siicli  dau<;erousfoundation.  I  must  con- 
vince yon,  not  only  tliat  the  unhaiipy  prisoner  was  a  lunatic,  witldn  my  own 
ietlnition  of  lunacy,  buttliat  tlie  act  in  question,  was  tin*  immediate,  un(|ualitted 
offsprin^i  of  tlie  disea.sc.  In  civil  cases,  as  I  liave  alri'ady  said,  the  law  avoids 
every  act  of  the  lunatic  duriufi  llic  period  of  the  lunacy;  aitiiontfh  the  lunacy  may 
liecxccodiufily  circumscribed;  aithoufrli  tlie  mind  may  be  quite  sound  in  all  that  is 
not  within  the  sliadcs  of  the  very  partial  eclipse;  and  althoui;li  the  act  to  b<' 
avoided  can  in  no  way  lie  connected  wltli  the  iiitluence  of  insanity;  but  to  deliver 
a  lunatic  from  responsibility  to  criminal  justice,  above  all,  in  a  <'ase  of  such 
atrocity  as  the  present,  the  relation  lietweeii  the  disease  and  the  act  should  be 
apparent.  Wlieii  the  connection  is  <loiibtfnl,  the  judmneut  should  certainly  be 
most  indul^reiit  from  the  irreatdillicnlty  of  divinii  into  tlie  secret  sources  of  a  dis- 
<irdercd  mind;  but,  still,  I  think,  that  as  a  doctrine  of  law,  tlie  delusion  and  the 
act  should  be  connected. 

"  Vou  perceive,  therefore,  lientleinen,  that  the  prisoner,  in  naniinji  me  for  his 
counsel,  has  not  obtained  the  assistance  of  a  person  who  is  disposed  to  carry  tlic 
doctrine  of  insanity  in  his  defence,  so  far  as  even  the  books  would  warrant  me  in 
carryinij;  it.  Some  of  the  cases,  that  of  Lord  Ferrers,  for  instance,  which  I  shall 
consider  liereafter,  distinKnished  from  the  present,  would  not,  in  my  mind,  bear 
ilie  shadow  of  an  arjj;uinent,  as  a  defence  airainst  an  indictment  for  murder.  I 
•aniiot  allow  the  protection  of  insanity  to  a  man  wlio  only  exhibits  violent  piis- 
sions  and  malignant  resentments,  actiii;;  upon  real  circumstances:  wlio  fs  im- 
pelled to  evil  from  no  morbid  delusions;  but  wiio  proceeds  upon  the  ordinary 
perceiitions  of  the  mind.  I  »'aiiiiot  consider  such  a  man  as  fallinir  within  the 
protection  which  the  lawjrives,  and  is  bound  tc;;ive,  to  those  wliom  it  has  pleased 
(iod,  for  mysterious  causes  to  visit  wit',  tliis  most  attlictinjr  calamity. 

"  lie  alone  can  be  so  emancipated  whose  disease  (call  it  what  you  will)  ^:on- 
>ist>,  not  merely  in  seein*;  witli  a  prejudiced  eye,  or  with  odd  and  alisiinl  jiarti- 
(iilaritics,  diffcrins;,  in  many  respects,  from  the  contemplations  of  sober  sense, 
upon  the  actual  existence  of  things,  but,  he  only  whose  whole  reasoninfi  and 
correspondiui;  conduct,  tliou;:li  ;ioveriied  by  the  ordinary  dictates  of  reason, 
proceed  upon  somethinji  which  has  no  foundation  or  existence. 

"  (Jeutlemen,  it  has  iileased  (Jod  so  to  visit  the  unliappy  man  before  yon;  to 
shake  his  reason  in  its  citadel;  to  cause  to  build  up  as  realities,  tlie  most  impos- 
sible phantoms  of  the  mind,  and  to  be  impelled  by  them  as  motives  irresistil/ic ; 
the  whole  fabric  beini!;  iiothiiii?  but  tlie  unhappy  vision  of  liis  disease  —  existinj; 
iiowhereel.se  —  haviuii  no  foundation  whatsoever  in  tlu?  very  nature  of  things. 
(Jeutlemen,  it  has  been  stated  by  tlie  attorney-jreneral,  and  establislied  by  evi- 
'it'iice,  which  1  am  in  no  condition  to  contradict  nor  have,  indeed,  any  interest 
ill  contradictinjt,  that  when  the  prisoner  bouiilit  the  pistol  whicli  he  discharjied 
at,  or  towards  his  majesty,  he  was  well  acipuiinted  with  the  nature  and  use  of 
it,  —  that,  as  a  soldier,  he  could  not  but  know  that  in  his  hands  it  was  a  sure 
instrument  of  death;  that  when  he  boujrht  the  iiunpowder,  he  knew  it  would 


206 


THE   LEGAL   TEST   OF   INSANITY. 


Notes. 


prepare  the  pistol  for  Its  use ;  tliat  when  lie  went  to  the  play-house,  he  knew  he 
AViis  going  there,  and  everything  connected  with  the  scene,  as  perfectly  as  any 
other  person,  —  I  freely  admit  all  tl:is.  I  admit,  also,  that  every  person  who 
listened  to  his  conversation,  and  oljserved  his  deporLnient  upon  his  apprehension, 
must  have  given  precisely  the  evidence  delivered  by  his  royal  highness  the  Duke 
of  York;  and  that  nothing  like  insanity  ai)pe;ired  to  those  who  examined  him. 
Hut  what  then?  I  conceive,  gentlemen,  that  I  am  more  in  the  habit  of  examina- 
tion, than  either  that  illustrious  ])erson,  or  the  witnesses  from  whom  you  have 
heard  this  account;  yet  I  well  remember  (indeed  I  never  can  forget  it),  that 
since  the  noble  and  learned  judge  has  presided  in  this  court,  I  examined  for  the 
greater  part  of  a  day,  in  this  very  place,  an  unfortunate  gentleman  who  had 
indicted  a  most  affectionate  brother,  together  witli  the  keeper  of  a  mad-house  at 
Iloxton,  for  having  imprisoned  him  as  a  lunatic;  whilst,  according  to  his  evidence, 
lie  was  in  his  perfect  senses.  I  was  unfortunately  not  instructed  in  what  his 
lunacy  consisted,  although  my  instructions  left  me  no  doubt  of  the  fact;  but 
n<  t  having  the  clue,  lie  completely  foiled  me  in  every  attempt  to  expose  his 
infiiinity.  You  may  believe  that  I  left  no  n;eans  unemployed  which  long  experi- 
ence dictated;  but  without  the  smallest  effect.  The  day  was  wasted,  and  the 
prosecutor  by  the  most  affecting  history  of  unmerited  suffering,  appeared  to  the 
judge  and  jury,  and  to  a  humane  P^ngl.sh  audience,  as  the  victim  of  the  most 
wanton  and  barbarous  oppression :  at  last  Dr.  Sims  came  into  court,  who  had 
been  prevented  l)y  business,  from  an  earlier  attendance;  and  whose  name,  by 
the  by,  I  observe  to-day  in  the  list  of  the  witnesses  for  the  crown.  From  Dr. 
Sims  I  soon  learned  that  the  very  man  wl  om  I  had  been  above  an  hour  examin- 
ing and  with  every  possi))le  effort  which  counsel  are  so  much  in  the  habit  of 
exerting,  believed  himself  to  be  the  Lord  and  Savior  of  uiankind;  not  merely  at 
the  time  of  his  coutlnement,  which  was  alone  necessai'y  for  my  defence;  but 
during  the  whole  time  that  he  had  been  triumphing  over  every  attempt  to  sur- 
prise him  in  the  concealment  of  his  disease.  I  then  affected  to  lament  thg 
indecency  of  my  ignorant  examination,  when  he  expresseil  his  forgiveness,  and 
said,  with  the  utmost  gravity  and  emphasis  in  the  face  of  the  whole  court,  ♦'  I  am 
the  Christ,"  and  so  the  cause  ende,\  Gentlemen,  this  is  not  the  only  instance  of 
the  power  of  concealing  this  malady.  I  could  consume  the  day  if  I  were  to  enumer- 
ate thein;  but  there  is  one  so  extremely  remarkable,  that  I  cannot  help  stating  it. 
"  Being  engaged  to  attend  tne  assizes  at  Chester  upon  a  question  of  lunacy,  and 
having  been  told  that  there  had  been  a  meinoral)le  case  tried  before  Lord  Mans- 
KiKLi)  in  this  place,  I  was  anxious  to  procure  a  rei)crt  of  it;  and  from  that  great 
man  himself  (who  within  these  walls  will  ever  be  reverenceil),  being  then  retired 
in  his  extreme  old  age,  to  his  seat  near  London,  in  my  own  neighborhood,  I 
obtained  the  following  account  of  it:  '.V  man  of  the  name  of  Wood,'  said  Lord 
Mansfield,  '  had  indicted  Dr.  Monro  for  keeping  him  as  a  prisoner  (I  believe  in 
the  same  mad-house  at  Iloxton)  when  he  was  sane,  lie  underwent  the  most 
severe  examination  by  the  defendant's  counsel  witliout  exposing  his  complaint; 
but  Dr.  Battye,  having  come  upon  the  bench  by  me,  and  having  desired  me  to 
ask  him  what  was  bei-ome  of  the  princess  whom  he  had  corresponded  with  in 
cherry  juice,  he  showed  in  a  moment  what  he  was.  lie  answered,  that  there  was 
nothing  at  all  in  that,  because  having  l)een  (as  every  body  knew)  imi>risoned  in  a 
high  tower,  and  being  debarred  the  use  of  ink,  he  had  no  other  means  of  conre- 


J 


le  knew  he 

ctly  as  ail}- 

lersoii  who 

)rehen.sioi», 

s  tlie  Duke 

iniiu'd  him. 

f  exainina- 

n you  have 

it  it),  that 

led  for  tlio 

II  wlio  had 

d-house  at 

s evidence, 

1  what  his 

fact ;  bu  t 

expose  his 

ng  expci-i- 

(1,  and  the 

ired  to  tlie 

tlie  most 

,  wlio  had 

name,  l)y 

From  Dr. 

[•  examin- 

L'  Ijiihit  of 

merely  at 

ence;  but 

pt  to  sur- 

iment  tlic; 

ness,  and 

rt,  '<Iam 

istancc  of 

)enumer- 

tating  it. 

naey,  and 

*d  Maxs- 

liat  great 

n  retired 

)riiood,  I 

ud  Loril 

)elieve  in 

:lie  most 

mplaint; 

id  me  to 

1  with  in 

liere  was 

)ned  in  a 

f  eonre- 


INSANE    DELUSIONS. 


207 


Erslvine's  Argument  in  Iladtleld's  Case 


spondence  i)iit  i)y  writing  Ids  letters  in  cherry  juice,  and  throwing  tliem  into  the 
river  wliieli  surrounded  the  tower,  wiiere  the  princess  received  thi-m  in  a  boat. 
Tliere  existed,  of  course,  no  tower,  no  imprisonment,  no  writing  in  cherry 
juice,  no  river,  no  l)oat;  l)ut  tlie  whole  the  niveterate  phantom  of  a  morhid 
imagination.  1  immediately,'  continiu'd  Lord  iM.vNsi-'ii:r.i>,  'directed  Dr. 
Monro  to  be  acquitted;  but  this  man  W(jod,  l)L'iiig  a  mrrchant  in  I'lnlpollane^ 
and  having  been  carried  through  the  city  on  ids  way  to  the  mad-liouse, 
he  indicted  Dr.  Monro  over  again  for  the  trespass  and  imprisonment  in 
London,  l<nowing  tiiat  he  liad  lost  his  cause  by  speaking  of  the  i)rincess  at  West- 
minister: and  such,'  said  Lord  M.v.nskiki.d,  '  is  the  extraordinary  sul)tlety  and 
cunning  of  madmen,  that  when  he  was  cross-e.xamiued  on  the  trial  in  London, 
as  he  liad  successfully  been  before,  in  order  to  expose  his  madness,  all  the 
ingenuity  of  the  l)ar,  and  all  the  authority  of  the  court  cou'  '  not  make  lam  say  a 
single  syllable  ui)on  that  topic  which  had  put  an  end' to  tii'>  indictment  before, 
althouglihe  still  had  the  same  indelible  impression  upon  his  mind,  as  he  signilleil 
totliose  who  were  near  him;  l)Ut  conscious  that  the  delusion  had  occasioned  his 
defeat  at  Westndidster,  he  obstinately  |)ersisted  in  holding  it  hack.' 

"Now,  gentlemen,  let  us  look  to  the  application  of  thesi-  cases.  I  am  not 
examining,  for  the  present,  whether  eitlu-r  of  these  persons  ought  to  lia\e  l)eeu 
acquitted,  if  they  had  stood  in  the  place  of  the  i)risoner  now  before  you:  that 
is  quite  a  distinct  c<msiderati(ni  which  we  shall  come  to  hereafter.  The  direct 
application  of  them  is  only  this:  thiit  if  I  bring  l)efore  you  such  evitleuce  of  the 
prisoner's  insanity  as,  if  believed  to  have  really  existed,  sliall,  in  the  opinion 
of  the  court,  as  the  rule  for  your  verdict  In  point  of  law,  be  suHicient  for  his 
deliverance,  then  that  yon  ought  not  to  be  shaken,  in  giving  full  credit  to  such 
evidence,  notwithstanding  the  report  of  those  who  were  present  at  his  apprehen- 
sion, who  describe  him  as  discovering  no  symptom  whatever  of  mental  incapacity 
or  disorder;  because  I  have  shown  you  that  insane  persons  frequently  appear  in 
the  utmost  state  of  al)ility  and  comjxjsure,  even  in  the  hiithest  paroxysms  of 
insanity,  except  when  frenzy  is  the  characteristit;  of  the  disease.  In  tins  respect, 
the  cases  I  have  cited  to  you,  have  the  most  decided  application;  because  they 
apply  to  the  overthrow  of  the  whole  of  the  evidence  (aduuttiug  ;d  tlie  s;ime  time 
the  truth  of  it,)  by  which  the  prisoner's  case  can  alone  be  encountered. 

"  But  it  is  said  that  whatever  delusions  may  overshadow  the  mind,  every  person 
ought  to  be  responsible  for  crimes  who  has  the  knowledge  of  good  and  evil- 
I  think  I  can  presently  convince  you  that  there  is  something  too  general  in  this 
mode  of  considering  the  subject;  anil  you  do  not,  therefore,  find  any  such 
proposition  in  the  language  of  the  celebrated  writer  idiuded  to  by  tlie  attorney- 
general  in  his  speech.  Let  me  suppose  that  the  character  of  an  insane  delusion 
consisted  in  the  belief  that  some  given  person  was  any  brute  animal,  or  an 
inanimate  being  (and  such  cases  have  existed),  and  that,  uixm  the  trial  of  such 
a  lunatic  for  murder,  you  firmly,  upon  your  oaths,  were  eouviuced,  upon  the 
uncontradicted  evidence  of  an  hundred  persons,  that  he  believi'd  the  man  he 
had  destroyed  to  have  been  a  potter's  vesstd:  that  it  was  (|uilc  impossiijle  to 
doubt  that  fact,  although  to  all  other  intents  and  i)urposes  he  was  sane,  con- 
versing, reasoning  and  acting  as  men  not  in  any  manner  tainted  witli  insanity 
converse  and  reason  and  conduct  themselves:  and  sui)pose,  further,  that  lie 
believed  the  man  whom  he  destroyed,  but  whom   he  destroyed  as  si  potter's 


208 


THE   LEGAL   TEST   OF    INSANITY. 


Notes. 


vpssel,  to  be  tlio  property  of  aiiothor;  uiid  that  ho  had  malico  against  such  sup- 
posed person,  and  tlrit  lie  meant  to  injure  hhn,  Kuowinii  the  act  lie  was  dohig  to 
1)0  malicious  and  injurious;  and  that,  in  short,  ho  had  full  knowledfie  of  all 
the  iirinciples  ()f  ijood  and  evil;  yt't  would  it  bo  possible  to  convict  such  a 
person  of  niunU'r,  if,  from  the  inllueuco  of  his  disease,  ho  was  of  the  relation 
ho  stood  in  to  the  man  ho  had  destroyed,  and  was  utterly  unconscious  that  he 
had  struck  at  the  life  of  a  human  beinir?  I  ouly  put  this  case,  and  many  others 
miijht  be  brought  as  exiimi)les,  to  illustrate  that  the  knowledge  of  ;iood  and  evil 
is  too  iieneral  a  descriptit)n. 

*'  I  really  think,  however,  that  the  attorney-jjoneral  and  myself  do  not  in  sub- 
stance viry  materially  differ;  because,  from  the  whole  of  his  most  able  speech 
taken  toycether,  his  meaning;  uiay,  I  think,  be  thus  collected:  that  when  the  act 
which  is  criminal  is  done  under  the  dominion  of  malicious  mischief  and  wicked 
intention,  althontih  such  insanity  miirht  exist  in  a  corner  of  the  mind  as  might 
Mvoid  the  acts  of  the  delin(|uont  as  a  lunatic,  in  a  civil  case,  yet  that  he  ought 
not  to  be  protected  if  uialicious  mischief,  and  not  Insanity,  had  impelled  him  to 
the  act  for  which  he  was  criminally  to  answer;  because,  in  such  a  case,  the  act 
might  be  justly  ascribed  to  malignant  motives,  and  not  to  the  dominion  of  dis- 
ease. I  am  not  disposed  to  dispute  such  a  proi)osition,  in  a  case  which  would 
apply  to  it,  and  I  can  well  ci)ncoivo  such  cases  may  exist.  The  question, 
tlierefore,  which  you  will  have  to  try  is  this:  Whether,  when  this  unhajipy  man 
ilischarged  the  pistol  in  a  direction  which  convinced,  and  ought  to  convince, 
every  person  that  it  was  pointed  at  the  king,  he  meditated  mischief  and  violence 
to  his  majesty,  or  whether  ho  came  to  the  theatre  (which  it  is  my  purpose  to 
establish)  under  the  dominion  of  the  most  melancholy  insanity  that  over  degraded 
and  overpoworod  the  faculties  of  man.  I  admit  that  when  he  bought  the  pistol, 
and  the  gunpowder  to  load  it,  ar  '  when  he  loaded  it  and  came  with  it  to  the 
theatre,  and  lastly,  when  ho  discharged  it,  every  one  of  those  acts  would  be 
overt  acts  of  compassing  the  king's  death,  if  at  all  or  any  of  those  periods  he 
was  actuated  by  that  mind  and  intention  which  would  have  constituted  nuirdor 
in  the  case  of  an  individual,  if  the  individual  had  boon  actually  killed.  I  admit, 
also,  that  the  mischievous,  and,  in  this  case,  the  traitorous,  intention  nuist  be 
inferred  from  all  those  acts,  unless  I  can  rebut  the  inference  by  proof.  If  I 
were  to  lire  a  pistol  towards  you,  gentlemen,  where  you  are  now  siting,  the 
act  would  imdoubti'dly  infer  the  malice.  The  whole  proof,  therefore,  is  undoubt- 
edly cast  ujion  me.  In  every  case  of  treason  or  murder,  which  are  precisely  the 
same,  i'xcei)ting  that  the  uncousummated  intention  in  the  case  of  the  king  is  the 
same  as  the  actual  murder  of  a  jirivato  man,  the  jury  must  inii)ute  to  the  person 
whom  they  condenm  by  their  verdict  the  motive  which  constitutes  the  crime; 
and  your  jirovince  to-day  will  therefore  l)e  to  decide  whether  the  prisoner,  when 
lie  did  the  act,  was  under  the  uncontrollable  dominion  of  insanity,  and  was 
impelled  to  do  it  by  a  morbid  delusion;  or  whether  it  was  the  act  of  a  man  who, 
though  occasionally  mad,  or  even  at  the  time  not  properly  collected,  was  yet  not 
actuated  by  the  disease,  but  by  the  suggestion  of  a  wicked  and  malignant  dis- 
position. 1  admit,  therefore,  freely,  that  if  after  you  have  heard  the  evidence 
which  I  hasten  to  lay  before  you  of  the  state  of  the  prisoner's  mind,  and  close 
up  to  the  very  time  of  this  catastrophe,  yon  shall  still  not  fool  yourselves  clearly 
justified  in  negativing  the  wicked  motives  imputed  by  this  indictment,  I  shall 


IIAUFIKLO  S    CASE. 


2()i> 


Erskiiio's  Aryiiineiit. 


,'oiild  be 

•iods  lie 

murder 

I  admit, 

must  be 

If  I 

tiusi,  the 

mdoubt- 

isely  the 

1^  is  the 

person 

crime; 

■r,  when 

ind  was 

an  wli'>, 

yet  not 

ant  dis- 

'videnee 

iKi  close 

clearly 

I  shall 


5 


leave  you  in  the  hands  of  the  learned  judges  to  declare  to  you  the  law  of  the 
land,  and  shall  no.  seek  to  place  society  in  a  state  of  uncertainty  by  any  api)eal 
addressed  only  to  your  compassion.  I  am  appointed  by  the  court  to  claim  for 
the  i)risoner  the  full  i)rotection  of  the  law,  biit  not  to  misrejiresent  it  in  his  [)ro- 
tection. 

"  (lentlen'  -i    the  facts  of  this  melancholy  case  lie  within  a  narrow  compass. 

"  The  un.  •'.luate  person  before  you  was  a  soldier.  He  liecame  so,  1  believe  in 
the  year  1  ■•  ,  and  is  now  about  twenty-nine  years  of  age.  Jle  served  in  Flan- 
ders, under  the  Dr.keof  York,  as  appears  by  his  Koyal  Highness's  evidence;  and 
being  a  most  approved  s(jldier,  he  was  one  of  those  singled  out  as  an  orderlyman 
to  attend  upon  the  person  of  theconnnander-in-chief.  You  have  been  witnesses, 
gentlemen,  to  the  calmness  with  which  the  i)risoner  has  sitten  in  his  place  during 
the  trial.  There  was  but  one  exception  to  it.  You  saw  the  emotion  whicli  over- 
powered him,  wh(  n  the  illustrions  person  now  in  court,  took  his  seat  upon  the 
bench.  Can  you  then  believe,  from  the  evidence,  for  I  <lo  not  ask  you  to  judge 
as  physiognomists,  or  to  give  the  rein  to  compassionate  fancy;  but  can  there  be 
any  doubt  that  it  was  the  generous  emotion  of  the  mind,  on  seeing  the  prince, 
under  whom  lie  had  served  with  so  much  bravery  and  hoiiori'  Every  man  cer- 
tainly must  judge  for  himself.  '  i  in  counsel,  not  a  witness,  in  the  cause;  but  it 
is  u  most  striking  circumstance,  i>  leii  you  fmd  from  the  Crown's  evidence,  that 
wlicn  he  was  dragged  through  the  orchestra  under  the  stage,  and  charged  with 
an  act  for  which  he  considered  his  life  as  forfeited,  he  addressed  the  Duke  of 
York  with  the  same  enthusiasm  wliich  has  marked  the  demeanor  I  am  advert- 
ing to.  Mr.  Richardson,  who  showed  no  disposition  in  his  evidence  to  help  the 
prisoner,  but  who  spoke  with  the  calmness  and  circumspection  of  truth,  and  who 
had  no  idea  that  the  person  he  was  examining  was  a  lunatic,  has  given  you 
the  account  of  the  burst  of  affection  on  his  lirst  setniig  the  J)uk  of  York,  against 
whose  father  and  sovereign  he  was  suppoNcd  to  have  had  tlie  consciousness  of 
treason.  The  king  himself,  whom  he  was  supposed  to  have  so  malignantly  at- 
tacked, never  had  a  more  gallant,  loyal,  or  suffering  soldier.  His  gallantry  and 
loyalty  will  be  proved;  his  sufferings  speak  for  themselves. 

"About  live  miles  from  I.  sle,  upon  the  attack  made  on  the  British  army,  this 
unfortunate  soldier  was  in  I'ic  Fifteenth  Liglit  Dragoons,  in  the  thicki'st  of  the 
ranks,  exposing  his  life  for  his  jirince  whom  he  is  supposed  to-day  to  have 
sought  to  murder;  the  first  wound  he  received  is  most  materially  connected  with 
the  subject  we  are  now  considering;  you  may  see  the  effect  of  it  now.  The 
point  of  a  sword  was  impelled  against  him  with  all  the  force  of  a  man  urging  his 
horse  in  battle.  When  the  court  putthe  prisoner  under  my  protection,  I  thought 
it  my  duty  to  bring  Mr.  Cline  to  inspect  him  in  Mewgate;  and  it  will  appear  by 
the  evidence  of  that  excellent  and  cmiscientious  person,  who  is  known  to  be  one 
of  the  first  anatomists  in  the  world,  that  from  this  wound  one  of  two  things 
must  have  happened:  either  that  by  the  immediate  operation  of  surgery  the  dis- 
placed part  of  the  skull  must  have  been  taken  away  »."  been  forced  inward  in  the 
brain.  The  second  stroke,  also  speaks  for  itself;  you  may  now  see  its  effects. 
(Here  Mr.  Erskine  touched  the  head  of  the  prisoner.)  He  was  cut  across  all 
the  nerves  which  give  sensibility  and  animation  to  the  body,  and  his  head  hung 
down  almost  dissevered,  until  by  the  art  of  surgery,  it  was  placed  in  tlie  posi- 
tion in  which  you  now  see  it ;  but  thus,  almost  destroyed,  he  still  recollected  his 

U 


■n 


210 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


duty,  iiiid  continued  to  niiuntain  the  glory  of  Ins  country,  when  a  sword  divided 
tlie  nicniijnine  of  his  necl\  wiiere  it  teniunates  in  tlie  head;  yet  he  still  kept  Ids 
place,  though  his  lielinet  had  been  thrown  off  by  the  blow  which  I  secondly  de- 
scribed, when  by  another  sword,  he  was  cut  into  the  very  brain.  You  may  now 
see  its  membrane  uncovered.  Mr.  Cline  will  tell  you  that  he  exanuned  these 
wounds,  and  he  can  better  describe  them.  1  have  myself  seen  tliem,  but  um  no 
surgeon;  from  his  evidence  you  will  have  to  consider  their  conseciuenees.  It 
may  be  said  tliat  many  soldiers  receive  grievous  wounds,  without  their  i)roducing 
insanity.  So  they  may  undoubtedly,  but  we  are  here  ujion  the  fact.  There  was 
a  discussion  the  other  day,  on  whether  a  man,  who  had  been  seennngly  hurt  by  a 
fall  beyond  remedy,  could  get  up  and  walk;  the  people  around  said  it  was  im- 
possil)le,  but  he  did  get  up  and  walk,  and  so  thi're  was  an  end  to  the  impossibility. 
The  effect  of  the  prisoner's  wounds  were  known  by  the  innnediate  event  of  in- 
sanity, and  Mr.  Cline  will  tell  you,  that  it  would  have  been  strange,  indeed,  if 
any  other  event  had  followed.  We  are  not  here  upon  a  case  of  insanity  arising 
from  the  spiritual  part  of  man,  as  it  may  be  affected  by  hereditary  taint,  by  in- 
temperance, or  l>y  violent  passions,  the  operations  of  Avhich  are  various  and  un- 
certain; but  we  liave  to  deal  with  a  species  of  insanity  more  resend)ling  what 
has  been  described  as  idiocy,  proceeding  from  original  mal-organization.  There 
the  disease  is,  from  its  very  nature,  incurable;  and  so  where  a  man  (like  the 
prisoner)  has  become  insane  from  violence  to  the  brain,  which  permanently  af- 
fects its  structure,  however  such  a  man  may  appear  occasionally  to  others,  his 
disease  is  immovable;  and  if  the  prisoner,  therefore,  were  to  lite  a  thousand 
years,  he  never  could  recover  from  the  conse(iuences  of  that  day. 

"  But  this  is  not  all.  Anotlicr  blow  was  still  aimed  at  him,  which  he  lu-ld  up  his 
arm  to  avoid,  when  his  hand  was  cut  into  the  bone.  It  is  aw  atllicting  subject, 
gentlemen,  and  better  to  Ijc  spoken  of  by  those  who  understand  it;  and  to  end 
all  further  description,  he  was  then  thrust  almost  through  and  through  the  body 
with  a  bayonet,  and  left  in  the  ditch  among  tlie  slain.  He  was  afterwards  car- 
ried to  an  hospital,  where  he  was  known  by  liis  tongue  to  one  of  his  countrymen, 
who  will  be  examined  as  a  witness,  who  found  him,  not  merely  as  ti  wounded 
soldier  deprived  of  the  i)ower  of  his  body,  l.nit  bereft  of  his  senses  forever. 

"  lie  was  affected  from  the  very  beginning,  with  that  species  of  madness  which, 
from  violent  agitation,  tills  the  ndnd  witli  the  most  inconceivable  imaginations, 
wliolly  unfitting  it  for  all  dealing  with  human  affairs  according  to  the  sol)er  esti- 
mate and  standard  of  reason.  He  imagined  that  he  had  constant  intercourse 
witli  the  Abnighty  Author  of  all  things;  that  the  w^orld  was  coming  to  a  conclu- 
sion, and  that  like  our  bles!<ed  Savior,  he  was  to  .sacrifice  himself  for  its  salvation- 
And  so  obstinately  did  this  morbid  image  continue,  that  you  will  be  convinee<i 
he  went  to  tlie  theatre  to  perforin,  as  he  imagined,  that  l)lessed  sacrifice;  and 
because  he  would  not  be  guilty  of  suicide,  though  called  upon  by  the  imperiou> 
voice  of  lieaveii,  he  wished  that  by  the  appearance  of  crime  his  life  might  betaken 
away  from  liiin  by  others.  This  bewildered,  extravagant  species  of  madness, 
appeared  immediately  after  his  wounds  on  his  first  entering  the  hospital,  and  on 
the  very  same  account  he  was  discharged  from  the  army  on  his  return  to  Eng- 
land, which  the  attorney-general  very  honorably  and  candidly  seemed  to  intimate. 
To  proceed  with  the  proofs  of  his  Insanity  down  to  the  very  period  of  his  suii- 
posed  guilt.     This  unfortunate  man  before  you  is  the  father  of  an  infant  of  eight 


HADFIELU  S    CASE. 


211 


Krskiiu'.s  AruuiiiLiit. 


d  divided 
1  kept  his 
nndly  dc- 
umy  now 
iiR'd  tlu'sr 
)iit  uiu  nu 

L'llCCS.      It 

l)r<)(lucinii 
riicro  was 

iuirt  by  ii 
t  was  im- 
lossibility. 
,ent  of  in- 

intU'od,  if 
ity  arislnj: 
int,  by  in- 
is  and  nii- 
)ling  what 
)n.  Thoiv 
1  (like  the 
meiitly  af- 
otliers,  his 

tliousand 

iil<l  up  his 
iii  subject, 
ind  to  end 
tiie  body 
rtards  car- 
untrynien, 
I  woundeil 
ver. 

less  which, 

uinations, 

ober  esti- 

iiterconrse 

u  eonclu- 

salvation. 

convinced 

illce;  anil 

iniperloii- 

it  be  taken 

madness, 

al,  and  on 

n  to  Enii- 

•  intimate. 

f  his  snp- 

it  of  eisiht 


niontlis,  and  I  have  no  doubt,  tliat  if  the  boy  luul  been  brou'ilit  into  court  (Uxw 
this  is  a  grave  place  for  the  consideration  of  justice,  and  not  a  tlieatre'for  stage 
effect),  —  I  say,  I  have  no  doul)t  wlmtever,  tliat  if  this  poor  infant  had  been 
b.ouglit  into  court,  you  would  have  seen  the  unhappy  father  wrung  with  all  the 
emotions  of  parental  affection;  yet  upon  tlie  Tuesday  preceding  the  Tinirsday 
when  he  went  to  tlie  play-house,  you  will  llnd  his  disease  still  tirging  him  forward 
\\itli  the  impression  that  the  time  was  come  when  he  nmst  be  destroyed  for  the 
benefit  of  mankind;  and  in  the  confusion,  or  rather  delirium  of  this  wild  concep- 
tion, he  came  to  the  bed  of  the  mother,  who  had  this  infant  in  her  arms,  and  en- 
deavored to  dash  out  its  brains  against  the  wall;  the  fanuly  was  alarmed,  aiul 
the  neigld)ors  being  called  in,  the  child  was  with  dillieulty  rescued  from  the  un- 
happy parent,  who,  in  his  madness,  would  ha\e  destroyed  it. 

"Now  let  me  for  a  moment  suppose  that  he  hud  succeeded  in  tlie  accomplish- 
ment of  his  insane  purpose,  and  the  question  had  been  whetlier  he  was  guilty 
of  murder.  Surely,  the  affection  for  this  infant,  up  to  the  very  moment  of  his 
distracted  violence,  would  have  been  conclusive  in  his  favor,  but  not  more  so 
than  his  loyalty  to  the  king,  and  his  attachment  to  the  Duke  of  York,  as  appli- 
caltle  to  the  case  before  us;  yet  at  that  very  jieriod  even  of  extreme  distraction 
he  conversed  as  rationally  on  all  other  subjects  as  he  did  to  the  Duke  of  York 
at  the  theatre.  The  prisoner  knew  perf'ctly  that  he  was  the  liusl)and  of  the 
woman  and  the  father  of  the  child;  the  teais  of  affection  ran  dov.n  his  face  at 
the  very  moment  when  he  was  ai)ont  to  aci'mplish  its  destruction;  but  durinir 
the  whole  of  this  scene  of  horror  he  was  not  at  all  deprived  of  memory,  in  the 
attorney-general's  sense  of  the  expression;  he  could  have  conununic  ited,  at 
that  very  moment,  every  circumstance  of  his  past  life,  and  everything  eonneeteil 
with  his  present  condition,  except  only  the  quality  of  the  act  he  was  meditating. 
Ill  that  he  was  under  the  overruling  dominion  of  a  morliid  imagination,  and 
conceived  that  he  was  acting  against  the  dictates  of  nature  in  obedience  to  the 
superior  commands  of  Heaven,  which  had  told  him  that  the  moment  he  was 
dead,  and  the  infant  with  him,  all  nature  was  to  be  changed,  and  all  mankind 
were  to  lie  redeemed  by  his  dissolution.  There  was  not  an  idea  in  his  mind, 
from  the  beginning  to  the  end,  of  the  destruction  of  the  king;  on  the  contrary, 
lie  always  maintained  his  loyalty;  lamented  that  he  could  not  go  again  to  tight 
his  battles  in  the  field;  and  it  will  be  proved  that  only  a  few  days  before  the 
periifd  in  (luestion,  being  present  when  a  song  was  sung,  indecent,  as  it  regarded 
tlie  person  and  condition  of  his  majesty,  he  left  the  room  with  loud  expressions 
of  indignation,  and  immediately  sang  'God  Save  the  King,'  with  all  the  enthu- 
siasm of  an  old  soldier  who  had  bled  In  the  service  of  his  country.  I  confess  to 
you,  gentlemen,  that  tliis  last  circumstance,  which  may  to  some  appear  iiisig- 
nillcant,  is,  in  my  mind,  most  momentous  testimony;  because,  if  this  man  had 
been  in  the  habit  of  associating  with  persons  inimical  to  the  government  of  our 
lountry,  so  that  mischief  might  have  been  fairly  ariiued  to  have  mixed  itself 
\\  ith  madness  (which,  by  the  by,  it  frequently  does) ;  if  it  could  in  any  way  have 
l)een  collected,  that  from  his  disorder,  more  easily  inflamed  and  worked  upon, 
lie  had  been  led  away  by  disaffected  persons  to  become  the  Instrument  of  wick- 
edness; if  it  could  have  been  established  that  such  had  been  his  companioiis  and 
habits,  I  should  have  been  ashamed  to  lift  up  my  voice  in  his  defence,  I  should 
have  felt  that,  however  his  mind  might  have  been  weak  and  disordered,  yet 


212 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


if  his  undcrstaiulina;  sufflciently  existed  to  be  methodically  acted  upon,  as  an 
instrinnent  of  malice,  I  could  not  have  asked  for  an  acciuittal;  but  you  find,  on 
tiie  contrary,  in  the  case  before  you,  iiiat,  notwithstanding  the  opportunity  which 
tiie  crown  has  had,  and  which  upon  all  such  occasions  it  justly  employs  to  detect 
treason,  either  ajrainst  the  person  of  the  kiujj;  or  against  his  frovernuieut;  not 
one  witness  has  been  able  to  fix  upon  the  prisoner  before  you  any  one  companion 
of  even  a  doubtful  description,  or  any  one  expression  from  which  disloyalty 
could  be  inferred,  whilst  the  whole  history  of  his  life  repels  the  imputation. 
His  couraije  in  defence  of  the  kintj  and  his  dominions,  and  his  affection  for  his 
von,  in  such  unanswerable"  evidence,  all  speak  aloud  ajjainst  the  presumption 
that  he  went  to  the  theatre  with  a  mischievous  intLnliou. 

"To  recur  again  to  the  evidence  of  Mr.  Ricliardson,  who  delivered  most  hon- 
orable and  impartial  testimony,  I  certainly  am  oblige  I  to  admit  that  what  a 
prisoner  says  for  himself,  when  coujjled  at  the  very  time  with  an  overt  act 
of  wickedness,  is  no  evidence  whatever  to  alter  the  obvious  (luality  of  the  act 
he  has  committed.  If,  for  instance,  I  who  am  now  addressing  you  had  llred  the 
same  pistol  towards  the  box  of  the  king,  and  having  been  dragged  under  the 
orchestra,  and  secured  for  criminal  justice,  I  had  said  that  I  had  no  intention  to 
kill  the  king,  but  was  weary  of  my  life,  and  meant  to  be  condemned  as  guilty, 
would  any  man,  not  himself  insane,  consider  that  as  a  defence?  Certainly  not, 
because  it  would  be  without  the  whole  foundation  of  the  pr'soner's  previous 
condition;  part  of  whieli  it  is  even  difficult  to  apply,  closely  and  directly  by  strict 
evidence,  without  taking  his  undoubted  insanity  into  consideration,  because  it 
is  his  un(|uestionable  insanity  which  alone  stamps  the  effusions  of  his  mind  with 
sincerity  and  truth. 

"  Tiie  iilea  which  had  impressed  itself,  '^ut  in  most  confused  images,  upon  this 
unfortunate  man  was  that  he  nuist  be  destroyed,  but  ought  not  to  destroy  him- 
self. He  once  liad  the  idea  of  tiring  over  the  king's  carriage  in  tlie  street,  but 
then  he  imagined  he  should  be  innnediately  killed,  which  was  not  tlie  mode  of 
propitiation  for  the  world;  and  as  our  Savior,  before  his  passion,  had  gone  Into 
the  garden  to  pray,  this  fallen  and  atllicted  being,  after  he  had  taken  the  infant 
out  of  bed  to  destroy  it,  returned  also  to  the  garden,  saying,  as  he  afterwards 
said  to  the  Duke  of  York,  '  that  all  was  not  over;  that  a  great  work  had  to  be 
finished;'  and  then  he  remained  in  praj'er,  the  victim  of  the  same  melancholy 
visitation. 

"  Gentlemen,  these  are  the  facts,  freed  from  even  the  possibility  of  artifice  or 
disguise;  becau.se  the  testimony  to  support  them  will  be  beyond  all  doubt;  and 
in  contemplating  the  law  of  the  country,  and  the  precedents  of  its  justice,  to 
whicli  they  nuist  l)e  applied,  I  find  nothing  to  challenge  or  (luestion.  I  approve  of 
them  throughout;  I  subscribe  to  all  that  is  written  by  Lord  ILvlk;  I  agree  with 
ill!  the  authorities,  cited  by  the  attorney-general  from  Lord  Cokk;  but  above 
.all,  I  do  most  cordially  aji,ree  In  the  instance  of  convictions  by  which  he  illus- 
trated them  in  his  able  address.  I  have  now  lying  before  me  the  case  of  Earl 
Ferrers;  uufiuestionably  there  could  not  be  a  sluulow  of  doubt,  and  none  appears 
to  have  been  entertained  of  his  guilt.  I  wish,  indeed,  nothing  more  than  to 
contrast  the  two  cases;  and  so  far  am  I  from  disputing  either  the  principle  of 
that  condenmation,  or  the  evidence  tliat  was  the  foundation  of  it,  that  I  invite 
you  to  examine  whether  any  two  instances  in  the  whole  body  of  the  criminal  law. 


I 


HADFIELO  S    AND    FEIJKEIJS     CA.nK!^. 


213 


Erskiiici's  Arituinont  in  tin-  ForiiuT. 


arc  more  iliaint'trically  opposite  to  cacli  otlior  tlian  tlic  case  of  Earl  Ferrers  and  tliat 
now  bi'fore  you.  Lord  Ferrers  was  divorced  from  ids  wife  i)y  act  of  Parliament; 
and  a  person  of  the  name  of  Johnson  who  had  i)een  his  steward,  had  t.iken  part 
with  the  lady  in  that  proceedinjr,  ami  had  conducted  the  business  in  carrvinu  tlie 
act  tliroui?ii  tlietwo  Houses.  Lord  Ferrers  consequently  wished  to  turn  him  out 
of  a  farm,  wliicli  lie  occupied  nnder  him;  but  his  estate  beinj^  in  trust  Johnson 
was  supjiorted  by  the  trustees  in  his  ptjssession;  there  were  also  some  differ- 
ences respectinii  eoal  mines;  and  in  conse(|ueuee  of  both  transactions,  Lord 
Ferrers  took  uj)  the  most  violent  resentment  aijaiust  him.  Let  me  here  observe, 
itentlenien,  that  this  was  not  a  resentment  founded  upon  any  illusion;  not  a 
resentment  forced  upon  a  distempered  mind  by  fallacious  imatjes,  butdependiiiij 
upon  actual  circumstances  and  real  facts;  and  acting  like  any  otlii-r  man  nnder 
tlie  influence  of  maliiiiiant  passions,  he  repeatedly  declared  that  he  would  be 
revenged  npon  Mr.  Johnson,  particularly  for  tlie  part  he  had  taken  in  depriving 
him  of  a  contract  respect  ing  the  mines. 

"Now  su])pose  Lord  Ferrers  could  have  showed  that  no  difference  had  ever 
existed  rejiardini!;  his  wife  at  all  —  that  Mr.  Johnson  had  never  been  his  steward, 
and  tliat  he  had  only,  from  delusion,  believed  so  wlieii  his  situation  in  life  was 
quite  different.  Suppose,  further,  that  an  illusive  imaiiination  had  alone 
suggested  to  him  that  he  had  been  thwarted  by  Johnson  in  his  contract  for  tiiese 
coal  mines,  there  never  having  been  any  contract  at  all  for  coal  mines:  in  short 
that  the  whole  basis  of  his  enmity  was  without  any  foundation  in  nature  and  had 
been  shown  to  have  been  a  morbid  image  imperiously  fastened  upon  his  mind. 
Such  a  case  as  that  would  have  exhibited  a  character  of  insanity  in  Lord  Ferrers 
extremely  different  from  that  in  wliicli  it  was  presented  by  the  evidence  to  liis 
peers.  Before  tliem  he  only  appeared  as  a  man  of  tnriiulent  passions;  whose 
mind  was  disturbed  by  no  fallacious  images  of  things  witliout  existence;  whose 
quarrel  with  Johnson  was  founded  upon  no  illusions,  but  npon  existing  facts; 
and  whose  resentment  proceeded  to  the  fatal  consummation  with  all  the  ordinary 
indications  of  mischief  and  malice;  and  who  conducted  his  own  defence  with 
the  greatest  dexterity  and  skill.  Who  then  could  doubt  that  Lord  Ferrers  was  a 
murderer?  Wlien  the  act  was  done  he  said,  '  I  am  glad  I  have  done  it.  He  was 
a  villain  and  I  am  revenged.'  But  wlien  he  afterwards  saw  that  the  wound  was 
probably  mortal,  and  that  it  involved  consequences  fatal  to  himself,  he 
desired  the  surgeon  to  take  all  possible  care  of  his  patient,  and,  conscious  of  his 
crime,  kept  at  bay  the  men  who  came  with  arms  to  arrest  him ;  sliowinji  from  the 
beginning  to  tlie  end,  nothing  that  tloes  not  generally  accompany  the  crime  for 
which  he  was  condemned.  He  was  proved  to  be  sane,  to  be  a  man  subject  to 
unreasonable  prejudices,  addicted  to  absurd  practices,  and  agitated  by  violent 
passions;  but  tlie  act  was  not  done  nnder  the  dominion  of  uncontrollable  dis- 
ease; and  wlietlier  the  mischief  and  malice  were  snbstantive,  or  marked  in  tlie 
mind  of  a  man  whose  passions  bordered  npon,  or  even  amounted  to  insanity,  it 
did  not  convince  the  lords,  that,  under  all  the  circumstances  of  the  case,  he  was 
not  a  tit  object  of  criminal  justice. 

"  In  the  same  manner,  Arnold,  who  shot  at  Lord  Onslow,  and  who  was  tried  at 
Kingston  soon  after  the  black  act  passed,  on  the  accession  of  George  I.,  Lord 
Onslow  having  lieen  vigilant  as  a  magistrate  in  suppressing  clubs,  which  were 
supposed  to  liave  been  set  on  foot,  to  disturb  the  new  government.    Arnold  had 


■ 


214 


THE    LE(iAL    Tt>T   Ol'    IXSAXITV. 


Notes. 


fre(iiioiitly  boon  heard  to  ileeliire  tliat  Lord  Onslow  would  ndn  his  country;  and 
altiiougli  he  appeared  from  the  evidence  to  be  a  man  of  most  wild  and  turbulent 
manners,  yet  tiie  people  ro\ind  (Inilford,  who  knew  him,  did  not,  in  general 
consider  him  to  be  insane.  His  counsel  could  not  show  that  any  morbid  delu- 
sion had  ever  overshadowed  his  understandinji —  they  could  not  show,  as  I  shall, 
that  just  before  he  shot  at  Lord  Onslow,  he  had  endeavored  to  destroy  his  own 
l)eloved  child.     It  was  a  case  of  human  resentment, 

"  I  nujiht  Instance,  also,  the  case  of  Oliver,  who  was  indicted  for  the  murder  of 
Mr.  Wood,  a  potter  in  .Staffordshire.  Mr.  Wood  had  refused  his  dauij;iiter  to  this 
man  in  marriaiie.  My  friend  Mr.  Milles  was  counsel  for  him  at  the  assizes.  He 
liad  been  em|)loyed  as  a  surfieon  and  apothecary  by  the  father,  who  forbid  lum 
Ids  house,  and  desired  him  to  brinj;  in  his  l)ill  for  payment;  when  in  the  agony 
of  disappointment  and  brooding  over  the  injury  he  had  suffered,  on  his  being 
admitted  to  Mr.  Wood,  to  receive  payment,  he  shot  him  upon  the  spot.  Tlie  trial 
occui)ied  a  great  i)art  of  the  day ;  yet  for  my  own  part  I  cannot  conceive  that  there 
was  anything  in  the  case  for  a  jury  to  deliberate  on.  IK:  vas  u  man  acting  upon 
existing  facts  and  ui)on  human  resentments  connected  wit.i  them.  He  was  at 
the  very  time  carrying  on  his  business,  .vliieli  reciuired  learning  and  reflection, 
and,  indeed,  a  reach  of  nnnd  beyond  the  ordinary  standard,  being  trusted  by  all 
wlio  knew  him  as  a  practiser  in  medicine.  Neither  did  he  go  to  .Mr.  Wood  under 
tile  influence  of  illusion;  but  he  went  to  destroy  the  life  of  a  man  who  was  not 
placed  exactly  in  the  circumstances  which  the  mind  of  the  crinunal  represented 
him.  He  went  to  execute  vengeance  on  him  for  refusing  his  daughter.  In  such 
a  case  there  might,  no  doubt,  be  passion  approaching  to  frenzy,  but  there  wanted 
that  cliaracteristic  of  madness  to  emancipate  him  from  crinunal  ju.^tice. 

"  There  was  another  instance  of  this  description  in  the  case  of  a  most  unhappy 
woman,  who  was  tried  in  Essex  for  the  murder  of  Mr.  Errington,  who  had 
seduced  and  abandoned  her  and  the  children  she  had  borne  to  him.  It  must  be 
a  consolation  to  those  wlio  prosecuted  her,  that  she  was  ac(|uitted,  as  she  is  at 
this  time,  in  a  most  undoubted  and  deplorable  state  of  insanity;  but  I  confess, 
if  I  had  been  upon  the  jury  who  tried  her,  1  should  have  entertained  great  doubts 
and  difllculties;  for  althougli  tlu'  unhappy  woman  had  before  exhibited  strong 
marks  of  insanity,  arising  from  grief  and  disappointment;  yet  .she  acted  upon 
facts  and  circumstances,  which  had  an  existence,  and  winch  were  calculated  upon 
the  ordinary  principles  of  human  action  to  produce  the  most  violent  resentment. 
Mr.  Errington  having  just  cast  her  off  and  married  another  woman,  or  taken  her 
under  his  protection,  her  jealousy  was  excited  to  such  a  pitch  as  occasionally  to 
overpower  her  understanding;  but  when  she  went  to  Mr.  Errington's  house, 
where  she  shot  him,  she  went  with  the  express  and  deliberate  purpose  of  shooting 
hini.  That  fact  was  unquestionable;  she  went  there  with  a  resentment  long 
rankling  in  her  bosom,  bottomed  on  an  existing  foundation;  she  did  not  act 
under  a  delusion  that  he  had  deserted  her  when  he  had  not,  but  took  revenge 
upon  him  for  an  actual  desertion;  but  still  the  jury,  in  the  humane  (consideration 
of  her  sufferings,  pronounced  the  insanity  to  be  predominant  over  resentment 
and  they  ac(iuitted  her. 

But  let  me  suppose  (whlcli  would  liken  it  totlie  case  before  us),  that  she  had 
never  cohabited  with  .Mr.  Erringtcni:  that  she  never  had  had  cliildren  by  him;  and 
consequently,  that  he  neitlier  had,  nor  could  possibly  have  deserted  or  injured 


i 


IIAUFIELD  S    CASE. 


215 


Erskine's  Argument. 


nitry;  and 
1  tnrbiilant 
in  goncriil 
irbid  dclu- 
,  as  [.shall, 
)y  Ills  own 

murder  of 
iUt  to  tills 
sizes,  lie 
orbkl  liini 
the  agony 
Ills  being 
Tlie  trial 
that  there 
etingupon 
le  was  at 
reflection, 
<ted  by  all 
ood  under 
J  was  not 
^presented 
.  In  sueli 
:re  wanted 

unhappy 

who  had 

must  be 

she  is  at 

I  confess, 

at  doubts 

d  strong 

ted  upon 

ited  upon 

^entmcnt. 

taken  her 

onally  to 

's  house, 

shooting 

lent  long 

d  not  act 

reveuirc 

Ideration 

sentment 

she  had 
liiin;  and 
r  injured 


her,  —  let  me  suppose,  in  short,  that  she  had  never  seen  him  In  her  life,  but  that 
her  resentment  had  been  founded  on  the  morbid  delusion  that  Mr.  Krriugton, 
who  had  never  seen  lier,  had  been  the  author  of  all  her  wrongs  and  sorrows;  and 
that,  under  tliat  diseased  impression,  she  liad  shot  him.  If  that  liad  been  the 
case,  gentlemen,  she  should  have  been  acquitted  upou  the  opening,  ami  no  judge 
would  have  sat  to  try  such  a  cause ;  the  act  ilst'lf  would  have  been  decisively 
characteristic  of  madness,  because  being  founded  upon  nothing  existing,  it  could 
not  have  proceeded  from  malice,  which  the  law  reiiwires  to  be  charged  and  proved, 
in  every  case  of  murder  as  the  foundation  of  a  conviction. 

"  Let  us  now  recur  to  the  cause  we  are  engaged  in,  and  examine  it  upon  these 
princliiles,  by  which  I  am  ready  to  stand  or  fall,  in  the  judgment  of  the  court. 

"  You  have  a  man  before  you,  who  will  ajipear,  upon  the  evidence,  to  have  re- 
ceived these  almost  deadly  wounds  which  I  described  to  you,  producing  the  im- 
mediate and  immovable  effects  whicli  the  eminent  surgeon,  whose  name  I  have 
inentioned,  will  prove  that  they  could  not  but  have  produced;  it  will  appear, 
that  from  that  period  he  was  visited  with  the  severest  paroxysms  of  madness, 
and  was  repeatedly  coiitlned  with  all  the  coercion  which  it  is  necessary  to  prac- 
tice upon  lunatics;  yet  what  is  (luite  decisive  against  the  imputation  of  treason 
against  tlie  person  of  the  king,  his  loyalty  never  forsook.  Sane  or  insane,  it  was 
ids  very  characteristic  to  love  his  sovereign  and  his  country,  although  the  delu- 
>i<)iis  which  distracted  him  were  sometimes  in  other  respects,  as  contradictory 
as  they  were  violent. 

"  Of  this  inconsistency  there  was  a  most  striking  instance  on  only  the  Tuesday 
hv'fore  the  Thursday  in  (|uestioii,  wlieii  it  will  lie  proved,  that  he  went  to  see  one 
Truelock,  who  had  Jeen  committed  by  the  Duki'  of  Portland  as  a  lunatic.  This 
man  had  taken  up  an  idea  tliat  our  Savior's  second  advent  and  the  dissolution  of 
all  human  things  were  at  hand,  and  conversed  in  tliis  strain  of  madness;  this 
mixing  itself  with  the  insane  delusion  of  the  prisoner,  he  immediately  broke  out 
upon  the  subject  of  his  own  propitiation  and  .sacritice  for  mankind,  although  only 
he  day  before  he  had  exclaimed,  that  the  Virgin  Mary  was  a  wliore;  that  Christ 
was  a  l)astard;  that  God  was  a  thief,  and  that  he  and  this  Truelock  were  to  live 
with  him  at  White  Conduit  House,  and  there  be  enthroned  together.  His  mind, 
in  short,  was  overpowered  with  distraction.  The  charge  against  the  prisoner  is 
the  overt  act  of  compassing  the  death  of  the  king,  in  firinga  pistol  at  his  majesty, 
an  act  ■which  only  differs  from  murder  inasmuch  as  tlie  bare  compassing  is  equal 
to  the  accomplishment  of  the  malignant  purpose;  and  it  will  l)e  your  oflici',  un- 
der the  advice  of  tlie  judge,  to  decide  by  your  verdict  to  wliieli  of  the  two 
impulses  of  the  mind  you  refer  the  act  in  question;  you  will  have;  to  decide 
whetlier  you  attribute  it  wholly  to  miscliief  and  malice,  or  wliolly  to  insanity,  or 
to  tlie  one  mixing  itself  with  tlie  other.  If  you  find  it  attributable  to  mischief 
iiiid  malice  only,  let  the  man  die.  The  law  demnnds  his  death  for  the  public 
•safety.  If  you  consider  it  as  conscious  malice  and  mischief  mixing  itself  with 
insanity,  I  leave  him  in  the  hands  of  the  court,  to  say  how  he  is  to  be  dealt  with; 
it  is  a  question  too  difficult  for  me.  I  do  not  stand  here  to  disturl)  the  order  of 
■<ociety,  or  to  bring  confusion  upou  my  country,  but  if  you  (ind  that  the  act  was 
I'ommitted  wholly  under  the  dominion  of  insanity;  if  you  an?  satisfied  tliat  he 
went  to  the  theatre  contemplating  his  own  destruction  only,  and  that  when  he 
tired  tlie  pistol,  he  did  not  maliciously  aim  at  the  jierson  of  the  king,  you  will 


21(5 


TIIK    LEGAL   TEST   OF    INSANITY. 


Notes. 


tlieii  1)1'  bound,  even  upon  llio  princlpk'  whit-li  the  atlorncy-iri'iicrul  himself 
hiiinanely  iiiul  honorably  stated  to  yon,  to  accpiit  this  unhappy  prisoner.  If,  in 
brinuliifj  these  conslcUjrations  hereafter  to  the  standard  of  the  evidence,  any 
donbts  slionld  oeenr  to  yon  on  the  snbjeot,  the  qnestlon  for  yonr  deeision  will 
then  be,  which  of  the  two  alternatives  is  the  most  probable,  —  a  dnty  which  you 
will  perform  by  the  exercise  of  that  reason  of  which,  for  wise  i)nrposes,  it  lias 
pleased  (lod  to  deiirivi"  the  nnfortnnate  man  whom  yon  are  tryinit;  your  sonnd 
understandinj^  will  easily  enable  you  to  distinsjnish  iullrmities  which  are  misfor- 
tunes from  motives  which  are  crimes.  Before  tlie  day  ends  tlio  evidence  will  be 
decisive  npon  this  subject. 

''There  is,  however,  another  consideration  which  I  ousht  distinctly  to  present 
to  you;  because  I  thinl<  that  more  turns  ni)on  It  than  any  other  view  of  the  sub- 
ject; namely,  whether  the  i)risoner's  defeiute  can  be  impeached  for  artilice  or 
fraud;  because  1  admit,  that  if  at  the  moment  when  he  was  a|)prehended,  there 
can  be  fairly  imputed  to  him  any  pretence  or  counterfeit  of  insanity,  il  would 
taint  the  whole  case,  and  leave  him  witliont  protection;  but  for  sucli  a  suspicion 
there  is  not  even  the  shadow  of  foundation.  It  is  repelled  by  the  whole  history 
and  character  of  his  disease,  as  well  as  of  his  life,  indt'pendent  of  it.  If  you 
were  trying  a  man  under  the  black  act,  for  shooting  at  another,  anil  there  was  a 
doubt  upon  the  question  of  malice,  would  it  not  be  important,  or  ratlier  decisive 
evidence,  that  the  prisoner  had  no  resentment  aij;alnst  the  pr()secut(n',  but  that 
on  the  contrary,  he  was  a  man  whom  he  had  always  loved  and  served?  Now  tli( 
prisoner  was  maimed,  cut  down,  and  destroyed  in  the  service  of  the  kiiiu. 

"  ( Jentlemen,  another  reflection  presses  very  stron<j;ly  on  my  mind,  whicli  I  llnd  it 
dinicnlt  to  suppress.  In  every  State  there  are  political  differences  and  partio 
and  individuals  di.saffected  to  the  .system  of  irovernment  under  whidi  they  live  as 
subjects.  Tliere  are  not  many  such,  I  trust,  in  this  country;  but  whether  there 
are  many  or  any  of  such  persons,  there  is  one  circumstance  wliich  has  jieculiarly 
distinjinished  his  majesty's  life  and  rei<;n,  and  which  is  in  itself  as  an  host  in  the 
prisoner's  defence;  since,  amidst  all  the  treasons  and  all  the  .seditions  which 
liave  been  chari^ed  on  reformers  of  }:tovornment  as  conspiracies  to  disturb  it,  no 
hand  or  voice  has  been  lifted  up  against  the  person  of  the  king;  there  have,  in- 
deed, been  unhappy  lunatics,  who,  from  ideas  too  often  mixing  themselves  with 
insanity,  have  Intruded  themselves  into  the  palace,  but  no  malicious  attack  has 
ever  been  made  upon  the  king  to  be  settled  by  a  trial;  his  majesty's  character 
and  conduct  have  been  a  safer  shield  than  guards,  or  than  laws,  (ientlemen,  I 
wish  to  continue  that  sacred  life,  that  best  of  all  securities;  I  seek  to  con- 
tinue It  under  that  protection  where  it  has  been  so  hjng  protected.  We  are  not 
to  do  evil  that  good  may  come  of  it;  we  are  not  to  stretch  the  law  to  hedge 
round  the  life  of  the  king  with  a  greater  .security  than  that  which  the  Divine 
Providence  has  .so  happily  realized. 

"  Perhaps  there  is  no  principle  of  religion  more  .strongly  inculcated  by  the 
sacred  Scriptures  than  by  that  beaulilnl  and  encouraging  lesM)n  oi  our  Savior 
himself  upon  confidence  in  the  divine  protection:  'Take  no  heed  for  you  ■ 
life,  what  ye  sliall  eat,  or  what  ye  shall  drink,  or  wherewithal  ye  .sliall  be  clotlu  •.! ; 
but  seek  ye  first  the  kingdom  of  God,  and  all  these  things  shall  bo  added  unto 
you.'  By  which  it  is  nndoul)to<lIy  not  intended  that  we  arc  to  disregard  the 
conservation  of  life,  or  to  neglect  the  means  necessary  for  its  sustenation;  nor 


HADFIKLI)  S    (ASK. 


217 


I'lTrcr's  CISC. 


tliiit  we  iirc  to  be  ciircli'ss  of  wliatcvcr  iiiiiy  coiitribiiti'  to  our  coinfort  and  liappi- 
ncss;  hilt  tliat  \vc  slioiilil  he  coiiti-iiti'tl  to  rccflvi'  tlifiii  as  tliry  an-  ^ivcii  to  iis, 
and  not  seek  tlicni  in  tin-  violation  of  tho  rnlc  and  order  appointed  for  the  p)v- 
crnnient  of  the  worhl.  On  this  principle  nolhinii  can  more  tend  to  the  .secnrily 
of  his  majesty  and  his  jjovernnient,  than  the  scene  which  this  day  «'xhil)its  in  the 
calm,  hnmane,  and  impartial  adndnistration  of  jnslice;  and  if  In  my  part  of  tliis 
go.lenm  duty,  I  have  in  any  manner  trespassed  npon  the  just  secnrily  provided 
for  the  pid)li<;  happiness,  I  wish  to  he  corrected.  I  declare  to  yon,  solemnly,  that 
my  only  aim  has  been  to  secnre  for  the  prisoner  at  the  bar,  wliose  life  and  deatli 
arc  in  the  balance,  that  he  slionld  be  judued  rittidly  by  tin- evidence  and  tlie  law. 
I  have  made  no  appeal  to  your  passions,  \on  have  no  riiiht  to  exercise  them. 
This  is  not  even  a  case  in  whicli.  If  the  prisoner  be  fonnd  liuilty,  the  royal  mercy 
slionld  1)0  connselled  to  interfere;  lie  l.s  either  an  acconntaljle  beinjr,  or  not  u< - 
conntable;  if  he  wasnnconscions  of  the  mischief  he  was  entailed  in,  tlu;  law  is 
a  corallary,  and  he  is  not  i^nilty;  bnt  if  when  the  evidence  closes,  yon  think  In' 
was  conscious,  and  maliciously  meditated  the  treason  lie  is  charixed  with,  it  is 
impossible  to  conceive  a  crime  more  vile  and  detestable:  and  I  slionld  consider 
the  kimt's  life  to  be  ill-attendod  to,  indeed,  if  not  protected  by  the  full  vitror  of 
the  laws,  which  are  watchful  over  the  security  of  the  meanest  of  his  sntijects.  It 
is  a  most  important  cousideration  Ijotli  as  it  rei;ards  the  prisoner,  and  the  coin- 
numity  of  wliidi  lie  is  a  memi)er.     Gentlemen,  I  leave  it  with  you." 

The  prisoner  was  ac(iuitted  by  the  jury  on  the  i^round  of  insanity  at  the  time 
tlio  act  was  committed.' 


'  On  the  trial  of  I.urd  Kcrrcrs  (Kerrevs* 
Case,  I'.l  How.  St.  Tr.  '.)l."i),  in  17(10,  for  tlie 
murder  of  Mr.  JolmsfMi,  tlio  solicitor  gen- 
end  laid  down  the  law  to  the  IIou.se  of 
Lords  as  follows:  My  lords,  the  law  of  Knj;- 
land  which  is  wisely  adapted  to  punisli 
crimes  with  severity,  for  the  protection  of 
mankind  and  for  the  honor  of  governuient 
])rnvides,  at  the  same  lime,  with  the  great- 
est equity,  for  the  imbecility  and  imperfec- 
tions of  human  nature.  Therefore,  My  Lord 
Chief  Justice  Ilalc,  the  weight  and  authority 
of  whose  writings  are  known  to  your  lord- 
ships and  to  the  whole  Kingdom,  explains 
the  law  upon  this  subject  at  large,  with  his 
usual  clearness  and  accuracy.  It  is  in  his 
first  volume  of  the  History  of  the  Pleas  of 
the  Crown  (fol.  30)  where  he  tracco  .".11  the 
distinctions  which  the  natuvo  of  this  rpies- 
tion  admits,  as  it  concern.'  tho  trial  of  crim- 
inals for  capital  otfences.  I  will  collect  the 
substance  of  what  he  says,  and  submit  it  to 
your  lordships,  as  founded  not  only  in  law 
and  in  practice,  but  in  the  most  unerring 
rules  of  reason  and  justice,  ttl}  .ords,  he 
begins  with  observing  that  "  there  is,  first, 
a  partial  insanity  of  mind,  and  there  is, 
secondly,  a  total  insanity.  First,  partial  In- 
sanity is  either  in  I'espect  to  things,  when 


they,  who  are  competent  as  to  some  matters, 
are  not  so  as  to  others ;  or  el.se  it  is  partial  in 
respect  to  the  flogree.  Tills  Is  the  condition 
of  many,  espcially  of  melancholy  persons. 
As  to  .such,  a  partial  Insanity  will  not  excuse 
tlu'iii;  for  (he  says)  that  persons  who  nii' 
felons  of  themselves,  and  other  felons  are 
under  a  degree  of  it  when  they  offend."  It 
is  dillicult  to  draw  the  line  which  divides 
perfect  from  partial  insanity;  and  he  refers 
it  to  the  discretion  of  the  judge  and  jury 
who  must  duly  weigh  and  consider  the 
whole,  "  lest  on  one  side,  there  be  .'i  kind  of 
inhumanity  towards  the  defects  of  human 
nature;  or  on  the  other  side,  too  niucli  in 
dulgence  be  given  to  great  crimes."  Then, 
my  lords,  he  speaks  of  the  general  rule, 
which  he  would  choose  to  lay  down,  as  the 
best  measure  of  his  own  judgment;  and  it 
is:  "That  a  person  who  has  ordinarily  as 
great  a  share  of  understanding,  as  a  child  of 
fourteen  years  of  age,  is  such  a  person  a* 
may  be  guilty  of  treason  or  felony.  Sec 
ondly,  as  to  total  insanity  or  alienation  of 
mind,  whicli  is  perfect  madness,  this  (Lord 
Hale  agrees)  will  plainly  excuse  from  the 
guilt  of  felony  and  treason."  But  he  dis- 
tinguishes under  the  head  of  total  insanity 
between  "  that  species  which  is  fixed  and 


218 


THE    LEOAL   TE8T   OF   INSANITY. 


Notes. 


§  6.  Test  of  Knowledge  ot  Right  and  Wrongr  in  the  Abstract.  —  Tlu'  next  tost 
wliicli  wo  lliid  was  fi'wvw  to  the  jury  liy  I-ord  Maxsi'iki.i*,  at  tlic  {J\t\  Hailcy, 
ill  IHlii,  on  till- trial  of  Hciiiiiiriiain.'  Tlie  prisoiu-i*  was  liulictfd  for  tlie  inurder 
of  lion.  Sponcir  I'crcivai,  lliiu  prime  minister  of  En;;land,  and  tlie  defence 
was  insanity.  JiOrd  Manskiki.d,  in  eiiaru;inij;  tlte  jury,  told  them,  tliat  in 
onier  to  snpportsucli  a  defence,  it  on;iiit  to  lie  proved  l)y  tlie  most  distinct  and 
un<|nestloiial)ie  evidence,  tiiat  the  prisoner  was  ineapahlc!  of  jiidjtinfX  l)etween 
rifjht  and  wroiisj;;  tiiat,  in  fact,  it  must  bo  proved  lieyond  ail  douht,  that 
at  tlie  time  lie  committed  tlie  atrocious  act  witli  which  he  stood  cliarjied,  he 
did  not  consider  that  murder  was  a  crime  apiinst  the  laws  of  (iod  and  nature; 
and  tliat  there  was  no  otiier  proof  of  insanity  which  would  excuse  nmrder  or  any 
other  crime.  Tliat  in  the  sjiecies  of  madness  called  "  lunacy,"  where  persons  are 
suljject  to  temporary  paroxysms,  in  which  they  are  yuilty  of  acts  of  extravagance, 
such  persons  conmilttinij;  crimes  when  they  are  not  affected  by  the  malady,  would 
be,  to  all  Intents  and  purposes,  nmenable  to  justice;  and  that  so  long  as  they 
could  distiiiiiuisii  jiood  from  evil,  they  would  be  aiisweral)le  for  their  conduct. 
And  that  in  tlie  species  of  insanity  in  which  the  patient  fancies  the  existence  of 
Injury,  and  seeks  an  opporliinity  of  {jratifyiiifj  reveufje  by  some  ho.stilc  act,  If 
siidi  a  person  l)e  capable  in  other  respects  of  distin'jjuishing  right  from  wrong, 
tiure  would  l)e  no  excuse  for  any  act  of  atrocity  which  he  might  commit  under 
this  description  of  derangement.     IJellingham  was  convicted  and  lianged.     In  the 


permanent,  anrt  hinacy  which  coinee  by 
liL'iiuil.s  oi-  fits."  Of  tliis  laller  liind  lie  ex- 
liresses  liim-self  lliiis;  "  Cnnios  (loinniittcct 
by  lunatics  in  siirh  (listi'iniiers,  are  under 
the  same  JudKnu-iit  as  llmse  conunittcd  by 
men  partially  insane.  The  per-^on  who  is 
absolutely  mad  for  a  day,  killing  a  man  in 
that  distemper,  is  ccpially  not  guilty,  as  if  he 
were  mad  without  iiilermis.^ion.  Hut  such 
liersone  as  have  their  lucid  intervals,  have 
usually,  in  those  intervals  at  least,  a  ('(onpe- 
tent  use  of  reason;  and  crimes  committed 
by  them  are  of  the  same  nature,  and  punisli- 
able  in  the  .same  manner  as  if  they  had  no 
such  defect."  My  lords,  afterwards,  he 
treats  of  that  insanity  which  arises  from 
drunkenness,  and  lays  it  down  that  "  by  the 
law  of  Knjfland,  such  a  person  shall  have 
no  privilege  from  their  voluntary  contracted 
madness,  but  shall  have  the  same  judgment, 
as  if  he  were  in  his  right  senses  (unless  it  be 
occasioned  by  medicine  unskilfully  admin- 
istered, or  poison  accidentally  taken)."  In- 
deed, if  by  such  practices  an  habitual  fixed 
frenzy  be  caused,  it  puts  the  man  in  the  like 
condition,  with  respect  to  crimes,  as  if  that 
frenzy  were  at  flrst  involuntarily  contracted. 
My  lords,  the  result  of  the  whole  reasoning 
of  this  wise  judge  and  great  lawyer  (so  far 
as  it  is  immediately  relative  to  the  present 
purpose),  stands  thus:  "If  there  be  a  total 
permanci.-t  want  of   reason,  it  will   acijuit 


the  prisoner.  If  tlieie  be  a  total  tem- 
porary want  of  it  when  the  offence  was 
committed,  it  will  ac(iuit  the  prisoner;  but 
if  there  be  only  a  partial  degree  of  in- 
sanity mixed  with  a  partial  degree  of  rea- 
son, not  u  full  and  complete  use  of  reason, 
but  (as  Lonl  Hale  carefully  and  emphati- 
cally expresses  himself)  a  compclcnt  use 
of  it,  sufllcient  to  have  restrained  these 
passion'!  which  produced  the  crime;  if  there 
be  tliougiit  and  design;  a  fa<-.ully  to  dis- 
tinguish the  nature  of  actions;  to  discern 
the  difference  between  moral  good  and  evil; 
tlicn,  upon  the  facts  of  the  offence  proved, 
the  judgment  of  the  law  must  take  pliicc. 
My  lords,  the  fpiestion  must  therefore  be 
asked:  Is  the  noble  prisoner  at  the  bar  to 
be  acipiitted  from  the  guilt  of  murder  on 
account  of  insaniiy?  It  is  not  pretended  to 
be  a  constant,  general  insanity.  Was  he 
uiwler  the  power  of  it  at  the  time  of  the 
offence  committed?  Could  he,  did  he,  at 
that  time  distinguish  between  good  and 
evi'?  The  same  evidence  which  establishes 
the  fact,  jiroves  at  the  same  time  the  capa- 
city and  intention  of  the  noble  prisoner. 
Did  he  weigh  the  motives?  Did  he  proceed 
with  deliberation?  Did  he  know  the  conse- 
<iuences?— Tlie  prisoner  was  convicted  and 
executed. 

'  Coll.  on  Lun.  C;!0. 


I'AIJTK  ILAK    UKJIIT   AND    WIJONO    TEt^T. 


21U 


1{.  y.  <»fforil  — U.  V.  Oxford. 


i 


sump  year  tho  sniiio  tist,  was  applied  Iw  Lk  ni.AX<',  J.,  on  the  trial  <»f  Bowler,'  — 
the  ability  to  illstluyulsli  l)etwt'cn  rljjlituml  wroiiy;  In  the  ub^traet- 

§  C.  Test  of  Knowledere  of  Right  and  Wrong  as  Applied  to  the  Particular 
Case.  —  A  few  years  later,  however,  this  t«st  was  somewhat  nuMlllled.  In  Jirxv. 
(tford,''  the  prisoner  was  indieted  for  the  nmrder  of  a  person  named  Chlsnall,  by 
shootiii};  him  with  a  j;nn.  The  defenee  was  Insanity.  It  appeared  that  the  pris- 
oner labored  under  a  notion  that  the  Inhabitants  of  IIa(llei;:li,  and  i)artienlarly 
Chlsnull,  the  deceased,  were  eontlnnally  Issninj^  warrants  against  him  with  In- 
tent to  deprive  hlni  of  his  liberty  and  life;  that  he  would  frequently  nnder  the  same 
notion,  abuse  persons  wliom  he  met  on  tho  street,  and  with  wiiom  he  liad  nevui- 
had  any  deallnjis  or  ae(iualntanee  of  any  kind.  In  ids  waist-eoat  puelxit  a  paper 
wasfonnd  lieaded,  "List  of  lladlei;;h  conspirators  against  my  life."  It  contained 
forty  or  fifty  names,  and  amonj^  them  "Chisnall  and  his  family."  Tliere  was 
also  found,  anionsj;  Ids  papers,  an  old  summons  about  a  rate,  at  the  foot  of  which 
he  had  written,  "This  is  the  be^iinnlnfi  of  an  attempt  against  my  lif«'."  Several 
medical  witnesses  deposed  to  their  belief,  that  from  the  evidence  that  they  had 
heard,  the  prisoner  labored  under  that  species  of  Insanity  which  Is  called  mono- 
mania; and  that  he  committed  the  act  while  und«'r  the  Influence  of  thatdi.sorder, 
;ind  mlfjht  not  be  aware  that  in  firin;?  the  jrun,  his  act  Involved  the  crime  of  mur- 
der. Lord  Lynpiit'Kst,  C.  B.  (in  summing  up),  told  the  jury  that  they  must  bo 
satisfied,  before  they  could  acfjuit  the  prisoner  on  the  <rround  of  insanity,  that  he 
did  not  know,  when  he  connnltted  the  act,  what  the  effect  of  It,  if  fatal,  would  be, 
with  reference  to  the;  crime  of  murder.  The  <|nestlon  was,  did  he  know  that  he 
was  committing  an  offence  aj^ainst  the  laws  of  (iod  and  nature?  His  lordship 
referred  to  the  doctrine  laid  down  in  Bdlinghairi* s  Case  by  Sir  James  Manskii'.i.d, 
and  expressed  his  complete  accordance  In  the  ob.servations  of  that  learned  judj;e. 
The  jury  acquitted  the  prisoner  on  the  frround  of  Insaiuty. 

In  Beg.  v,  Oxford,^  the  prisoner  was  Indicted  for  shootin<j  at  tho  Queen.  There 
was  strong  evidence  that  he  was  Insane.  Lord  Dk.nm.vx,  in  sunnning  U|)  to  the 
jury,  said:  "The  question  for  your  consideration  on  the  facts  are,  whether  the 
prisoner  did  fire  the  pistols  or  either  of  them  at  her  Majesty,  and  whether  these 
pistols,  or  either  of  them,  were  or  was  loaded  with  ball,  at  the  time  when  they 
wer.  so  fired.  These  are  matters  of  fact;  and  If  you  think  they  are  proved, 
then  you  will  have  further  to  inquiro  whether  the  prisoner  was  in  the  pos.session 
of  his  reason,  so  as  to  be  responsible  for  what  he  did.  These  matters  are  quite 
distinct,  and  I  think  it  will  be  the  better  way  to  abstain  from  making  any  remark 
upon  the  defence,  until  I  have  gone  through  the  facts  proved  on  the  part  of  the 
prosecution,  as  to  the  connnlssion  of  the  act  itself  (his  lordship  read  the  evidence 
for  the  prosecution,  commenting  occasionally  on  it  as  he  passed  along).  On  the 
point  whether  the  pistols  were  loaded  or  not,  he  observed,  one  witness  says, 
'  the  prisoner  was  about  five  or  six  yards  from  the  carriage  when  lie  discharged 
the  pistol,  and  on  the  right  side  of  it;  the  report  of  the  pistol  attracted  my  atten- 
tion; and  I  had  a  distinct  whizzing  and  buzzing  before  my  eyes,  between  my  face 
and  the  carriage;  '  another  witness  says,  'it  seemed  something  that  whizzed 
past  my  ear ;  as  I  stood,  it  seemed  like  son\ething  <|uick  passing  my  ear,  but  what 


'  Hex  f.  Bowler,  Coll.  on  I.un.  (173. 


-  5  ('.At  P.  lt;9  (ISil). 


9('.  &P.  ,V2.5(1840), 


220 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


I  could  not  say.'  Tliis  lathe  only  dii 'f!t  evidence.  I  have  no  mcansof  furnish- 
inj^you  with  any  observation  on  tliat  evidence;  it  is  not  matter  of  law,  and  you 
must  briuij  your  experience  to  l)ear  upon  it,  and  couple  it  •vith  tlie  otlier  facts  of 
the  case.  With  respect  to  tlie  letters  written  by  the  prisoner,  whether  he  really 
believed  in  the  existence  of  any  such  society  as  is  mentioned  in  them,  or  was 
only  amusing  himself  witli  supposini;  the  existence  of  such  a  society,  is  a  mat- 
ter wliich  Ave  cainiot  determine  otherwise  than  by  conjecture.  Then  the  ver- 
important  (piestion  comes,  whether  the  prisoner  was  of  unsound  mind  at  the 
time  when  tlie  act  was  done.  Persons  prima  fncic  must  Ix'  taken  to  be  of  sound 
mind  till  the  contrary  is  shown.  But  a  person  may  conunit  a  criminal  act,  and 
yet  not  be  responsil)le.  If  some  controllinsi  disease  was,  in  truth,  the  acting 
power  within  him  which  he  could  not  resist,  tlien  he  will  not  be  responsible. 
It  is  not  more  important  than  dillicult  to  lay  down  tlie  ride  l)y  which  you  are  to 
be  governed.  Many  cases  have  been  referred  to  upon  the  subject.  Hut  it  is  a 
sort  of  matter  in  which  you  ca.  mot  expect  any  precedent  to  be  found.  It  is  the 
duty  of  the  court  to  lay  down  the  rule  of  the  En.';Iish  law  on  the  subject;  and 
even  tliiit  is  dillicult,  l)ecausc  the  court  would  not  wish  to  lay  down  more  than  is 
necessary  in  the  particular  case.  As  to  IladfiekVs  Case,  Mr.  Erskiue  would  lose 
nothing  by  laying  down  the  rule  most  widely.  It  must  not,  therefore,  be  .said, 
that  the  admission  of  the  counsel  is  to  def'ide  the  matter.  On  the  part  of  the  de- 
fence it  is  contended  that  the  prisoner  at  tlie  bar  was  non  compos  mentis,  that  is 
(as  it  has  been  said),  unable  to  distlnguisli  riglit  from  wrong,  or  in  other  words, 
that  from  the  effect  of  a  diseased  nund,  he  did  not  know  at  the  time  that  tlie  a(;t 
he  did  was  wrong.  As  to  the  grandfather,  two  points  will  arise,  whether  his 
conduct  was  evidence  of  insanity,  or  only  of  violence  of  disposition;  and  if  of 
insanity,  whether  the  insanity  was  or  was  not  hereditary?  (His  lordship  read 
the  exidcnce  of  the  medical  and  other  witnesses  on  the  subject  of  insanity,  and 
said) :  It  my  be  tiiat  the  medical  men  may  be  more  in  the  haliit  of  observing 
cases  of  this  kind  than  other  person^';  and  there  may  l)e  cases  in  which  medical 
testimony  may  be  e.^sential;  but  I  cannot  agree  with  the  notion  that  moral  in- 
sanity can  be  better  judged  of  l)y  the  medical  men  than  by  others.  As  to  the 
father  of  the  prisoner,  the  question  will  lie,  whether  there  was  a  ri'al  absence  of 
the  power  of  reason  — the  power  of  controlling  hiinscif,  or  whether  it  was  only  a 
violent,  or  even  a  cruel  disposition;  and  th(>n,  upon  the  whole,  the  question  will 
be,  whether  all  that  has  been  proved  a'>ont  t!'e  prisoner  at  the  bar  shows  that  he 
was  insane  at  the  time  when  the  act  was  done,  whethi  r  the  evidence  given  proves 
,",  disease  in  the  mind  as  of  a  piTson  quite  incapalile  of  distinguishing  riglit  from 
wrong.  Something  has  been  said  about  the  power  to  contract,  and  to  make  a 
will.  But  I  think  these  things  do  not  snpitly  any  test.  Tlie  (|uestion  is,  whether 
the  prisoner  was  luhorng  under  tliat  species  of  insanity  which  satisfies  you  that 
he  was  quite  un.nvare  cf  the  nature,  character,  and  conscciuences  of  the  act  he 
was  committing,  or  in  other  words,  wiietlier  he  was  under  the  iutlnencv^  of  a 
diseased  mind,  and  was  really  unconscious  at  the  time  he  was  committing  the 
crime,  that  it  was  a  crime.  Witli  respect  to  tlie  letters  and  papers  they  may  be 
brought  forward  on  either  side  of  the  question." 

In  Beg.  v.  Iligginson,^  tried  in  1843,  tlie  prisoner  was  indicted  for  the  wilful 


mi 
ali 
be 
an 
an 


ali 


1  IC.  &K.  l;}0(l»t:i). 


PARTICUIiAR   RIGHT   AND    WRONG   TEST. 


221 


R.  V.  Viui'ihan  —  R.  v.  Biirtoii. 


murder  of  his  son,  Charles  Higginsoii,  a  child  five  years  old,  bj'  burjMiiji  hiin 
alive.  There  was  another  count  in  the  indictment,  which  charged  his  death  to 
be  by  a  mortal  fracture  of  the  skull.  The  facts  of  the  case  were  clearly  proved; 
and  it  appeared  that  the  child,  who  was  in  perfect  health,  was  taken  into  a  wood, 
and  there  buried  by  the  prisoner;  and  on  the  learned  judge  infiuiring  of  Mr. 
Greatrix,  the  surgeon  who  was  called  as  a  witness  fortiie  prosecution,  wliether 
a  fracture  of  the  skull  of  the  child  was  the  cause  of  his  death,  or  whether  the 
child  had,  after  the  fracture  of  the  skull,  l)een  suffocated  by  l)eing  buried  while 
alive,  the  prisoner  said  in  open  court :  "  I  put  hiu'  in  alive."  The  prisoner,  wlio 
liad  no  counsel,  made  no  defence,  and  said  he  hal  no  witness;  l)ut  Mr.  Brutton, 
the  governor  of  the  prison,  informed  Mr.  IJellamy,  the  clerk  of  assize,  that  it  had 
i)een  suggested  to  him  that  the  i)risoner  was  insane.  Tliis  being  .mentioned  by 
Mr.  Bellamy  to  the  leaniLd  judge,  his  lordship  desired  that  any  inTson  who  could 
depose  to  the  prisoner's  state  of  mind  would  come  into  the  witness-box. 

Two  of  tlie  officers  of  tlie  prison,  one  of  whom  had  known  the  prisoner  since 
his  committal  on  this  (May  20,  184:5),  and  the  other  of  whom  had  known  him  from 
the  time  of  their  l)eiiig  at  scliool  together  (the  prist  :er  being  twenty-six  yeiirs  of 
age),  being  sworn,  dei)osed  to  the  prisoner  l)eiiig  "of  very  weak  intellect,"  and 
Mr.  Hughes,  the  surgeon  of  the  jn-ison,  who  was  also  called,  l)y  direction  of  the 
learned  judge,  stated  that  tlie  p.'isouer  was  of  "  v(^ry  weak  intellect,  but  capable 
of  knowing  riglit  from  wrong." 

M.WLK,  J.  (in  summing  up,  after  adverting  to  the  facts  of  tlie  case),  said:  If 
you  are  satisfied  that  tlie  prisoner  eonimitted  this  offence,  but  you  are  also  satis- 
lied  by  the  evidence  that,  at  the  time  of  committing  the  offence,  the  prisoner  was 
so  insane  that  he  did  not  kv  w  riglit  from  wrong,  he  should  lie  acquitti'd  on  that 
ground;  but  if  you  tliink  t,  at  the  time  of  the  coinmittiiiii  of  the  offence,  In; 
did  know  right  from  wrong,  lie  is  responsible  for  his  acts,  although  he  is  of  weak 
intellect.     Verdict  —  guilty;  and  the  prisoner  was  afterwards  executed. 

This  test  was  finally  ailopted  by  the  answers  of  the  judges  to  the  House  of 
Lords  in  iVcA'ai/fttoi's  C«.f^,' wnere  they  laid  it  down:  "To  establish  a  defence 
oil  the  ground  of  insanity,  it  inustl)e  clearly  i)ro\  ■;!  tliat  at  the  time  of  the  commit- 
ting of  the  act,  the  party  accused  was  lalioriiig  i"  ler  such  a  defect  of  reason  from 
ilise.'ise  of  tlie  mind,  as  not  to  know  llie  nature  and  (|uality  of  tlie  act  he  was  (lo- 
ng, or  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what  was  wrong" 
and  this  test  is  now  the  settled  rule  of  the  Knglish  courts. 

In  It.  v.  Vntighan,'^ Tiy:DAU,  C.  J.,  said:  "  It  is  not  mere  eccentricity  or  singu- 
larity of  manner  that  will  sufflce  to  establish  the  plea  of  insanity;  it  must  be 
siiown  that  the  prisoner  liad  no  competent  use  of  his  understanding  so  as  to 
know  that  he  was  doing  a  wrong  tiling  in  the  particular  act  in  (piestion." 

Ill  lieg.  V.  Barton,^  the  prisoner  was  indicted  for  tlie  M'ilful  murder  of  Harriet 
Tiarton,  on  the  22d  of  June,  by  cutting  lier  tliroat  with  a  razor.  The  prisoner  and  the 
deceased  were  liusiiand  and  wife,  and  up  to  the  d.iy  named  in  tlie  indictment, 
he  liad  always  treated  her  and  their  cliildren  with  kindness.  On  the  aftfrnoon  of  the 
21st  of  June,  tlie  prisoner  and  liis  wife  were  seen  talking  with  tlieir  next-door 
neighbor  at  their  door  late  at  niglit,  and  at  four  o'clock  on  tlie  followliii:- morning  it 
was  discovered  tliat  he  had  cut  tlie  throats  of  his  wife  and  child,  and  that  he  had 


1  10  CI.  A;  F.  200. 


■^  1  CoxC.  ('.  80  (1844). 


'  3  CoxC.  C.  2-:,  (1848). 


222 


THE   LEGAL   TEST   OF    INSANITY. 


Notes. 


attempted  to  commit  suicide.    When  questioned  by  the  surgeon,  ho  exhibited 
no  sorrow  or  remorse  for  liis  conduct,  but  stated  tlmt  "trouble  and  dread  of 
poverty  and  destitution  had  made  him  do  it,  feariusj  that  his  wife  and  child 
would  starve    wlien    ho   was  dead."      Hu    also    said    that    ho    had    contem- 
plated suicide  for  a  week  past;    that  he  had  not  had  any  quarrel  with  his 
wife,   and  that  having  got  out  of  bed   to  destrcy  himself,  the   thought    had 
first  come  into  his  head  to  kill  his  wife  and  child;  that  he  had  at  first  attacked 
her  while  aslee])  In  l)ed,  and  that  she  got  away  from  him  and  rushed  to  the  win- 
dow, calling  for  hell);  that  he  then  killed  the  child,  and  seizing  his  wife  pulled 
her  backwards  towards  lilm,  in  which  position  he  had  cut  her  throat.    This  done 
he  next  tried  to  cut  his  own  throat,  bu^  his  powers  failed  him,  and  In   did  ■  '•( 
succeed,  though  he  wounded  himself  sevirely,  his  wife  having  fallen  down  dead 
by  his  side.     Tins  narrative,  coupled  with  a  knowledge  of  the  prisoner's  private 
circumstances,  induced  the  surgeon  to  form  the.  opinion  that  the  jirisoner,  at  the 
time  heconunitted  the  act,  had  not,  in  consequence  of  an  uncontrollable  impulse 
to  which  all  human  beings  were  suoject,  any  control  over  his  conduct.    The  de- 
sire to  intlict  pain  and  Injury  on  those  previously  dear  to  the  prisoner  was  in  it- 
self a  strong  symptom  of  insanity,  and  the  impossibility  of  res'stlng  a  sudden 
impulse  to  slay  a  fellow-being,  was  another  Indication  that  the  mind  was  insane 
There  was  not  necessarily  a  connection  between  homicidal  and  suicidal  monc 
mania,  though  it  would  be  more  likely  that  a  monomaniac,  who  had  contemplated 
suicide,  should  kill  another  person,  than  for  one  who  had  not  entertained  any 
such  feeling  of  hostility  to  his   own  existence.     Monomania  was  an  affection 
which,  for  tlie  instant,  completely  deprived  the  patient  of  a)I  so'f-control  in  re- 
spect of  some  one  particular  sul)ject  which  is  the  object  of  the  disease.     It  was 
true  that  the  prisoner  had  no  delusion  and  his  reasoning  faculties  did  not  seem 
to  be  affected ;  but  he  had  a  decided  monomania  evincing  itself  ni  the  notion  that 
he  was  coming  to  destitution.     For  that  there  was  some  foundation,  in  fact,  but 
it  was  his  (the  surgeon's)  decided  opinion  that  the  prisoner  was  in  an  unsound 
state  of  mind  at  the  moiueut  he  cut  his  wife's  throat,  though  he  would  not  be  so 
in  all  cases  of  murder. 

It  was  also  proved  that  on  the  21st  of  June  the  prisoner  had  caused  his  razor 
to  be  sharpened,  saying  that  he  wanted  to  give  it  to  some  friend.  Conch,  for  the 
prisoner,  submitted  that  the  jury  were  bound,  after  the  testimony  of  the  surgeon, 
to  ac  pnt  the  prisoner  on  tlu^  ground  of  insanity,  and  he  proceeded  to  show  by 
other  witnesses  that  the  prisoner  utu]  snffereda  severe  pecuniary  loss  not  long  be- 
fore the  occurrence  of  tlie  dreadful  event  now  the  subject  of  inquiry,  and  that  It 
had  produced  a  decided  effect  on  his  mind,  giving  rise  to  the  most  glo'>my  an- 
ticipations on  account  of  his  wife  and  family.  P.vkke,  B.,  told  the  jury  that 
there  was  but  one  question  for  their  consideration  now,  viz  ,  whether,  at  tin; 
time  the  prlsoiu"'  Inflicted  the  wounds  which  caused  the  death  of  Ids  wife,  he  was 
in  a  state  of  mind  to  be  made  responsible  to  the  law  for  her  murder.  That  would 
depend  upon  the  questu)n  whether  he,  at  the  time,  knew  Hie  nature  and  charac- 
ter of  the  deed  he  was  connnitting,  and  If  so,  he  Wv.cv,-  he  was  doing  wrong  in  so 
acting.  This  mode  of  dealing  with  tlie  defence  of  insanity  had  not,  ha  was  aware, 
the  concurrence  of  medical  mi'n  ;  but  he  must  nevertheless,  exi)ress  his  decided 
concurrence  with  Mr.  Baron  Hoi.i'k's  views  of  such  eases,  th  't  learned  judge  hav- 
ing expressed  his  opinion  to  be  that  the  excuse  of  an  irresistible  ImpuldC,  co- 


exil 

catl 

nofl 

Soil 

insl 

sldl 

imi| 

Sctl 

tlnj 

cor 

one 

cle 

ThJ 

effi 

fro 

the 

wa 

sta 

the 

of; 


rAKTICULAIJ    KIOHT    AM)    Wi;ON(f    TEST. 


223 


R.  V.  Davis. 


existins;  with  the  full  possession  of  roasonins  powers,  mislit  bo  urged  in  justifl- 
cntion  of  every  crime  known  to  the  law,  for  every  man  might  be  said,  and  truly, 
not  to  commit  any  crime  except  under  the  influence  of  some  irresistible  imjudse. 
Something  more  than  this  was  necessary  to  justify  an  acquittal  on  the  ground  of 
insanity,  and  it  would  be,  therefore,  for  the  jury  to  say  wlK'ther,  taking  itito  con- 
sideration all  that  the  surgeon  had  said,  which  was  entitled  to  gi'cat  weight,  the 
impulse  under  which  the  prisoner  had  conunitted  tins  deed  was  one  which  alto- 
gether deprived  him  of  the  knowledge  that  he  was  doing  wrong.    Could  he  dis- 
tinguish between  right  and  wrong?     Reliance  was    placed    on    the  desire  to 
commit  suicide,  but  tliat  did  not  always  evidence  insanity.    And  here  the  pris- 
oner was  led  to  attempt  his  own  life,  by  the  pressure  of  a  real  substantial  fact, 
clearly  apparent  to  his  perceptive  organs,  and  not  by  any  unsubstantial  delusion. 
The  fact,  however,  must  be  taken  into  the  account,  for  it  might  have  had  a  serious 
effect  on  the  mind  of  the  prisoner,  as  also  the  absence  of  an.v  attempt  to  escape 
from  justice,  and  the  want  of  all  sense  of  sorrow  and  regret  immediately  after 
the  dciilli  of  his  wife,  contiasted  with  his  more  natural  state  of  mind  after- 
wards wlien  he  felt  and  exjjressed  regret  and  sorrow  for  his  act.     These  circum- 
stances ougiit  all  to  be  taken  into  consideration;  but  it  was  ditflcult  to  see  how 
they  could  establish  the  plea  of  iusauity  in  a  case  v,  liere  there  was  a  total  absence 
of  all  delusion. 

Guilty  —  sentence  of  death  passed. 

In  Eer/.  V.  Z>rtrj.v,'  tried  before  Cuompton,  J.,  in  ls.-,8,  the  prisoner  was  indicted 
fur  maliciously  setting  lire  to  a  building  witli  intent  to  injure  the  o\vner.  There 
was  evidence  that  tiie  prisoner  was  insane;  among  otlier  tlnniis  he  had  told  a 
witness  that  he  had  tried  to  hang  himself  on  a  trei'  near  the  liouse,  and  set  fire  to 
the  tree.  Cuo.mi'TOX,  J.,  instructed  tlie  jury  as  follows:  "  It  is  not  ne<'essary  for 
tiie  prosecution  to  prove  express  malice  in  tlie  prisoner.  Malice,  in  this  case, 
does  not  mean  that  he  hai'  a  particular  spite  r.ucainst  the  prosecutor.  If  a  man 
being  in  his  right  nniid  birus  property  belonging  to  auotlier,  a  jury  ouirlit  to 
infer  malice  from  the  act  itself.  Do  you  tlnd  that  the  prisoner  set  the  place  on 
Are?  If  you  do,  are  you  of  the  opinion  tliat  he  knew  ri'j,ht  from  wrong?  It  is 
not  sufikient  that  you  should  think  tl  at  he  did  it  from  l)eing  in  a  r-ckless  depressed 
state  of  mind.  You  must  find  that,  irom  mental  Misease,  he  did  not  know  right 
from  wrong.  There  seems  to  me  ver\  little  evidence  to  prove  that.  Ills  statement 
about  tlie  tree,  which  appears  to  be  true,  is,  however,  a  circui.istance  for  you  to 
take  into  consideration  in  detiTmiiiiiiir  his  state  of  mind.  Tliere  Is  no  evidence, 
except  his  own  statement  to  the  coiistal)le,  tnat  he  did,  in  fact,  set  fire  to  tlie 
liovel.  Arc  you  satisded  from  that  fonfessiin  that  he  really  did  the  act?  If  so, 
(lid  he  know  right  from  wrong?  The  fact  that  he  was  attempting  to  "xtingui^h 
the  fire,  do"s  not  necessarily  show  that  he  did  not  cause  ii,  or  that  he  did  not 
know  right  from  wrongwhen  he  did  it.  He  nii<rht  have  done  so  maliciously,  in 
tlie  sense  I  liave  explained  to  you,  and  knowing  rii^lit  from  wrong,  but  Iinme- 
iliately  afterwards  have  repented  and  tried  to  prevent  the  iniurious  consequence.'? 
of  his  own  act."  The  jury  in  the  first  instance  found  the  prisoner  not  guilty  on 
tlie  ground  of  insjiiiity;  but  in  answer  to  the  judge,  said  that  they  tlioiiixht  the 
prisouer  was  hi  such  a  state  of  mind  that  he  did  not  know  that  the  effect  of 

1  1  F.  &F.  ti9(I*5S). 


224 


THE    LEGAI.    TKST    OF    INSANITY. 


Notes. 


^■*  w% 


A 


m. 


hurninjr  tlic  hovol  would  be  to  injure  any  other  person.  Chompton,  J.  —  That  is  a 
verdict  of  not  •rtiiliy. 

In  Jicfj.  V.  Richards,^  tlie  prisoner,  aged  sixty-five,  was  charged  with  murdering 
lier  husband,  age  seventy,  l)y  ijeating  liini  ai)out  tlie  liead  witli  Ins  crutches. 
Tlie  gen-'ral  eviflence  for  the  defence  was  jirineipally  of  weal<ness  of  mind  and 
lowness  of  spirits.  A  medical  witness  stated  that  the  prisoner  was  suffering  from 
that  form  of  nu'utal  disease  in  which  slie  would  be  subject  to  paroxysms  or  tits 
of  madness,  and  that  from  his  knowledge  of  her  and  from  tlie  evidence,  he 
thought  it  likely  she  Avas  under  the  influence  of  one  of  those  paroxysms  when  the 
offence  was  committed,  though  there  were  no  symptoms  of  this  having  been  the 
case.  There  was  some  sliglit  evidence  of  the  prisoner  having  once  made  an 
attempt  to  drown  herself.  She  said  she  liad  killed  tlie  deceased  to  get  rid  of 
him  because  lie  was  dirty;  that  she  had  intended  to  do  it  ■md  was  not  sorry  for 
it.  Ckowukk,  J.,  (to  tiie  jury)  after  stating  the  law  as  to  insanity:  It  is  for 
you  to  say  whether,  at  the  time  of  the  act  done  the  prisoner  knew  the  nature  of 
the  act  done,  or  that  it  was  a  wrong  act.  If  she  were  in  a  state  of  mind  in  whicli 
she  might  have  destroyed  herself  as  she  formerly  attempted,  you  may  probably 
think  she  would  not  be  responsible  for  her  acts,  but  tlie  onus  of  proof  as  to  this 
lies  upon  her. 

A  medical  witness  was  saying  that  he  did  not  consider  the  prisoner  to  be  re- 
sponsiljle  for  ner  acts, 

CiH)Wi)i:u,  J.  —  We  do  not  want  your  opinion  as  to  her  responsibility,  simply  give 
your  opinion  as  a  skilled  witness,  from  what  you  know  of  the  prisoner,  and  from 
the  evidence  you  liave  heard  of  the  state  of  her  mind. 

The  verdict  was  not  guilty.  The  circumstances  of  this  case  were  peculiar. 
The  prisoner  appeared  to  be  very  infirm  and  much  older  than  she  was.  It  was 
suggested  that  she  was  not  pliysically  capable  of  the  violence  causing  the  death, 
except  on  the  supposition  of  the  additional  strength  imparted  by  a  state  of  frenzy. 

In  lief/.  V.  Toiciiley,''  the  prisoner  was  tried  before  Maktix,  B.,  forthe  murder  of 
Elizabeth  Goodwin,  a  female  to  whom  he  had  been  formerly  engaged  to  be 
married,  but  who  had  a  little  while  before  broken  off  the  engagement.  Mautin, 
B.,  charged  the  jury  as  follows:  The  act  of  the  prisoner  amounted  to  murder, 
subject  only  to  the  question  of  insanity.  No  one  could  doubt  that  the  prisoner 
knew  what  he  was  doing  and  that  it  would  cause  death.  Unless  he  was  insane, 
therefore,  under  tlnse  circumstances  he  was  guilty  of  murder.  No  word  was 
more  vague  than  insanity.  Probably  there  was  not  one  of  the  jury  but  was 
acquainted  with  some  man  who  was  in  the  habit  of  doing  extraordinary  actions, 
and  of  whom  people  said,  "  Why  that  man  must  be  Insane!  "  Two  years  ago 
an  Investigation  took  place  into  the  condition  of  mind  of  a  gentleman  from  the 
eastern  part  of  the  county.  There  was  a  long  inquiry,  whicli  excited  great 
public  interest,  and  there  was  a  great  divergence  of  opinion  among  medical  men. 
Great  eccentricity  of  conduct  on  the  part  of  that  person  was  shown,  yet  there  was 
nothing  to  relieve  hiin  from  criminal  responsibility.  Probably  he  was  not  the 
wisest  of  men,  yet  he  was  of  suflicient  intellect  to  take  care  of  himself  and  avoid 
doing  injury  to  others.  There  was  a  somewhat  similar  case  at  the  last  Glouces- 
ter assizes  in  which  a  young  lady  was  under  the  impression  that  a  riumber  of 


'  1 


'  IF.  &F.  87  (1858). 


2  3  F.  A  F.  839  (18««). 


J.  — That  is  a 

th  murdering 
his  crutches, 
of  mind  and 
ufferingfrom 
xysnis  or  fits 
evidence,  lie 
snis  wlicn  tlie 
ing  been  the 
lice  made  an 
to  get  rid  of 
not  sorry  for 
ity:  It  is  for 
Liu;  nature  of 
uind  in  whicli 
nay  probably 
oof  as  to  this 

iner  to  be  re- 

V,  simply  give 
aer,  and  from 

ere  peculiar, 
was.  It  was 
g  the  death, 
ite  of  frenzy, 
he  murder  of 
[laged  to  be 
t.    Mahtin, 

to  murder, 

the  prisoner 

was  insane, 

\o  word  was 

ry  but  was 

ary  actions, 

o  years  ago 

an  from  the 

xeited  great 

nodical  men. 

et  there  was 

ivas  not  the 

If  and  avoid 

ist  Glniices- 

Vi umber  of 


PARTICULAR   RIGHT   AND   WRONG   TEST. 


225 


K.  «.  Townlev. 


ladies  had  formed  an  unfounded  dislike  to  her.    In  all  probability  she  was  labor- 
ing under  a  delusion  with  respect  to  those  persons,  yet  she  was  as  subject  to  the 
criminal  law  as  any  person  in  that  court.    What  the  law  meant  by  an  insane  man 
was  a  man  wlio  acted  under  delusions,  and  supposed  a  state  of  things  which  did 
not  exist,  and  acted  thereupon.    A  man  who  did  .so  was  under  a  delusion,  and  a 
person  so  laboring  ^vas  insane.     In  one  species  of  insanity  the  patient  lost  his 
mind  altogether  and  had  nothing  but  instinct  left.     Such  a  person  would  destroy 
liis  fellow-creatures  as  a  tiger  would  his  prey,  by  instinct  only.    A  man  in  that 
state  had  no  mind  at  all,  and,  therefore,  was  not  criminally  responsible.    The 
law,  however,  went  further  than  that.    If  a  man  laboring  under  a  deli.s'on  did 
something  of  which  he  did  not  know  the  real  character,  something  of  the  effect 
and  conse(iuences  of  which  he  was  ignorant,  he  was  not  respousiljle.    An  ordi- 
nary instance  of  snch  a  delusion  was  when  a  man  fancied  himself  a  king  and 
treated  all  around  him  as  his  subjects.     If  such  a  man  were  to  kill  another  under 
the  supposition  that  he  was  exercising  his  prerogative  as  a  king,  and  that  ho  was 
called  upon  to  execute  the  other  as  a  criminal  he  would  not  be  responsible. 
The  result  was  that,  if  the  jury  believed  that  at  the  time  the  act  was  committed 
the  prisoner  was  laboring  under  a  delusion,  and  believed  that  he  was  doing  an 
act  which  was  not  wrong,  or  of  which  he  did  not  know  the  consequences,  he 
would  be  excused.     If,  on  the  other  hand,  he  well  know  that  his  act  would  take 
away  life,  that  that  act  was  contrary  to  the  law  of  God  and  punishable  by  the 
law  of  the  land  he  was  guilty  of  murder.    That  was  the  real  question  they  had 
to  try.     In  his  opinion  the  law  upon  the   subject  was  best  laid  down  by  Justice 
Lk  Blanc,  as  able  a  judge  as  ever  sat  on  the  bench.    Justice  Le  Blanc,  in  the 
lase  alluded  to,  observed  to  the  jury  that  it  was  for  them  to  determine  whether 
the  prisoner,  when  he  committed  the  offence  with  which  he  stood  charged,  was 
incapable  of  distinguishing  right  from  wrong,  or  under  the  influence  of  any 
illusion  which  rendered  his  mind  at  the  moment  insensible  of  the  nature  of  the 
act  he  was  about  to  commit;  since  in  that  case  he  would  not  be  legally  responsi- 
ble for  his  conduct.    On  the  other  hand,  provided  they  should  be  of  the  opinion 
that  when  he  committed  the  offence  he  v.'as  capable  of  distinguishing  right  from 
wrong,  and  not  under  the  influence  of  such  an  illusion  as  disabled  hiin  from  dis- 
cerning tliathe  was  doing  a  wrong  act,  he  would  be  amenable  to  the  jusllceof  his 
country  and  guilty  in  the  ej'e  of  the  law.    That  in  his  (Baron  AIautin's)  opinion 
was  a  correct  statement  of  the  law.     He  should  not  allude  to  Bfllinyhmn's  Cai^e, 
because  many  were  of  opinion  that  that  was  an  unsatisfactory  trial.     In  Offurd's 
Case,  the  late  Lord  Lyxpiukst,  told  the  jury  that  they  must  be  satisfied,  before 
lliey  could  acquit  the  prisoner  on  the  ground  of  insanity,  that  he  did  not  know 
when  he  committed  the  act  what  the  effect  of  it,  if  fatal,  would  be.    With  refer- 
ence  to  the  crime  of  murder,  the  question   was,  did  he   know  that  he   was 
CDinmitting  an  offence  against  the  laws  of  God  and  nature?     In  Oxford^s  Case, 
Lord  Dkn.man  said:  «'  Something  has  been  said  about  the  power  to  contract  and 
to  make  a  will ;  but  I  think  that  those  things  do  not  supply  any  test.    The  ques- 
tion is,  whether  the  prisoner  was  laboring  under  that  species  of  insanity  which 
(satisfies  you;  that  he  was  (piite  unaware  of  the  nature,  character  and  conse- 
quences of  the  act  Avliich  he  was  committing,  or  in  other  words,  whether  he  was 
under  the  influence  of  a  diseased  mind,  and  was  really  unconscious  at  the  time 
lie  wag  committing  the  act  that  it  was  a  crime."     His  lordship  continued  that  the 


226 


TUK    LKGAL   TEST    OF    IXSAMTY. 


Notos. 


jury  must  judge  of  the  act  by  the  prisoner's  statements  and  by  what  he  did  at  the 
time.  Unless  tlu-y  were  satisfied,  —  and  it  was  for  tlie  prisoner  to  nial^e  it  out,  — 
tliat  he  did  not  know  tlie  conse(iuenees  of  his  act,  or  tliat  It  was  ai^ainst  tlie  law 
of  God  and  man,  and  would  subject  him  to  punislunent,  lie  was  guilty  of  nnirder. 
His  lordship  tlien  went  most  carefully  through  the  evidence.  TIio  prisoner's 
letters  appeared  to  be  as  sensible  letters  as  he  had  ever  read.  Again,  tiie  rea.son 
the  prisoner  gave  for  his  act,  was,  "  she  should  not  have  proved  false  to  me." 
Now,  if  his  re.al  motive  was  th-*  he  conceived  himself  to  have  been  ill  used,  and 
either  from  jealousy  of  the  i.  i  who  was  preferred  to  him,  or  from  a  desire  of 
revenge  upon  her,  committed  the  act,  that  would  be  murder.  Those  were  the 
very  passions  which  the  law  required  men  to  control,  and  if  the  deed  was  done 
under  the  inlluence  of  those  passions  there  was  no  doubt  that  it  was  nmnler. 
The  j)risoner's  e.ipression  that  he  should  be  hanged  for  it  indicated  that  he  knew 
the  consequences  of  his  act.  Another  reason  he  gave  for  what  he  had  done  was, 
"The  woman  who  deceives  me  must  die."  If  a  young  lady  promised  to  marry  a 
man  and  then  changed  her  mind,  it  might  truly  be  said  that  she  deceived  Iiini; 
)>ut  wliat  would  be  the  conse(iuenees  to  society  if  men  wert;  to  say  every  woman 
who  treated  tliem  in  that  way  should  die,  and  were  to  carry  out  these  views  by 
cutting  her  tliroat?  The  prisoner  claimed  to  exercise  the  .same  power  over  a 
wife  as  he  could  lawfully  exerci.se  over  a  chattel,  but  that  was  nota  delusion  nor 
like  a  delusion.  It  was  the  conclusion  of  a  man  who  had  arrived  at  results  dif- 
ferent from  those  generally  arrivid  at,  and  contrary  to  the  laws  of  God  and  man, 
but  it  was  not  a  delusion.  Evidence,  indeed,  had  been  given  of  au  actual 
delusion  in  the  prisoner's  mind  in  supposing  that  there  was  a  conspiracy  against 
liim.  This  was  an  ajitand  conmion  instance  of  delusion.  There  was  alsoevidence 
of  insanity  in  the  maternal  line,  and  it  was  true  that  insanity  was  hereditary  and 
did  descend  in  families;  the  object  of  that  was  to  show  that  it  was  possible,  and 
not  unlikely  that  the  heredit.'iry  taint  might  exist  in  the  prisoner.  All  the  evi- 
dence, however,  failed  to  show  the  existence  of  any  delusion  in  the  prisoner's 
mind  which  could  explain  this  act.  None  of  his  family  conceived  him  to  be  mad 
It  was  clear  that  such  an  idea  had  not  entered  into  their  mind  or  they  would  not 
have  recommended  him  to  go  and  see  Miss  Goodwin.  They  treated  him  as  sane 
from  beginning  to  end,  as  a  proper  person  to  contract  matrimony  and  re-engage 
the  affections  of  this  young  woman.  The  account  of  his  state  of  mind  upon  re- 
ceiving her  letters  was  most  probably  correct.  Mo^t  men  would  probably  suffer 
in  the  same  way  under  similar  circumstancs.  It  had  been  said  by  one  of  the 
witnes.ses  that  the  prisoner  did  not  know  the  difference  between  good  and  evil. 
If  that  was  a  *-<t  of  insanity,  many  men  were  rried  who  did  not  know  that 
difference.  In  rruth  it  was  no  test  at  all.  The  itk-a  of  a  conspiracy  was  a  delu- 
sion; but  the  mere  setting  himself  up  against  the  laws  of  (Jod  and  man  was  not 
a  delusion  at  all.  Tlie  question  for  the  jury  wa<,  was  the  prisoner  ins.ine,  and 
did  he  do  tlie  lot  under  a  delusion  believing  it  to  be  other  than  it  was?  If  he 
knew  what  lie  was  doinn,  ajid  tliat  it  was  likely  to  cause  death,  and  was  contrary 
to  the  law  of  (iod  and  maiu  and  that  the  law  directed  that  persons  who  did  such 
a<"ts  should  be  punished,  he  w»s  guilty  of  murder. 

Verdict,  (fnilty. 
In  Rfig.  V.  Law,'  tried  before  Erlf,  C.  .T.,  in  1862,  the  prisoner,  a  female,  who 


2  V.&  K.  8,36    1862). 


I'AUTICULAIl   KKHIT   AND   WIiON(}   TKST 


90 


•Ji 


i? 


11.  V.  Law  —  U.  V.  Southey. 


rtnxlty. 
lale,  who 


was  indicted  for  tlio  murder  of  lier  liusbaiid   and  ciiild,  was  a  person  of  weak 
intt'llfct,  wlio  liad  l)een  inarrietl  to  a  ialjorer,  her  dec<'ased  luisband,  for  seven 
years,  and  liad  liad  four  cliildren  by  luni,  of  whom  the  ehild  slie  liad  liillod  was 
tiie  j'oungest,  and  was  only  a  few  montlis  old.     After  lier  coiillnement  slie  had 
been  ill  some  time,  and  for  want  of  food  and  necessaries  became  in  the  lust  de- 
gree prostrated  by  physical  weakness.     Her  husband  having  been  .sent  to  prison 
for  a  month  for  some  trilling  offence,  she,   with  her  child,  had  gone  into  the 
work-house,  whither,  on  account  of  her  weakness,  she  had  to  be  taken  inacarriage, 
while  there,  she  was  attended  by  the  doctor  for  a  female  disoriler,  which  caused 
agreat  loss  of  blood  and  by  exhausting  the  vessels  of  the  brain,  tended  to  weaken 
it,  and  so  led  to  mental  weakness,  as  well  as  to  the  utmost  nervous  depression. 
She  at  times  talked  wildly  of  having  seen  devils,  a  bright  light,  etc.,  and  the  doc- 
tor judged  these  to  be  natural  and  probable  results  of  the  causes  mentioned,  and 
the  chaplain,  as  well  as  the  doctor,  judged  these  to  be    signs  of  insanity.     It 
was  even  thought  that  she  must  be  sent  to  a  lunatic  asylum,  but  the   physical 
symptoms  abated  under  medical  treatincnit,  and  with  them  the  mental  symptoms 
likewi.se  began  to  disa|)pear.     They  would,  however  (the  doctor  thought),  be 
likely  to  re-appear  if  anything  occurred  to  re-exeile  the  i)hysical  disorder  of  the 
system.     Still,  when  the  month's  imprisonment  of  the  husbaiul  had  expired,  and 
he  api)lied  for  his  wife,  it  was  doubled  whether  she  ought  to  be  sent  home.     How- 
ever, she  did   so,  on  the  14th  of  January,  after  spending  the  day  with  her  hus- 
band's parents.     While  there,  they  were  reading  the  JJible  together,  and  in  making 
remarks  on  Christ's  temptation,  she  said  she  had  been  temi)ted  by  the  devil 
sometimes  to  cut  her  husband's  throat,  or  her  own,  and  she  aid  do  so  very  likely 
some  day.    They  went  home  in  the  evening,  ami  early  next  morning  she  roused 
her  mother,  telling  her  at  first  that  some  one  had  cut  her  husband  all  to  pieces,  and 
then  tliat  she  had  killed  him ;  and  .she  subsequently  said  slie  had  killed  him  with  a 
chopper  as  he  lay  asleep,  and  afterwards  killed  the  child;  and  that  while  she  was 
doing  it,  she  heard  the  devils  blundering  up  and  down  the  stairs,  and  making  a 
dreadful  noise,  etc.     Upon  this  evidence,  without  calling  on  the  prisoner's  coun- 
sel, Eklk,  C.  J.  (to  the  jury)  :  Are  you  of  the  oi)lnion  that  the  prisoner  was  iu 
a  state  to  know  that  she  was  doing  what  was  wrong.     There  was  u  morbid  action 
of  the  brain;  there  was  a  state  of  disease  resulting  from  cluldbirth,  and  other 
cau.ses  which  might  lead  to  insanity;  and  tliere  were  before  the  act  in  question, 
delusions  of  the  senses,  which  the  medical  men  consider,  and  might  well  consider, 
symptoms  of  insanity.     She  seems  to  have  fancied  she  saw  and  heard  devils 
even  wbnn  no  one  was  iu  the  house  alive  but  herself.     \i  so,  that  was  a  delusion 
of  .such  a  nature  as  to  indlctite  in.sanity.     Her  killing  her  child  at  the  same  time 
was  no  doid)t  under  the  same  influence.    It  is  for  you  to  say  whether  upon  such 
evidence  you  consider  she  was  in  such  a  state  as  to  know  the  nature  of  her  ac- 
tions, or  to  be  aware  that  she  was  committing  a  crime.    If  not,  then  it  would  be 
proper  to  actiuit  her,  on  the  ground  of  insanity. 

The  jury  at  once  found  a  verdict  of  not  guilty,  on  the  ground  of  insanity. 

In  Reg,  v.  Sotithcy,^  tried  before  Mkllok,  J.,  in  i8(i5,  tlie  prisoner  was  indicted 
for  the  murder  of  his  wife.  He  pleaded  insanity  at  the  time  and  also  present  in- 
sanity.   It  appeared  that  his  real  name  was  Forwood,  that  he  had  been  married 


1  4  F.  &F.  Gt. 


228 


THE   LKGAL   TEST  OF   INSANITY. 


Notes. 


fourteen  years  ago,  and  was  then  carrying  on  business  at  Ranisgate.    Two  or 
tliree  years  after  tlie  marriage,  liowcver,  lie  left  tluit  place,  leaving  his  wife  and 
child  there  behind  him,  and  went  to  London,  where  he  lived  by  the  name  of 
Southey     Since  then  he  '.ad  never  seen  his  wife,  or  leturned  to  Ramsgate.    In 
the  meantime,  it  appeared  that  he  had  become  a  marker  at  billiards,  and  he  had 
formed  a  connection  with  a  Mrs.  White,  and  while  this  connection  subsisted  a 
year  or  two  ago,  he  got  her  to  go  and  see  the  Earl  of  Dudley,  with  a  view  to  in- 
duce him  to  pay  a  large  sum  of  money  alleged  by  the  prisoner  to  have  been  lost 
to  him  by  the  earl's  l)rother  at  billiards.    Tlie  demand  was  refused;  the  demand 
came  before  the  police  court,  as  an  attempt  to  extort,  or  Intimidate ;  and  the 
prisoner,  last  year,  wrote  a  long  letter  to  a  daily  paper,  containing  a  perfectly 
coherent  history  of  his  life,  and  an  account  of  the  particular  matter.    After  this, 
shortly  before  the  murder  in  question,  Mrs.  Wliite  left  him  and  went  to  Australia; 
and  the  prisoner,  wlio  evidently  resented  this,  went  to  lier  husband  and  got  pos- 
session of  her  three  boys  —  sons  of  theirs  —  and  took  them  to  a  coffee-house, 
where  he  left  them  in  bed,  and  where  they  were  found  dead  next  morning.    This 
was  the  morning  of  the  9th  of  August.     On  the  evening  of  tliat  day,  he  went  to 
Ramsgate  disguised  with  false  beard  and  moustache,  and  a  pair  of  green  specta- 
cles, and  provided  with  a  pistol  revolver,  witli  live  cliaml)ers,  all  of  which  were 
loaded  with  ball ;  and  having  found  out  where  his  wife  lodged,  managed  to  get 
access  to  her  at  the  liouse  of  a  friend,  and  desired  to  be  alone  with  her.    She, 
however,  at  first  objected  to  this,  and  he  then  made  an  appointment  Avith  her  for 
the  next  morning  at  the  .same  house.    He  came  tlierc  the  next  morning  and  for 
some  time  conversed  sensibly;  still,  however,  pressing  her  for  an  interview  witli 
her  alone;  but  desiring  tliat  their  cliild  should  be  with  them.    This  last  was  not 
acceded  to,  but  his  wife  went  witli  him  alone,  and  they  sat  together  nearly  half  an 
hourtill  the  child  came  in.     In  five  minutes  afterv.-ards,  reports  of  fire-arms  were 
heard,  and  it  appeared  that  after  shooting  both  his  wife  and  child,  he  was  taking 
off  his  disguise,  when,  before  lie  had  time  either  to  reload  his  weapon  or  depart, 
he  was  seized  by  one  of  the  witnesses  until  tiie  police  arrived. 

Under  the  body  of  deceased  was  found  a  copy  of  his  letter,  cut  from  the  news- 
paper in  wliich  it  appeared.  When  asked  wliy  lie  had  done  this  deed,  he  said: 
"  She  is  better  off;  had  she  lived,  she  would  have  had  more  trouble;  for  if  I  had 
returned  to  London,  it  would  have  been  under  sentence  of  death!"  adding, 
«*  What  have  I  left  behind!  "  or  "  Wliat  have  I  done!  "  Allusions  which  it  was 
suggested  referred  to  his  murdering  Mrs,  White's  three  sons;  evidence  of  which, 
therefore,  was  admitted  to  explain  the  allusion,  and  rebut  the  evidences  of  insan- 
ity, which  it  was  intimated  (as  already  suggested)  would  be  set  up. 

When  before  the  magistrates,  he  read  a  long  written  statement,  acknowledging 
that  he  had  taken  the  children  to  the  place  where  they  were  found;  and  throw- 
ing the  "  responsibility  for  his  acts  "  npon  "  society,"  and  upon,  in  particular, 
eminent  persons  whom  he  denounced,  and  to  whom,  it  was  to  be  recollected  he  had 
applied  for  pecuni.ary  relief.  Wliile  in  prison  he  wrote  sevenal  sensible  letters, 
and  sent  a  telegram  to  a  friend  as  to  his  trial,  which  is  in  these  terms:  '*  My  life 

is  over;  I  shall  have  to  justify  myself  from  terrible  charges.    See .    I  want 

her  brother,"  etc. 

Mklloh,  J.,  in  summing  uj)  tlie  case  to  the  jury,  said  the  first  question  for 
them  was,  whether  the  prisoner  was  in  a  fit  state  to  be  tried,  or  in  such  a  state 


PARTICULAR    RIGHT   AND   WRONG   TEST. 


229 


R.  V.  Soiitlu'V, 


of  mental  incapacity  as  to  bo  unalilc  to  comprehend  tlie  nature  of  tlie  proceed- 
ings and  tlie  evidence  ajialnst  him.  If  so,  then  tluit  lindliig  would  be  recorded, 
and  ho  would  be  remanded  until  he  was  able  to  talie  his  trial.  If  lie  was  sane 
now,  then  the  question  would  arise,  whether  he  was  guilty  of  tlie  crime  of  wliich 
ho  was  charged.  The  defence  set  up  for  the  prisoner  was  insanity.  Not  a  sud- 
den frenzy  —  not  a  sudden  excess  of  homicidal  mania  or  fury,  but  as  was  said, 
chronic  and  permanent  insanity.  Insainty  now,  and  insanity  then,  insanity  such 
as  to  disable  him  from  knowing  riglitfrom  wrong.  Now,  was  tlie  defence  sus- 
tained? It  was  for  those  who  set  it  up  to  sustain  it  by  evidence.  By  tlio  law  of 
England,  every  man  was  presumed  to  be  sane  until  the  contrary  was  shown.  It 
would  be  most  dangerous  if  it  were  otherwise,  and  when  a  person  was  to  l)e 
saved  from  tlie  consequences  of  his  acts  by  this  defence,  it  must  be  siiown,  from 
circumstances,  or  positive  testimony,  that  the  person  at  tlie  time  of  the  act  wa?i 
in  sucli  a  state  of  mind,  from  disease,  as  to  be  unable  to  compreliend  tiie  nature 
and  quality  of  his  acts,  and  to  know  whether  ho  was  committing  right  or  wrong. 
A  man  might  have  been  brouglit  up  unhappily,  his  mind  miglit  i)e  ill-regulated 
and  ignorant;  but  tiiese  were  accidental  distinctions  of  wliicli  the  law  could  not 
take  cognizance.  It  was  impossible  to  make  all  men  e(|ually  moral  or  educated, 
and  if  these  distinctions  were  to  be  regarded,  there  would  be  an  end  of  the  crim- 
inal law  altogether.  Comnuinting  upcm  the  evidence  of  the  medical  witnesses 
for  the  defence,  the  learned  judge  observed  that,  after  all,  the  jury  must  give 
themselves  up  to  such  testimony,  but  must  exercise  their  common  sense  and  judg- 
ment upon  it.  Some  medical  men  had  theories  about  insanity  wliich,  if  appliud 
generally,  would  be  fatal  to  society.  Life  could  not  go  on  if  men  who  committed 
great  crimes  were  to  be  deemed  insane  upon  these  theories.  The  standard  of 
sense  or  responsibility  they  set  up  was  far  too  high  for  common  life  and  human 
society.  And  when  medical  men  came  and  stated  that,  from  seeing  a  man  once 
or  twice,  they  should  say  ho  was  insane;  and  not  only  so,  but  that  he  was  insane 
four  months  ago,  tlie  jury  must  exercise  their  common  sense  as  to  the  grounds 
given  for  this  opinion.  The  learned  judge,  in  commeuting  on  the  medical  evi- 
dence for  the  defence,  observed  that  the  medical  witnesses  admitted  (with  one 
exception)  that  the  expressions  of  the  prisoner,  immediately  before  and  after  the 
fatal  act,  showed  that  he  understood  its  nature  and  knew  whether  it  was  right  or 
wrong.  The  learned  judge  also  observed,  that  it  appeared  from  tlie  evidence  for 
the  prosecution,  that  hysteria  was  quite  different  from  insanity,  and  tliat  the 
general  manner  and  demeanor  of  the  prisoner  while  he  had  been  in  gaol  showed 
good  sense  and  sanity  of  mind.  It  was  remarkable,  he  observed,  that  thore  was 
no  evidence  as  to  his  insanity  in  any  former  period  of  his  life.  No  one  who  had 
known  him  in  his  previous  life  said  he  was  insane,  or  even  regarded  him  as  be- 
ing so.  And  on  the  other  hand,  the  gentlemen  who  had  been  in  charge  of  the 
man  from  the  moment  of  his  apprehension  to  the  present  time,  give  positive  evi- 
dence that  he  was  perfectly  sane.  Such  was  the  direct  and  positive  evidence 
on  the  subject  of  the  prisoner's  insanity.  He  need  not  say  that  the  opinion  of 
persons  who  had  observed  a  man  for  months  was  worth  far  more  than  that  of 
those  who  went  to  see  him  once  for  the  very  purpose  of  giving  evidence  that  he 
was  insane.  The  jury  must  bear  in  mind  that  a  man  was  presumed  to  be  sane 
until  the  contrary  was  shovn.  And  the  jury  could  judge,  in  part,  from  their 
own  observation  of  the  prisoner's  demeanor  in  the  dock.    So  much,  then,  for  the 


230 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


direct  evldi'iice  upon  the  question.    The  case  for   tlie    prosecution,   however, 
rested  a  f^ood  deal  upon  the  whole  of  the  eireutnstances  of  the  case,  and  espe- 
cially upon  the  clrcuinstaiices  Immediately  surrounding  the  act  in  question.    The 
jury  were  to  consider  whether  these  circumstances  did  not  show  that  the  man  at 
the  time  he  committed  the  deed,  knew  that  lie  connnltted  a  crime.     It  was  not 
t'uoiiirh  tliat  some  amount  or  degree  of  insanity  was  siiown.     it  must  appear  that 
the  prisomr  did  not  know  that  he  was  doinj;  wrong.    The  learned  judge  then 
read  and  reviewed  the  general  evidence  In  the  case,  pointing  out  the  circum- 
stances relied  upon  as  showim:;  design  and  deliberation,  especially  the  design 
made  use  of.     l^p  to  tliat  time  tli(!  jury  must  consider  whether  everything  was 
consistent  with  his  being  in  tiu;  fidl  possession  of  his  senses.     Upon  the  face  of  it, 
certainly,  it  looked  as  if  he  very  well  knew  what  he  was  al)()Ut.     Tlie   learned 
judge  then  came  to  tlie  evidence  as  to  the  circumstances  of  tlie  murder,  particu- 
larly commenting  upon  the  conversations  with  the  prisoner.    Ttiis,  he  observed, 
was  all  very  m;iterial  as  to  tlio  sanity  of  tiie  prisoner.     The  learned  judge  ob- 
served that  the  prisoner  was  seized  Immediately  after  tiie  act,  and,  therefore, 
there  was  notliing  in  his  not  attempting  to  escape,  as  he  must  have  known  It  was 
Impossliile,  and  so  as  to  the  avowal  of  tiie  act,  being  taken  in  the  act,  how  could 
he  help  acknowledging  it.    Tiiere  were  no  proofs  of  insanity,  and  on  the  con- 
trary, all  the  oilier  circumstances  of  tiie  act,  seemed  to  show  sanity.    As  to  the 
motive  of  the  act,  the  learned  judge  observed  that  no  one  could  dive  into  the 
heart  of  a  human  being,  or  divine  tlie  secret  motives  of  his  actions.    The  ab- 
sence, therefore,  of  all  proof  of  a  motive  was  not  of  the  same  weight  as  its 
presenc(;.    But  here  there  was  an  allusion  to  his  being  under  sentence  of  deatli  for 
anotlier  murder  which  evidently  meant  the  niunler  of  the  boys,  for  he  said  he  re- 
ferred to  what  "  he  had  done  l)ehind,"  or  "  what  he  had  left  lieliind."    Now,  did 
the  jury  doubt  that  lie  knew  he  had  done  what  the  law  regarded  as  a  crime,  the 
doom  of  whieii  was  death.     It  appeared  that  the  prisoner  just  after  the  act  was 
calm  and  collected,  and  the  circumstances  seemed  to  have  shown  great  delibera- 
tion; and  till!  statenn^nt  he  had  written  to  read  before  the  magistrates  showed  a 
consciousness  tiiat  he  had  committed  a  crime.    It  was  for  the  niry  to  say  whether 
there  was  any  evidence  of  insanity.    No  doubt  it  was  a  strange  and  extraordinary 
document ;  but  was  there  not  "  method  in  tlie  madness?"     Did  it  not  ratlier  show 
an  aim  and  purpose  to  mitigate  and  excuse  liis  crime?    And  immediately  after 
writing  this  account,  tliere  were  letters,  and  messages,  and  a  telegram,  whicli 
seemed  to  show  perfect  sense.     These  were  most  material.     These  inquiries  were 
most  sensible  and  pertinent;  did  all  this  show  any  want  of  capacity  to  und'.T- 
stand  the  cliarges  against  him?    Notwithstanding  all  this,  one  medical  man,  and 
only  one,  said  lie  Avas  of  opinion  that  he  was  not  in  a  state  to  understand  what 
was  going  on.    But  as  to  that,  the  jury  must  form  their  own  judgment,  and  upon 
the  whole  evidence  thej'  must  consider  whether  they  were  or  were  not  satisfied 
that  he  was  now  in  a  state  to  take  his  trial;  and  if  so,  then  they  must  consider 
the  next  and  great  question,  whether  at  the  time  of  the  act  he  was  or  was  not  in 
such  a  state  of  mind  as  to  make  that  act  murder?     Every  act  of  wilful  killing  of 
a  human  being  was  prima  facie  murder,  and  it  was  murder  unless  the  evidence 
showed  that  tlie  man  was  not  in  a  .state  to  know  that,  in  the  eye  of  the  law,  what 
he  did  was  a  crime.     Was  there  anything  In  the  case  to  satisfy  their  minds  that, 
at  the  time  he  did  the  act  he  did  not  know  that  it  was  wrong,  and  that  it  was  a 


TIIK    KNOIJSII    TESTS    IN   THE   AMEKKAX    COUKTS. 


•>:n 


Alabiiina,  Ciiliforiilii,  Dclawan,'. 


rriinc?  If  not  satisllcd  of  that,  tlicii  (assiiiniim  tliaf  tlioy  came  to  a  similar  con- 
clusion on  tills  llrst  iiiiostioii)  tlicy  must  llnd  lilm  jruilty;  if  otlicrwisc,  tlu-n  not 
tfuilty,  on  tlio  yroimd  of  insanity.  Tlic  jury  llrst  pronounced  tlieir  llndin«, 
tiiat  tiie  prisoner  was  now  of  sane  mind,  and  tlicu,  tliey  returned  tlio  yeneral 
verdict  of  "guilty." 

V^erdict  guilty.     Sentence,  death. 

§  7.  The  English  Tests  in  the  American  Courts.  —  Of  tlie  four  Icjral  tests  of 
insanity  wliicii  we  liave  .seen  liave  i)cen  adopted  at  different  times  l)y  tlu!  Kn;;lisli 
judges,  vi/.:  (1)  the  "  ciiild  "  test;  (!')  tlie  "  wild  l)east "  test;  (:'.)  the  test  of 
l<nowledj;e  of  rii^iit  and  wron;;  in  the  al)stract,  and  (4)  tlie  test  of  Isiiowlediie  of 
rijtlit  and  wronjj;  as  applied  to  tlie  parlicnlar  act,  —  only  tlie  fourth  lias  been 
adopted  at  any  time  l)y  the  courts  of  tliis country;  Init  tliis  test  lias  lieen  received 
witli  sucli  favor  as  to  l)e  at  present  well  settled  as  tin;  law  of  such  cases  in  u 
majority  of  tlie  State  courts  and  in  tiie  Federal  courts.'  Wu  sliail,  therefore, 
spealv  of  this  foiirtli  test  hereafter  as  tiie  "  rijrlit  and  wron;^  test,"  and,  in  tii(! 
following  sections,  the  States  in  wliicii  tills  test  is  maintained  will  Ije  given  in  their 
order. 


§  8.  Bigrht  and  Wrong  Test  —  Alabama.  —  The  right  and  wrong  jest  is  ap- 
proved in  .Vlaiiama.  In  a  leading  case  on  tlie  sulijeet  it  is  sahl:  "  Wlien  the 
plea  of  insanity  i.s  interposed  to  protect  one  from  the  legal  coiisf<iiienci's  <jf  an 
act  whicii  amounts  to  a  crime,  to  render  tiie  defence  availal)le,  the  evidence  must 
l)e  siicli  as  to  convince  the  minds  of  the  jury  that  at  the  time  the  act  was  done 
theaccused  was  not  conscious  tliat  in  doing  the  particular  act  he  was  committing 
!i  crime  against  tiie  laws  of  (Jod  and  iiis  country.  If  he  knew  right  from  wrong, 
and  knew  that  he  was  violating  tlie  law,  lie  is  tlien  guilty,  for  it  is  this  conscious 
knowledge  connected  with  tlie  act  tliat  constitutes  tiie  crime."  ' 


§  9. ■  California. —  In  California  tlic  test  is  whether  the  accused,  at  the  time  of 

committing  tlie  act,  was  conscious  that  he  was  doing  wrong.^  An  instruction, 
that  if  the  jury  And  tliat  tlie  prisoner  was  insane  at  the  time  of  tlie  alleged 
murder,  tliey  should  declare  him  not  guilty  without  regard  to  tlie  degree  of  in- 
sanity, is  properly  refused.* 


§  10. 


Delaware.  —  So  in  Delaware  the  test  is  the  ability  to  comprelicnd  the 


difference  between  right  and  wrong  in  respect  to  tlie  very  act  with  which  he 
stands  charged.* 


'  In  some  of  the  cases  where  the  fourth 
test  is  adopted,  tlie  language  of  the  court 
would  seem  to  iniidy  that  tlie  third  test  was 
the  one  intended  to  be  appHed.  But  it  is 
plain  in  the  liglit  of  all  tlie  American  adju- 
dications that  the  third  test  is  not  law  in  a, 
single  State. 

-  McAllister  v.  State,  17  Ala-  434  (1850),  cit- 
ing Com.  V.  Kogers,  7  Melc.  500;  Clark  v. 
btate,  12  Ohio,  483 ;  State  v.  Brinyea,  5  ^Ua. 
241. 


3  People  V.  McDonnell,  47  Cal.  134  (1873) ; 
People  f.  Coflfman,  24  Cal.  230  (1864) ;  People 
V.  Hoon,  16  Cent.  L.  J.  57  (1883) ;  "  ople  v. 
Hobson,  17  Cal.  424  (1861). 

<  People  V.  Best,  .39  C.  1.  690  (1870). 

s  State  V.  I>anby,  1  Houst.  Cr.  Gas.  166 
(1864) ;  State  v.  West,  1  Houst.  Cr.  Cas.  371 
(1873) ;  State  v.  Brown,  1  Houst.  Cr.  Cas.  f>39 
(1878) ;  State  i-.  Hurley,  1  Houst.  Cr.  Cas.  371 
(1873);  State  v.  Windsor, 5  Harr.  (Del.)  512 
(1851) ;  State  v.  Dillabunt,  3  Harr.  661  (1840). 


'^:^. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


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Sciences 

Corporation 


33  WEST  MAIN  STMET 

WEBSTER,  N.Y.  MSSO 

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232 


THE    LEOAL   TKST   OF    INSANITY. 


Notes. 


§  1 1. Georgria.  —  The  same  test  prevails  In  the  Georgia  court.'     In  an  early 

case  it  was  helil  tiiat  where  it  is  admitted  that  the  prisoner  is  neither  idiot, 
lunatic  or  insane,  it  is  not  competent  to  prove  that  he  is  of  wealc  mind.  "  All 
persons  are  considered  by  our  code,"  it  was  said,  "eapal)ie  of  committing 
crime  who  are  ueitlier  idiot,  lunatic  nor  insane,  and  who  have  arrived  at  the 
aj;e  of  fourteen  years,  and  before  tluit  age  if  tliey  know  the  distirttiou  l)etweeu 
good  and  evil,  and  if  capable  of  committing  crime  they  are  liable  to  be  convicted 
upon  tlieir  own  confession.  We  cannot  therefore  recognize  the  distinction  which 
is  sought  to  be  engrafted  upon  the  law.  It  would  lead  to  endless  metaphysical 
discussion  on  the  plulosophy  of  the  mind.  Besides,  experience  teaclies  that  in 
point  cf  fact  the  cunning  and  crafty  are  much  more  liliely  to  conceal  and  nusrep- 
rcsent  the  truth  than  those  wlio  are  less  gifted.  It  is  the  trite  oijservatiou  of  all 
travel'  IX  that  if  you  wish  to  learn  the  truth  with  respect  to  the  health  of  a 
conn:;  ,  y-  i  must  interrtigate  tlie  children  and  .servants  al)out  the  matter."  *  In 
Lloijd  v.  i';  .'\'it  v.as  said:  "  We  see  no  material  error  in  the  judge's  charge 
on  the  s!"bj""V.  of  insanity.  In  one  sense  all  crime  is  insanity.  Indeed,  in  view 
of  the  a\> ,"  1  nspoiisii)ility  t>f  all  of  us  to  the  judge  of  tlie  quiciv  and  the  dead, 
auy  sin  is  ;.  sort  of  insanity.  But  as  tlie  judge  justly  said,  soeietj'  cannot  afford 
to  treat  a  man  as  insane  because  he  lias  i)ecome  so  steeped  in  crime  as  to  have 
stupilled  his  couseienc".  Tlie  judge  stated  the  rule  of  responsibility  froni  the 
words  of  this  court  ovrr  and  over  again  repeated,  tf)-wit:  Was  ths.  accused 
conscious  he  was  doing  wrong?  Was  his  mind  sound  enough  to  judge  of  the 
riglit  or  wrong  of  his  acts."  ♦ 


§  12. 
and  Maine.''' 


Kansas  —  Ma<ne.  —  The  right  and  wrong  test  is  adopted  in  Kansas  ■' 


§  13. Massachusetts. —  So  in  Mas.sacliu.setts.''     In  Com.  v.  Heath,'*  tried  in 

Massaeliusetts,  in  1858,  Francis  K.  Ileatli  and  Miriam  O.  Heath  were  indicted 
for  tlie  murder  of  tlieir  fatlicr,  Joshua  Heath,  and  tried  at  Lowed,  at  April  term, 
18J8,  l)efore  Justices  Dkwkv,  Mktc.vlf  and  Thomas.  One  question  at  the  trial 
was,  wlutiier  the  defendants  wi'i'e  of  sufficient  intelligence  to  be  responsible  for 
a  homieide;  and  upon  tliis  point  and  the  burden  of  the  proof  thereon,  the  court 
gave  tlie  folIo\viii'.i  iiistruetions  in  the  charge  then  delivered  l)y  Thomas,  J. :  If 
the  jury  are  satistlcd  that  a  homieide  was  committed,  and  under  such  circum- 
stances that,  if  done  l)y  a  responsil)le  agent,  by  one  capable  of  committing  a 
crime,  it  would  be  murdir,  either  in  the  lirst  or  second  degree,  the  only  question 
remaining,  and  the  important  and  vital  question  of  the  cause  is  »'  were  the 
prisoners  at  tlie  bar  capable  of  committing  the  offence."  The  law  presumes  men 
and  women  of  ilie  age  of  the  prisoners  to  l)e  .sane,  to  lie  responsible  agents. 
Where,  tlierefore,  a  liomicide  is  proved  to  have  been  committed  in  such  way  and 
under  such  circumstances,  as  when  done  by  a  person  of  sane  mind,  would  con- 


I  Roberts  v.  State,  3  Ga.  310  (1847) ;  Brink- 
ley  V.  State,  53  Gn.  290  (1S77). 

!!  StuUstill  V.  State,  7  Ga.  202  (1849). 

3  45  Ga.  67  (187J). 

*  And  see  Humphreys  v.  State,  46  Ga.  190 
(lir72);   Westmorland   v.  State,  46   Ga.  225 


(1872) ;   Choice  v.  State,  31  Ga.  424  (1860) ; 
Kobcrts  r.  State,  3  Ga.  blO  (1847). 

<^  State  V.  Mahn,  25  Kas.  182  (1861). 

**  State  V.  Lawrence,  67  Mc.  674. 

'  Com.  r.  Itogers,  7  Meto.  600  (1844). 

•  11  Gray,  303  (1868). 


PARTICULAR    HKillT   AND    WR0*"'5    TEST. 


233 


Michigan,  Mimu'sota,  I/!  isissippi,  Missouri. 


In 


I 


stitute  iniinlf"-,  tlio  presuiiiptioii  of  law,  as  of  coiiiinon  sense  and  sjencral 
experience,  supplies  tliat  linli.  It  presumes  men  to  l)e  sane  tlil  tlic  ontrary  is 
sliown.  Ttio  presumption  of  law  stands  tili  it  is  met  and  overcome  Ijy  tlie  evi- 
dence In  the  case.  The  evidence  may  come,  of  course,  as  well  from  the  witnesses 
for  the  fioverninent  as  the  witnesses  for  the  defence;  and  wlien  the  evidence  is 
all  In,  the  jury  must  l)e  satislled,  in  order  to  convict  the  prisoner,  not  only  of  the 
doing  of  tlie  acts  whidi  constitute  murder,  but  tliat  tliey  proceeded  from  a 
responsible  agent,  one  capal)le  of  committing  the  offence.  This  istlie  rule  to  he 
applied  to  a  case  wliere  the  defence  is  idiocy,  an  original  defect  and  want  of 
capacity.  Whetlier  tlie  rule  is  modilled  wliere  the  defence  relied  upon  is  insanity, 
disease  of  the  nnnd  or  delusion,  it  is  not  necessary  now  to  intiuire."  The 
prisoners  were  convicted. 


§§U,15. 


Mlchigran 


•  Minnesota  —  Missisaippl. — And  the  riglit  and  wrong 
test  prevails  in  Michigan,' and  Minnesota.  In  State  v .  Shippey ,''  it  was  said:  *  His 
(tlie  prisoner's)  suspicion  of  strangers,  apparent  melancholy  and  peculiarity  of 
de|)ortment  generally  are  not  proof  of  insanity  as  tliat  term  is  popularly  under- 
stood. Perhaps  by  theorists  these  peculiarities  may  l)e  considered  evidences  of 
insanity.  It  is,  indeed,  very  dilllcult  to  dellne  tliat  invisible  line  tliat  divides 
insanity  from  sanity,  1 'it  sucli  si)eculation  is  not  Inre  necessary,  for  a  party 
indicted  is  not  entitled  to  an  accpiittal  on  the  ground  of  Insanity,  if  at  tlie  time  of 
tlic  alleged  offence  he  had  capacity  suttlcient  toenal)le  him  to  distinguish  between 
riglit  and  wrong  and  understood  the  nature  and  conseqinnces  of  his  act  and  had 
mental  power  sulllrient  to  apply  that  knowledge  to  his  own  case,"  ant!  it  is  fol- 
lowed in  Mississippi.' 


Missouri.  —  In  Missouri  the  test  adliered  to  is  the  abilitv  to  know  the 


§  ir... 

right  from  the  wrong  of  the  particular  act.*  In  State  v.  Kotovsky,^  decided  in 
18S1,  IIknuy,  J.,  in  delivering  the  opinion  of  the  court  atllrming  tlio  judgment 
below  says:  "  The  instri'ction  in  relation  to  insanity  was  in  e.xact  conformity 
with  what  this  court  recei.tly  announced  as  the  law  in  Statrw  liednueier,'^  and 
yet  more  recently  In  State  ■.  Erh;^  and  while  two  of  the  members  of  this  court 
(.Tudge  HoitiH  and  I)  do  \u^*  tl>iiik  that  the  only  legal  test  of  iiis;iiiity  is  the 
ability  to  know  the  ri'ziit  from  the  wrong  of  the  particular  act,  but  that  one 
knowing  the  right  from  the  wrong  may,  in  con.sequence  of  organic  mental 
derangement,  l)e  incapable  of  exercising  the  will,  and  is  therefore  not  amenable 
criininally  for  the  act,  tliree  of  our  associates  are  of  different  opinion,  and  tlie 
judgment,  tlierefore,  cannot  be  reversed  for  tliis  alleged  error."  In  an  earlier 
case  it  was  said :  "Where  insanity  is  interposed  as  a  defence  to  an  indictment 
for  an  alleged  crime  tlie  inquiry  is  always  brought  down  to  tln^  single  question 
of  capacity  to  distinguish  between  right  and  wrong  nt  the  time  when  the  act  was 
done.  •  ♦  *  Tlie  Insanity  must  be  such  as  to  deprive  the  party  charged  with 
the  crime,  of  the  use  of  reason  in  regard  to  ilie  act  done.    Ttie  prisoner  may  be 


'  People  V.  Finley,  38Mich.  482. 

5  10  Minn.  223  (1*«). 

*  Bovard  t).  Stato.SO  Miss.  600(1866) ;  New- 
comb  V.  State,  37  Miss.  383  (185U) ;  Cunning, 
ham  V.  State,  S6  Miss.  269  (1879). 


«  .State  r.  Kedcmeier,  71  Mo.  173  (1879). 
•  74  Mo.  247  (1881). 
•  71  Mo.  173. 
'  74  Mo.  199. 


234 


TlIK    LtXiAL   TKST    OF    INSANITY. 


NoU's. 


•IcraiiiriMl  on  other  subjects,  tint  if  oapiible  of  (lisiitr^uisliimi  lu'twcfii  ri^ht  and 
wron::  in  the  pariicnlur  act  done  by  iiini,  lie  is  justly  lialile  to  bo  punished  as  a 
criminal.  Such  is  the  un(loul»ted  rule  of  the  coninioii  law  on  this  subject. 
Partial  insanity  is  not  by  that  law  necessarily  an  excuse  for  crime  and  can  only 
be  so  where  it  deprives  the  party  of  his  reason  in  rcLranl  to  the  act  chariicd  to  be 
criminal.  The  instructions  hero  jiiven  brought  down  the  (piostion  of  insanity  in 
rcf^ard  to  the  act  done.  If  tiie  prisoner  had  been  ,sane  on  all  other  subjects,  and 
yet  not  able  to  know  whellier  the  act  eharnid  airaiust  him  was  riirht  or  wrotiit, 
owini;  to  some  morbid  and  dise.-ised  hallucination  of  tiie  mind  upon  the  very 
subject,  the  jury  were  instructed  to  tind  him  not  <ii:ilty."  ' 


§i; 


Nebraska  —  New  Jersey.  —  The  same  tist  is  applied  in  Nebraska' 


and  New  Jers4'v.^ 


§  is.  New  York.  — The  at)ility  to  distinguish  »)etween  the  rijfht  and  wrong 

of  the  act  is  the  test  rei-oirnized  in  New  York.' 

In  People  v.  I'iiie,''  the  jirisonor  was  tri.il  in  Dutchess  County,  N.  Y.  for  the 
murder  of  Mrs.  Russell.     HuKt  i.o,  .!.,  charged  the  jury  as  follows:  — 

"  Tlie  <|Uestion  of  insanity,  upon  which  this  case  turns,  always  involves  difficult 
and  intricate  in<|uiries.  It  is  a  subject  upon  which  tuuch  has  been  said  and 
written,  by  way  of  theory  and  specul.ition,  and  it  cannot  be  denied  that  the 
numerous  a<;judications  are  not  alto;rether  reconcilal)le.  \Vithout  detaining 
you  with  tetiinieal  terms,  it  will  ^^e  sulllcient  to  say  that  insanity  assuuu'S  a 
variety  of  forms  and  has  many  names.  Amoni;  them  are:  (1)  (ieneral  insanity; 
(2)  partial  insanity;  CH)  periodical  insanity;  (4)  moral  insanity;  (">)  drujiken 
insanity.  The  tirst,  is  insanity  api)lie(l  to  objects  generally;  the  second,  is  applied 
to  sinixle  objects;  the  third,  occurs  .it  periods,  with  sane  intervals;  the  fourth, 
is  a  inorl>id  perversion  of  the  natural  feeliuyis,  affections,  etc. ;  and  the  fifth, 
is  that  which  results  directly  from  intoxication.  Now,  the  rules  applicable  to 
crimes  committed  in  any  of  these  decrees  of  insanity  are  maiidy  those  of  sound 
reason.  Thus,  it  is  conceded  to  be  the  law  that  insanity  occasioned  directly  by 
intoxication  is  no  excuse  for  a  crime  committed  by  one  in  that  state.  If  it  were 
otherwise,  a  man  by  drinking  to  excess  coidd  divest  himself  of  lesial  responsi- 
bility, and  firatify  his  thirst  for  venireance  with  impunity.  In  rejiard  to  the 
other  kinds  of  insanity,  the  rule  is  laid  down  in  a  ^jcreat  variety  of  terms.  The 
Eniilish  rule  is  thus  stated,  in  Bellinnham'' >^  Case,  by  Chief  Justice  .Mansfield: 
'  In  order  to  support  the  defence  of  insanity,  it  ou^ilit  to  be  i)roved,  by  the 
most  direct  and  niKpiestionaijle  evidenee,  that  the  prisoner  was  incapable  of 
judiiin^  between  ri;;ht  and  wronjr;  that  In  fact  it  nnist  be  proven  beyond  all 
doubt  that,  at  the  titnc  he  committed  the  atrocious  .act  with  which  he  stood 
charged,  he  did  not  consider  that  murder  was  a  crime  against  the  laws  of  God 
aud  nature.'    As  long  as  they  could  distinguish  good  from  evil  they  would  be 


1 


>  state  r.  Hiiting,  21  Mo.  464  (1S55),  citing 
McNa>;hti:n'R  Case,  10  CI.  &  F.  210;  Freeman 
V.  l'e(>|>le,  4  Dcnio,  29. 

-  llawe  f.  State,  11  Neb..W7(38  Am.  Rep. 
537)  1S81);  Wright  r.  People, 4  Neb.  407   (lS7rii. 

»  Stater.  Spenccr,21  N.J.  (I..)  l!«5(1fttfi). 

*  Cole's  Trial,  7  AOb.  Pr.  (.v.  s.)  ^21  (1868) ; 


People  V.  favanaugh,  f.2  IIow.  Pr.  87  (1881) ; 
People  t'.  Doviiie,  1  Edm.  Sel.  C'a8.594  (1848) ; 
People  1'.  (irillln,  1<I.  I'G  (1848) ;  Clark's  Case, 
1  (  ity  Hall  Kec.  176  ( Isl6) ;  Walker  v.  People, 
ante;  Flanagan  r.  People,  62  N.  Y.  467  (11 
Am.  Kop.  731)  (1873);  Fee  po«<,  p.  875. 
••>  2  liarb.  566  (1848). 


TEST    IN    NKW    YOKK. 


235 


I'lOplr    V.  I'illc. 


( 


.imoiiablf  for  their  conduct.  Lord  LvxinnitsT,  in  Hex  v.  Ojfurd,  put  tliis  (|ups- 
tion:  'Did  tiic  prisoner  know  tliat  in  doiii^  the  acl  lie  offended  a^jainst  tlie 
laws  of  (Jod  and  man?'  Aeeordin;;  to  tlie  Scoteli  rule,  tlie  insanity  must  l>e 
of  such  a  Itind  as  entireiy  to  deprive  tlie  jirisoner  of  the  use  of  reason,  as  api)lied 
to  tlie  act  in  question,  and  tho  knowledfie  that  he  was  doinir  wronu  in  coniniit- 
tin;?  it.  If,  althousrh  somewhat  deraimed,  he  is  able  to  disliniiuisli  ri;;lit  from 
wroiii?  in  ids  own  case,  and  to  know  that  he  was  doin-;  wr(Mi^  in  the  act  which 
he  coniniitted,  he  is  liable  to  the  full  punishiiient  of  his  criminal  acts. 

"  In  the  case  of  Altner  Rogers,  tried  in  Massachusetts  before  Chief  Justice 
SiiAW,  in  1KI4,  he  laid  down  the  rule  as  follows:  'A  man  is  not  to  be  excused 
from  responsibility  if  he  has  capacity  and  reas<Mi  siiflicieiit  to  enable  him  to 
distiiifiuish  between  rifiht  and  wron^r,  as  to  the  particular  act  he  is  then  (loinjr; 
a  kiiowledij;e  and  consciousness  that  he  is  (loiii;^  wroiiii,  and  criiiiiiial  will  sub- 
ject him  ti>  punislinieiit.'  Altlioii^li  he  may  be  labiu'iuii  uiidtr  partial  insanity, 
if  he  still  understand  tlm  nature  and  character  of  his  act  aii<l  its  con.serpieucea; 
'if  he  has  a  kiiowledire  that  it  was  wron;i  and  criminal,  and  a  mental  power  to 
apply  that  knowh-d^re  to  his  own  case,  and  to  know  that  if  he  does  the  act  he 
will  do  wrontj  and  receive  punishment,  such  partial  insanity  is  not  sullicleiit  to 
exempt  him  from  responsibility  for  criminal  acts.'  There  .ire  lases  in  which 
tlie  insanity  consist-s  in  a  delusion  by  which  tlie  prisoner  has  a  real  and  firm 
Ixlief  of  the  existence  of  a  fact  wholly  imairinary  and  nnfonnded.  In  reijard 
to  this,  the  Enjilish  courts  hold  that  it  is  no  defence  for  a  criminal  that  the 
prisoner  supposes  he  is  redressin;;  an  injury  or  >rrievance.  The  Massachusetts 
rule  is,  that  if  the  Imaiiinary  facts  would,  if  true,  justify  tlit;  act,  then  he  is 
excusable, — as,  wh  .1  the  prisoner  supposed  that  the  person  was  about  to  kill 
liiiii,  and  he  slays  the  other  iu  self-defence.  There  must  Ije  an  immediate  apprc- 
liension  of  dandier. 

'•.\pplyinij  the  iirinclple  to  the  present  case.  If  the  prisoner  really  believed  that 
Mrs.  Uussell  was  in  the  act  of  conimittiiii;  a  ;rreat  personal  injury  to  him,  and 
supposed  that  lu!  shot  her  in  self-ilefeiice,  he  would  be  excusable.  Hut  it  would 
be  no  defence  that  the  supposed  Uussell  or  his  wife  had  injured  him  to  any 
extent,  because  if  it  were  true  it  would  be  no  jnstillcation  of  tlie  act.  If  a 
breach  of  promise  or  auythin;^  of  that  kind  was  the  oriiiin  of  tht-  act,  and  this 
was  done  by  way  of  reveiijie.  he  is  not  excusable.  A  sinijile  and  sound  rule  may 
lie  thus  expres.sed:  A  man  is  not  responsible  for  an  act,  when,  by  reason  of 
involuntary  insanity  or  di  lusion,  he  is  at  tlu;  time  incapable  of  perceiving  that 
the  act  is  either  wrong  <tr  unlawful.  Keeping  in  mind  this  rule,  let  us  look 
into  the  testimony  and  endeavor  to  apply  it.  It  arranges  itself  into  two  kinds: 
(1)  Hereditary  in.sanity,   (2)  personal  acts  of  insanity. 

"As  to  hereditary  insanity,  the  evidence  is  admissible  upon  the  principle  of 
human  nature,  by  which  the  properties,  temperaments  and  inlirmities  of  the 
parents  are  sometimes  transmitted  to  their  children,  and  pass  from  generation 
to  generation.  It  is  not  iu  any  case  evidence  of  the  highest  character.  It  would 
tie  obviously  unsafe  to  acfpiit  any  jierscm  on  the  sole  ground  that  any  of  his 
ancestors  were  insane.  It  is  a  mere  circumstance.  Hut  before  any  inference 
can  be  drawn  from  such  a  source,  the  fact  of  the  ancestor's  insanity  must  be 
clearly  estalilislied.  It  is  endeavowd  to  be  shown  from  the  following  facts 
that  the  prisoner's  father  was  insane:   CI)  He  appointed  a  time  to  die;   (2)  was 


236 


THE    LKOAL   TEST    OF    INSANITY. 


Notes 


troubled  in  miiiil;   (3)  committed  suicide.     But  do  tliese  acts  necessarily  prove 
insanity?     lie  seems  to  have  been  a  '  lii;;h  sjiirited  '  man,  and  possessing  strong 
passions  and  reliiiious  feelin!j;s.     He  was  unfortunate  in  liis  pecuniary  affairs,  — 
his  property  about  to  be  sold  on  execution.     May  not  these  facts  account  for  his 
conducl?     Is  every  one  who  becomes  possessed  witli  tlie  idea  that  he  is  about  to 
die,  insane?     Is  suicide  evidence  of  insanity?    Clearly  not,  ulone.     If  you  were 
now  trying  the  question  of  Tilly  Pine's  insanity,  would  th'j  evidence  authorize 
you  to  And  in  its  favor?     If  not,  y<»u  cannot  find  any  just  inference  in  this  case 
in  favor  of  the  prisoner.     Is  the  daugliter,  Mrs.  Potter,  insane?    She  seems  to 
have  been  a  woman  of  strong  religious  iv-elings,  which  perhaps  will  account  for 
all  her  peculiarities.     Besides,  she  is  l)ut  half  sister  to  the  prisoner,  and  may 
have  derived  her  temperament  from  her  inotlier.     Both  father  and  dauglitcr 
discharged  tlie  duties   incumbent  upon  them  of  father  and  wife.     It  is   not 
pretended  that  a  commission  of  lunacy  could  have  been  issued  against  either 
of  them.    We  come  now  to  the  evidence  of  insanity  in  the  family  of   Dr.  Per 
La  Pine,  a  cousin  of  the  prisoner.     It  is  showi  that  Lewis  Pine,  a  brother,  was 
deranged;  the  father  was   partially  deranged  after  a  severe  loss.     As  to  the 
children,  it  may  have  come  from  mother  or  fa^'  er,  or  originated  with  them- 
selves.    The  father  lived  to  an  advancetl  age     lud  attended  to  his  business 
through  life.     No  one  can  contend  that  he  was  a  conlirm<'d  maniac,  or  even 
subject  to  i)eriodical  insanity.     It  is  for  you  to  say,  on  the  whole,  whether  any 
well-founded  inference  can  be  drawn  from  such  evidence  of  insanity  in  rela- 
tives; especially,  when,  with  one  exception,  the  relations  are  not  in  the  right 
line  of  descent.     As  to  the  evidence  of  i)ersonal  insanity:  this  defence  is  pre- 
sented under  very  peculiar  and  somewhat  suspicious  circumstances.     It  is  not 
pretended  that  the  j)risoner  is  now  insane.     If  acipiitted,  he  must  be  discharged, 
and  could  not  be  sent  to  the  asylum,  as  the  court  uiiderstands  the  testimony. 
The  witness  speaks  of   his   being  insane.     Not  a  sinu:le  medical  or  scientillc 
witness  gives  it  as  his  opinion  that  he  now  is  or  ever  was  insane.    The  prisoner 
comes  into  court  and  says  he  was  insane  at  the  time  of  conunitting  the  act. 
lias  he  proved  it?    It  is  for  you  to  scrutinize  the  testimony  carefully,  and  not 
permit  him  to  avoid  punishment  on  tiiat  ground,  unless  made  out  to  your  full 
satisfaction.    Generally,  a  man  Is  presumed  innocent,  and  tlie  great  difflewlty  is 
to  .show  how  the  deed  was  done,  and  who  did  it.     In  tliis  case  the  situation 
of  the  prisoner  is  otherwise:  there  is  no  tUnibt  of  his  being  the  homicide.    The 
presumption  is  that  In-  was  sane;  that  is  the  general  rule.    The  presumption  is 
against  his  umocence.     He  must  clear  himself  ijy  satisfying  you  tuat  he  was 
incapable  of  perceiving  the  criminality  of  the  act.     Eccentricity  or  peculiarity 
of  conduct  is  not  sulllcient;  thi^y  belong  more  or  less  to  all  men.     p]ven  par- 
tial insiinity  is  not  sulllcient.    To  come  to  the  personal  acts  from  which  it  is 
contended  that  insanity  is  to  t)e  inferred:  1.  His  hanging  himself.    This  was 
extraordinary,  l)ut  it  was  done  near  a  dwelling  house.     He  also  laughed  when 
asiied  why  ho  did  it.    2.  No  more  is  heard  of   it  till   18-13,  when  he  lived  at 
Pleasant  Valley.    This,  it  appears,  was  about  the  tiuie  or  soon  after  he  lived  at 
Mrs.  Degroff's,  where   Mrs.  Russell,  tlieu   unmarried,  lived.     Mr.  Taylor  saw 
him  crying  at  times;  breaking  through  the  siding;  attempted  to  .shoot  himself. 
These  may  be  evidence  of  an  aberration  of  mind,  or  of  disappointment,  or  a 
disposition  to  terrify  others.    If  he  was  Insane,  aud  wished  to  kill  himself,  it 


TEST    IN    NEW    YOKK. 


237 


People  0.  Plue. 


is  strange  lie  iliil  not  do  it.  It  is  possible  that  the  letter  given  in  evidence,  In 
which  he  speaks  of  a  marriage  agrecnient,  may  afford  a  solution;  or  it  may  be 
explained  by  reference  to  intoxication.  3.  The  occurrence  on  tlic  night  he  was 
removed  to  the  county  house  with  delirium  tremens.  It  is  ilitllcult  to  see  how 
this  establishes  insanity.  4.  Scene  at  Brown's,  last  September.  It  was  of  siiorl 
duration,  and  occurred  after  he  had  been  drinking.  5.  A|)i)lication  to  Isaac 
Lawton  for  a  warrant.  He  had  been  drinking,  and  seems  to  liave  had  an  idea 
that  Mrs.  Russell  hud  wronged  him.  Wiiat  is  here  alleged  may  have  been  true, 
without  that  degree  of  insanity  wliich  excuses.  C.  Tlie  occurrence  on  board 
the  towboat  was  extraordinary,  nnli'ss  it  can  be  referred  to  delirium  tremens. 
There  is  some  other  evidence,  but  this  case  has  been  summed  up  very  ably,  and 
I  will  not  detain  you  with  it.  Tliere  are  two  theories  l»y  which  these  circum- 
stances may  bo  reconciled:  (1)  Periodical  insanity,  which  is  tiie  theory  set  up 
by  the  prisoner's  counsel;  (2)  a  morbid  thirst  for  revenge  for  a  real  or  fancied 
injury,  arising  from  tlie  rejection  of  his  addresses  by  Mrs.  Uussell  before  her 
marriage,  excited  by  li<|Uor.  It  seems  to  me  that  this  last  view  will  ex|)laln  and 
reconcile  all  the  testimony  except  the  act  of  liis  boyhood.  The  letter  before 
alluded  to  refers  to  this  suljject.  In  the  llrst  place,  before  the  marriage  of  Mrs. 
K.,  he  threatined  to  kill  himself  in  view  of  the  church;  perhaps  under  a  vague 
notion  that  she  would  learn  of  it  and  relent.  After  her  marriage  he  .seems  to 
have  had  an  idea  tl  at  he  was  in  some  way  entitled  to  a  share  of  her  i)roperty,^ 
probably  as  a  compensation  for  his  Injuries  on  his  former  indictment  for  burning 
the  barn,  or  a  reparation  for  refusing  to  niarry  liim.  It  is  hardly  necessary  to 
say  that  neither  of  these  will  excuse  him.  No  fancied  or  real  injury  can  justify 
the  act.  There  is  a  further  view  of  the  case.  Suppose  It  were  established  that 
the  prisoner  was  liable  to  periodical  fits  of  insanity,  will  the  evidence  luTniit 
you  to  acciult?  The  rule  of  law  you  will  remember,  Is,  that  In  case  of  peri- 
odical insanity,  it  must  be  proved  that  the  act  was  committed  during  an  attack 
of  the  disease. 

•'  How  then  stands  the  testimony  as  to  his  situation  at  the  time  of  committing 
the  act?  On  Friday  he  came  to  Poughkeepsie  and  bought  the  pistol,  apparently 
sane.  He  returned  to  Pleasant  Valley  in  the  evening  api>arently  .sane. 
On  Saturday  and  Saturday  exciiing  he  is  proved  to  have  been  as  sane  as 
usual.  On  Sunday  morning  he  was  awakened  by  Sales,  and  cleaned  the  bar-room  •, 
sane  yet.  Took  his  bn'akfast  as  usual.  Between  ten  and  eleven  o'cIr,ik  he  and 
Mr.  Holmes  looked  over  the  accoimts  and  settled.  About  the  same  time  he  had  a 
brief  conversation  with  Mr.  Bishop  at  the  stable.  Mr.  Frear  saw  him  al)()ut 
twelve  o'clock,  three-fourths  of  a  mile  from  Russell's,  going  north;  exchanged  a 
few  words  and  considered  him  sane.  Mr.  Doty  saw  Mm  about  one-fourth  of  a 
mile  from  Russell's  and  did  not  dlscovir  any  signs  of  insanity.  It  is  true  thai 
he  drank  several  tims;  and  one  witness  speaks  of  his  having  a  wild  eye;  but 
the  great  mass  of  proof  establishes  him  to  be  as  sane  as  usual,  nearly  np  to  the 
time  of  the  commission  of  the  deed  and  not  excessively  Intoxicated.  When,  then, 
did  he  become  insane?  was  it  at  the  moment  of  the  act?  The  act  itself  cannot  be 
taken  as  evidence ;  it  must  be  proven  otherwise.  Can  it  be  supposed  that  during 
all  the  prellminjiry  arrangements  of  nearly  three  days,  and  then  became  insane 
just  at  the  time  of  firing  the  pistol?  C:m  you  believe  that  at  the  time  this  a3t 
was  comnjitted,  the  prisoner  was  so  insane  that  lie  was  not  able  to  perceive  that 


238 


THE    LCUAL   TEST    OF    INSANITY 


Notes. 


tlio  act  was  wroiiii  nr  unlawful?  Aiialii  let  us  look  at  Ills  suhsoqui'tit  coiKluct. 
Imincdlattly  aftiT  tlii'  dcrtl  was  poriu-tralftl,  lie  tlt-tl.  Wliy  ili<l  he  llee?  It  is 
laid  d«)wii  in  llie  lK>uk.s,  it  is  u  dictate  of  liinimii  reason,  tliat  the  very  act  of  flee- 
ing and  secntini:  himself,  is  inconsistent,  uenerally,  with  the  Idea  of  his  not 
knowing;  Ihiit  the  act  was  wroiiu  and  unlawful.  The  prisoner  kept  him.self 
secreted  with  gri  at  skill  and  cunniiii;  from  Sunday  till  Wednesday,  when  lie  was 
arrested.  No  traces  of  insanily  were  fouiKl  on  him  when  taken.  If  lie  had  the 
predisposition  to  Insanity  claimed  by  his  counsel,  which  could  be  hrouiiht  into 
action  liy  suffering;  or  excitement,  it  is  stranite  Indeed  that  he  was  not  palpably 
nmd  when  discovered,  and  now,  on  the  trial.  Trace  him  down  to  the  preseiittlme. 
He  at  once  declared  that  he  had  shot  her  and  would  have  dom-  It  if  her  husband  had 
belli  present ;  that  her  death  was  all  he  asked  for.  Vou  have  I'.eard  the  medical 
witnesses.  Doctors  Deyo,  and  Ilufihson,  who  both  say  that  he  has  been  sane  since 
his  coiiUnrment.  Tlie  letter  of  tht;  llrst  of  February,  1H4H,  bears  no  mark  of 
insanity,  but  shows  that  he  was  aware  of  his  situation  and  preparing;  for  his 
defence.  Now  all  these  facts  are  strikiiijily  Inconsistent  with  insanity.  The 
insane  man  when  he  commits  a  crime,  jrenerally  does  wot  attempt  to  escape, 
because  he  does  not  know  that  he  has  done  wrony;  and  deserves  jiunishment, 
nor  can  he  make  a  skilful  preparation  for  his  defence. 

»'  It  is  for  you  to  say  whether,  under  this  testimony,  you  can  find  that  this  man 
was  insane  when  he  .shot  Mrs.  Russell.  His  conduct  here  Is  an  unsafe  b.isis  for 
a  verdict  of  acipiittal.  You  are  to  consider  the  case  with  care  and  jiatlence,  and 
if  made  out  to  your  satisfaction,  give  him  tlie  benetlt  of  it.  lint  you  are  al.so  to 
remember  that  you  are  administerini;  criminal  laws;  laws  made  for  the  protec- 
tion of  .society,  laws  to  whi.h  we  must  look  for  our  safety.  If  this  isaeaseof 
murder,  it  ought  to  be  punished  as  such.  The  prisoner  deserves  It.  The 
example  to  otliers  Is  refpiired.  The  delibirate  murderer  .should  never  again  be 
permitted  to  walk  our  streets,  with  an  oi)portunity  to  repeat  his  crime,  and 
encourage  others  in  the  gnitillcatioii  of  their  revengefid  passions.  Upon  the 
whole,  gentlemen,  it  Is  for  you  to  say  whether  this  man  committed  the  deed 
wilfully  and  understandingly;  if  not  he  must  be  acfiuitted.  Public  justice  does 
not  re<iuire  the  punishment  of  an  insaii"  man.  If  you  are  satisJled  of  his  insanity, 
whatever  be  the  consequences  he  must  be  discharged.  IJut  public  justice  does 
reipiire  that  if  that  act  was  not  committed  in  a  state  of  Insanity  which  will 
excuse,  it  should  be  punished.  You  are  not  the  ministers  of  mercy  and  com- 
passion, but  of  justice;  your  feelings  as  men  must  yield  to  your  duty  as  jurors. 
To  permit  a  man  legally  guilty  of  such  an  atrocious  offence  to  goat  large,  would 
bean  example  of  the  most  dangerous  character  and  tendency,  well  calculated 
to  impair  public  conlidence   in  the  virtue  and  etliciency  of  our  courts  of  justice. 

«'  The  cu.-ie,  gentlemen  is  with  you ;  and  I  trust  your  deliberations  will  be  guided 
by  that  wisdom  which  can  nevt'r  err." 

The  jury  found  the  defendant  guilty,  and  he  was  executed. 

In  People  v.  Lake,^  the  jirisoner  h.iving  been  convicted  of  murder,  his  convic- 
tion was  reversed  on  appeal.'^  Being  placed  on  trial  a  second  time  be  pleaded 
present  insanity  and  a  jury  was  euipauelled  to  try  this  issue.    The  presiding 


»  2  I'ark.  215(1855). 


5  See  Lake  r.  I'eople,  1  Park.  4!>5  (1854); 
People  V.  Lake,  1»  X.  ^■.i■)8  (KVi). 


TEST    IN    NKW    YOUK, 


2.39 


IVople  r.  Liikf. 


and 


jniljji' charjjrd  tlicin  as  follows:  "  Tiic  statiito  dcclaros  tiiat  '  no  insano  person 
can  bo  tried,  sentenced  to  any  punlsliincnt,  or  punished  for  any  crime  or  offi-nce, 
while  ho  continues  in  that  state?  "  The  prisoner  stands  indicted  for  tlieiiiirlio-t 
offoncu  known  to  the  law,  murder,  an<l  that  too,  ctnnmitted  upon  his  own  w  ife 
and  offspring,  lie  has  been  once  tried  and  convict  d  on  tliis  cliari;e,  and  a  uew 
trial  granted  liim,  not  ix-cause  tiie  court  Ixlieved  him  insane,  but  wliolly  upon 
the  {;round  of  «'rror  arisinuf  on  tlio  admission  and  rejection  of  improper  testi- 
mony. T-lio  new  trial  was  set  down  for  tliis  time,  tlie  pulilic  prosecutor  moved 
it  on,  and  tlie  prisoner's  counsel  aliejied  his  insanity,  and  tiie  court  deemed  it 
proper  to  try  that  <iucstion  llrst  and  distinct  from  his  crime.  It  is  for  tliis  pur- 
po.se  to  determine  wlietlier  he  Is  now  Insane,  that  you  are  impanelled.  Vou  will 
not  allow  the  atrocity  of  tin;  offence,  nor  tlie  suppc  ed  efficl  of  your  verdict, 
either  on  the  prisoner  or  on  the  community,  to  iutlueiicti  you  in  the  least,  but 
unswayed  by  prejudice  and  unbiased  by  feelinir,  you  will  pass  upon  the  (piestion 
of  his  present  sanity;  If  you  find  that  hi'  is  sane,  we  shall  then  proceed  to  try 
him  on  the  Indictment;  if,  on  tlie  contrary,  you  lliid  liiiii  insane,  the  humanity  of 
the  law  interposes  for  the  protection  of  his  life,  until  he  is  restored  to  reason. 
In  the  meantime  he  will  be  kept  in  close  coulluement,  and  society  protected  from 
his  fury. 

"  Uefore  proccodinfj  to  call  your  attention  to  the  law  as  applicable  to  this  ca.se, 
I  will  make  a  passinii  remark  on  the  strant?e  objection  tliat  lias  beeu  made  by 
one  of  the  counsel  in  reference  to  tlie  propriety  of  the  re«|UeNt  made  by  the  court 
for  physicians  to  examine  the  prisoner  .so  as  to  be  able  to  testify  as  to  his  .state 
of  mind.  The  court  did  not  do  this;  I  did  it,  and  assuiiie  its  full  responsibility. 
.\ud  I  only  allude  to  the  subject  on  the  prisoner's  account,  lest  you  inif;ht  not, 
if  you  supposed  there  Avas  anything  imiiroper  In  the  selection  of  th'.  50  men, 
give  to  their  testimony  the  weight  It  would  otherwise  have.  The  deforce  on  the 
former  trial  had  been  Insanity,  respectable  physicians  had  then  testilled,  'hat  he 
was  insane,  others,  that  he  was  not.  The  alleged  insanity  continued,  and  nhj'si- 
cians  it  was  said  would  not  make  an  examination.  Ivnowing  that  the  ol.ject  of 
a  trial  was  to  elicit  truth,  and  that  could  only  be  obtained  l)y  knowledge,  vnd  that 
knowledge  was  acriuired  by  investigation,  that  you  might  have  some  evidence, 
some  rational  opinions  founded  upon  sntlicieut  facts;  I  made  the  recuest  for 
four  medical  men  to  make  an  examination  satisfactory  to  themselves.  The  four 
physicians  were  my  own  selection,  one  of  them.  Dr.  John  Cooinr,  Sr.,  had,  on 
the  former  trial,  given  his  oi)inion  that  he  was  .sane,  another.  Dr.  Varick,  had, 
on  that  trial,  testilled  that  in  liis  opinion,  he  w.is  insane,  while  the  other  two, 
Doctors  Ilughson  and  Bocker,  had  never  .seen  liini,  and  were  consequently  un- 
committed. I  need  not  tell  you,  gentlemen,  what  is  the  i)rofcssional  .standing of 
these  four  men  among  their  brethren  In  this  county  or  in  the  community.  If  the 
object  of  this  trial  Is,  however,  to  go  into  the  matter  blindfold,  rather  than  to 
elicit  truth,  then  it  is  very  lmp.''o|)er  to  have  anybody  to  examine  him  enough  to 
form  an  opinion.  It  has  been  said  that  this  looks  like  an  attempt  of  the  court 
to  have  the  man  found  insane.  Is  It  po.ssible  that  the  district  attorney  will  make 
sucii  an  admission  that  an  investigation  by  competent  physicians  must  lead  to  a 
verdict  of  insanity? 

"  You  .should  not  take  it  as  such,  and  I  hope  that  you  will  not  allow  even  his 
mistakes  to  prejudice  the  rights  of  the  people  on  the  one  side,  nor  anything  that 


240 


TIIK    I.KtiAL    TKST   itt'    INSAMTV 


Notes. 


tlio  rourt  limy  do,  to  affi-ft  tin-  jjrisoiu-r,  Yoiiiin-  not  tryliititluM-onrtorttiiy  of  its 
oMlrcrs,  liiit  the  saiiily  of  the  prisom-r.  Wliciu'vcr  any  Issiu'  is  iiimlt!  ai;ainstinc*, 
I  sliall  lu-  ;;la(l  toiiifct  it  luTf  ort'lscwiuTi'.  If  tin;  pnliiii-or  anyone!  wlio  repre- 
sents it  (iisii'es  to  set!  liny  .me  liiiiitf  witlioiit  an  opportunity  to  Ixiiow  wiietiier  lie 
is  ill  a  ]iroper  stale  of  niiiiil  to  lie  tried  ur  a  tit  subject  of  puubhuient,  tliey  must 
not  aslv  ine  to  assist  at  tlie  execution. 

"To  return  to  the  ipiestion  to  be  tried,  is  llie  prisoner  now  insane?  To  deter- 
iiiiiie  tliis  it  will  probably  be  nniieeessary  to  ^ive  you  a  dilinitioii  of  insanity;  it 
is  a  eonditionof  iiieiital  existence  wliieli  is  known  and  r«'eo;;iii/,ed  in  the  law8  of 
all  eiviii/.ed  States,  and  v/liieli  exempts  the  person  subject  to  it  from  ])unisli- 
iiieiit.  Its  symptoms  or  outward  m.inifestatioiis  are  well  known  iiy  those  who 
have  devoted  their  lime  and  attention  to  its  study.  Insanity  is  as  various  in  itH 
phases  and  effects  as  tlie  pirsons  in  wliom  it  appears,  yet  there  are  four  jjteuerul 
classes  into  which,  for  coiiv«'iiieiic«',  it  is  divided: 

"1.  Mania,  where  the  hallucination  or  delusion  is  general,  extending  to  ull 
objects. 

"2.  Monomnnia,  in  which  the  hallncinatinn  is  conlliied  to  a  single  object,  a 
class  of  objects,  or  a  limited  number  of  objects. 

";?.  Dementia,  or  madness,  where  the  jierson  alllicted  is  renilered  incapalile 
of  reasoning  in  coiise(|ueuce  of  functional  <Usorder  of  the  brain,  not  congenital  or 
lioru  with  the  person. 

"4.  Idiot  ism,  total  want  of  the  reasoning  powers  from  malformation  of  the 
form  of  thought,  at  the  time  of  birth. 

"  It  i.s  not  pretended  that  tlie  prisoner  is  an  idiot,  and  has  never  been  of  sound 
mind;  nor  do  I  think  it  can  be  claimed  that  he  is  absolutely  demented,  or  ren- 
dered incap'ble  of  rea.soning  upon  all  subjects;  his  lunacy,  if  it  exists  at  all,  is 
in  the  form  of  a  mania  or  monomania,  prolialily  the  latter. 

"  Your  position  in  a  case  of  this  kind  is  peculiar.  In  ordinary  trials  you  are  to 
hear  the  testimony  of  witnesses  as  to  the  existence  of  certain  facts,  and  on  them 
found  a  verdict.  Here  von  are  to  form  an  o|iinion  on  the  evidence  of  opinions. 
Thisr.siilts  from  the  nature  of  the  subject  of  iii<|iiiiy,  tlie  mind,  an  existence 
wliicii  is  invisible,  impenetrable,  in'aiigiiiie,  and  iiiimeasiirable.  The  minutest 
fllanuiit  of  matter,  the  air  itself,  can  lie  weighed,  buttliere  are  no  scales  iu  which 
the  mind  can  he  balanced. 

'*  If  the  title  to  land  is  in  dispute  the  deeds  and  conveyances,  the  surveyor's 
compass  and  ciiain  can  determine  the  <iuestion.  So  of  almost  any  action  or 
prosecution,  the  facts  as  detailed  by  the  witnesses  will  enable  a  jury  to  deter- 
mine the  (luestiou  at  issue.  But  here  the  |)oint  in  dispute  is  the  existence  or 
non-existence  "*  a  certain  mental  state.  It  is  not  even  the  amount,  but  the 
soiinihiess  of  mind. 

"  Ordinary  i>ersons,  no  matter  how  intelligent,  cannot  give  an  opinion,  but  any 
man  who  has  aciiuired,  as  an  addition  to  his  name,  tliC  letters  M.  1).,  be  he  ever 
so  ignorant,  can  give  you  his  opiiiioi'.  Another  riuestion  arises,  are  you  to  base 
your  verdict  upon  the  opinion  «f  medical  men  or  your  own? 

"On  tills  subject,  the  whole  theory  of  jury  trials,  and  the  reason  of  the  case, 
satisfy  ine  that  it  is  your  opinion,  and  not  that  of  the  doctors  w  hich  is  to  make 
up  the  verdict. 


TKST    IN    NKW    YOUK. 


241 


IVopli!  0.  Liikf. 


"  How  imicli  rfUaiRV  you  should  pluoe  on  the  opinion  of  a  njodical  witiKss,  de- 
pends n|)oii  his  sl\ill,  Ids  nuans  of  jud;;inK  of  liu'  true  nKiital  condition  of 
tlic  prisoner,  and  tlie  facts  he  details  to  you  as  tlie  Itasis  of  that  opinion. 

*'  Mathenialics,  chendstry,  philosoi)iiy,  and  surj^ery  are  sciences;  but  ntcdicine, 
unfortunately,  cannot  bu  ranked  anion^  them,  liet  ween  allopathy  and  hoiii(i>- 
opathy,  and  tlie  various  other  systems,  every  nostrum  and  every  humbu;;  has  its 
practitioners  and  its  victims,  iuit  there  are,  nevertheless,  anions  those  who  i»ur- 
sue  this  profession  scientillc  men,  whose  oi)linons  on  mental  or  physical  diseases 
are  entitled  to  consideration.  There  an;  certain  thin;;s  wliich  are  settled,  the 
state  of  the  pulse  and  skin  in  fever,  the  effects  of  ct-rtain  articles,  used  medi- 
cinally on  the  human  system;  so  there  are  certain  phenomena  which,  when  they 
exist,  are  adniilli-d  to  be  symptoms  of  insanity,  .\monu  these  are  wakefulness, 
want  of  appetite,  or  the  reverse,  an  e.xcited  pulse  with  cold  extremities  during 
the  absence  of  any  inthunmution,  heat  of  the  head,  melancholy,  an  expression  of 
the  eye,  hard  to  describe,  liiit  while  it  shows  intellectual  duliu-ss,  exhibits  a 
»*tare  or  wildness  easily  discernible  l)y  those;  acipiainted  with  insanity,  alternate 
lau^lhteriind  weeplnji,  withoutany  ixrceplible  or  sulllcient  cause,  a  suspicion  of 
friends.  These  >ympt(mis,  even  witli  those  known  to  lie  insane,  are  rarely,  if  ever, 
all  present  in  the  same  person,  ])Ut  the  I'xistence  of  any  number  of  them,  uccom- 
l>anied  by  incoherent  conversation  and  unusual  conduct,  ordinarily  prove  the 
patient  insane.  Do  these  sym|itoms  or  any  of  them  exist  in  the  case  of  the  pris- 
oner? The  sheriff  has  testified  in  reference  to  his  wakefulness;  that  he  had 
watched  him  and  never  found  him  sleepiu}:,  and  never  but  once  when  he  seemed 
to  have  been  sleepin<;.  Iloufihtalinji  has  ^iven  evidence  in  reference  to  his  want  of 
sleep  the  ni^lit  foHo\vin<j  the  murder.  The  only  proof  we  have  us  to  the  pulse 
shows  that  it  is  accelerated  or  faster  than  of  a  person  of  his  ajic  in  ordinary  health, 
it  is  shown  that  he  has  been  known  to  hiuj|;h  and  weep  alternately,  and  without 
any  apparent  cause.  That  he  is  and  has  been,  ever  since  the  liomicidc,  suspicious 
of  his  friends,  and  tliat  lie  refuses  to  confide  in  or  consult  with  his  counsel.  It 
is  also  an  evidence,  that  just  before  the  hondcide,  he  was  seen  while  in  the  pub- 
lic highway  to  stop  his  horse,  take  him  by  the  head,  lead  him  around  in  a  circle, 
then  drive  a  few  rods,  and  repeat  the  same  thing;  that  he  was  seen  sitting 
on  the  top  of  tlie  bureau  in  his  house,  with  his  feet  in  the  drawer,  laughing,  cry- 
ing, Uilking  incoherently,  and  striking  his  head  against  tlie  wall.  Tliese  symp- 
toms and  actions  are  all  consistent  with  insanity.  I  do  not  say  tliat  they  are 
controlling,  but  should  be  cjirefully  weighed  and  considered  by  you  in  deciding 
this  que.stiou. 

"  Every  one  who  has  heard  the  evidence  and  observed  the  conduct  of  the 
prisoner  during  this  trial,  will  agree  that  this  is  a  case  of  simulated  or  real 
insanity.  Which  is  it?  In  determining  this,  you  should  take  into  view  his  cir- 
cumstances in  life ;  the  opportunity  he  has  had  for  learning  the  real  spnptoms 
of  insanity.  If  he  were  a  physician  and  had  committed  crime,  it  would  be  far 
easier  for  him,  know  ing  the  symptoms  to  imitate  them.  The  only  evidence  we 
have  as  to  his  situation  is  that  he  has  lived  in  the  interior  of  the  country,  that 
his  circumstances  are  very  humble,  and  that  he  cannot  write  even  his  own  name. 
The  probabilities  are,  therefore,  that  he  has  little  if  any  learning  of  books,  and 
consequently  if  he  feigns,  does  it  without  knowing  the  precise  symptoms  neces- 
biiry  to  accomplish  his  object. 
IG 


24*^ 


TIIK    l.h'MAl.   TKST   OF    INSANITY. 


Ntilcs. 


«'  Tliore  was  a  fiict  Htatnl  by  Dr.  ITpton,  whlcli  in  my  nilii<l  wcIkIiciI  very  Htrongly 
in  favor  of  tliu  reality  of  his  inatliicss.  You  vlll  rciiiciiilu-r  tliat  wo  yesterday 
touiv  a  recess  of  tlie  court  to  allow  tliejiliysieiaMs  sulipieuai'd  a;!aiiisttlic  prisoner 
to  examine  him.  This  examination  was  conducted  l>y  Dr.  I'pton,  wlio  asked  the 
prisoner  why  lie  travelled  so  nuieh  In  the  nl;;ht,  just  before  the  homicide.  To 
this  he  replied  that  iie  could  <;et  no  rest  nt  home,  and  in  de.scrii)ini;  tlie  methods 
resorted  to  to  obtain  rest  said  he  was  In  the  habit  of  ^oin^  down  Htains  and 
leaning  against  the  bags  of  oats  to  sleep,  Instead  of  sleeplni;  In  a  l)ed.  Heck,  in 
his  Medical  Jurisprudence,  (piotinK  from  Il.isam,  says:  '*Tho  symptoms  are 
aggravated  being  placed  In  a  recumbent  position;  and  patients,  when  In  the 
raving  state,  seem,  of  them.selves,  to  avoid  tlie  horl/.ontal  position  as  much  as 
possible,  and  when  so  conllned  that  they  cannot  be  erect,  will  keep  them.selves 
seated.  This  remark  ap|)lle.s  e(|Ually  to  mania  and  mcnonKinla."  If  Lake  prior 
to  the  murder  could  not  sleep  idghts,  could  tlud  no  rest,  went  Instinctively  to  a 
place  where  he  could  lean  against  the  l»ag  of  oats,  Insli'ad  of  lying  upon  a  bed  to 
sleep —  here  Is  a  very  strong  evidence  of  In.sanity.  It  is  scarcely  possible  that  he 
yesterday,  when  stating  this  fa<-t  to  the  physicians,  knew  Its  effect  as  evidence,  for 
it  seemed  to  attract  no  attention  from  them,  and  had  not  been  alluded  to  by  counsel ; 
but  to  my  mind,  it  Is  a  most  controlling  circumstance  In  the  case,  and  irreconcilable 
with  the  theory  of  simulated  insanity.  Again,  we  (ind  that  yesterday  when  the  court 
adjourned  It  was  aiuiounced  in  the  prisoner's  presiiice  that  the  object  was  to 
allow  i)hyslcians  to  make  a  personal  examination,  and  testify  In  reference  to 
him.  They  did  make  that  examination;  then,  If  ever,  he  would  have  feigned 
Insanity  or  \  •ould  have  refused  to  answer.  Hut  on  the  contrary  he  answered 
every  »|Ue.stlon,  was  accurate  in  tiates  until  he  was  asked  In  reference  to  the 
hondcide;  and  as  to  that  .said  if  his  '  wife  was  black  then  It  was  all  right;  if  not 
then  he  was  accountable;'  and  as  a  reason  for  killing  his  children,  that  '  when 
the  body  went  down  to  the  ground  It  needed  neither  food  nor  raiment.'  This 
to  mo  resembles  delusion  far  more  than  simulation. 

"Again,  wakefulness  cannot  be  feigned  for  any  continued  length  of  time.  Dr. 
Beck  says:  '  Pretenders  are  unable  to  prevent  sleep.  That  wakefulness  which  Is 
so  constant  an  attendant  on  the  In.sane,  is  .scarcely  to  be  |)re.served  for  any  length 
of  time  by  tho.se  who  are  In  actual  health.'  lie  then  cites  the  case  of  a  seaman, 
who  to  escape  punishment,  enacted  the  part  of  a  furious  maniac;  sound  sleep 
overpowered  him  on  the  second  night  of  attempt.  This  must  be  so;  for  sleep  is 
not  a  voluntary  state.  No  man,  by  his  mere  volition,  can  put  himself  to  sleep, 
nor  ciin  the  strongest  ■will,  unaccompjinied  by  mental  and  physical  excitement, 
prevent  it.     Hoth  mind  and  body  re(|uire  it,  and  it  comes  unbidden. 

"  The  counsel  for  the  prisoner  insists  that  the  homicide  Itself  proves  the  Insanity 
of  the  perpetrator.  To  hold  this  sulllcient  evidence  to  establish  insanity  would  l)c 
dangerous;  but  it  is  projuT  to  e.vamine  the  act  with  all  its  attendant  circum- 
stances, and  .see  whether  it  is  most  consi.stent  with  real  or  pretended  insanity; 
see  if  yon  could  discover  a  motive,  or  a  sutllclent  motive;  whether  these  victims 
stood  in  his  way,  wliether  there  was  any  jealousy  of  his  wife.  And  in  doing  this 
yon  are  to  regard  the  prisoner  as  a  human  being,  possessed  of  moral,  intellectual 
and  physical  faculties,  swayed  by  passions  and  actuated  by  affections.  But  you 
will  not  allow  tlie  iitrocity  of  the  act  alone  to  satisfy  you  of  the  Insanity  of  the 
perpetrator. 


TEST    IN    NKW    YOKK. 


213 


Pi'oplf  V.  Lakf,  Willis  t'.  Pfdplo. 


"  I  r('«r«'t  tlmt  you  hiivc  not  imd  more  aid  from  professional  nii'ii  of  MilTlrii'iit 
skill  to  (Iclcriiiliiu  tlic  prisoner's  actual  condition.  The  same  antliur  from  whom 
I  have  beforo  qinMi'd,  says:  ♦Madness  Is  most  commoidy  feiu'ned  for  the 
purpose  of  escaping  tlie  pnidslinient  due  to  crime,  and  the  responsil>ility  of  tlie 
medical  examiner  is  eonse(iuently  frnat.  It  is  his  duty  and  should  lie  his  privi- 
h'iiv,  to  spend  several  days  in  tlie  cxundnation  of  u  lunatic,  liefore  he  pronounces 
a  decided  oplidon.'  Tins  has  been  ne^ilected  In  this  case,  thoniih  the  prisoner 
has  for  nearly  two  years  occupied  ii  cell  in  your  jail.  Hut  you  are  now  <m  all  tiie 
cvi«lencc  that  has  been  procured,  to  llnd  a  verdict.  In  condutf  ton  conclusion, 
you  will  i'emend)er  tliat  every  man  Ispr'sunied  sane,  and  rciponsilile  for  his 
acts,  until  liie  ctmtrary  is  proved,  and  tlierefore  that  tiie  alllrmative  of  the  issue 
is  with  the  prlsoniT.  If  the  evidence  .satislies  you  that  he  Is  Insane,  so  tliat  lie 
cannot  make  a  rational  defence  to  the  ludi<tmenl.  >  mi  will  s.iy  so,  and  he  will 
flien  bo  placed  where  he  will  be  treated  for  his  disea.-r,  and  If  restored  to  sanity, 
will  be  tried  for  the  offence.  If,  on  the  contrary,  the  evidence  fails  to  s.itisfy 
that  lie  is  insane,  you  will  pronounce  him  sau'  .  md  \\<  will  tlun  proceed  to  his 
trial  for  the  crime.  You  will  not  fail  to  renumber  diirin!:  your  deliberations, 
tliat  i'.  Is  you  who  arc  to  settle  this  «pu'stioii.  and  not  ti.  -oiirt ;  that  If  any  intima- 
tion oi  an  opinion  lias  Inadvevlently  escaped,  ym  \Md  only  rejrard  It  u^  far  as 
it  was  supported  l)y  satisfact(»ry  reasons.  The  prisoner,  If  insane,  Is  most 
unfortunate  In  having  been  8o  lon^  conflned,  and  treiiled  merely  as  a  crindnal; 
if  he  is  not  insane  he  is  still  more  unfortunate  in  beinji  the  perpet'^itorof  a  mur- 
der, which  in  its  atrocity  is  scarcely  paralleled  in  tlie  dark  aimids  of  crime." 

The  jury  found  Iho  prisoner  insane. 

In  Willis  V.  People,*  tlie  prisoner  was  indicted  for  tlie  murder  of  Mary  E. 
Phelan,  by  stabbiiifj.  His  defence,  was  insaidty,  l)iit  he  was  convicted.  Onappcal 
to  the  Court  of  Appeals  for  errors  in  tiie  judiie's  chariie,  the  judf^tiwut  was 
alllrmed.'  "  I  am  of  opinion,"  .said  Dknio,  C.  J.,  "  tliat  tlie  cliarjro  in  its  f^eneral 
scope  was  entirely  correct,  ami  that  there  was  no  error  in  the  particidar  part 
which  was  specially  excepted  to.  The  judge  instructed  the  jury,  in  effect,  that 
;in  irritable  temper  and  an  excitable  disposition  of  mind  did  not  constitute  In- 
sanity; that  an  individual  possessinji  such  mental  pecidiarities  was  more  predis- 
posed to  an  attack  of  insanity  than  men  in  {renerai,  but  was  not  on  that  account 
actually  insane;  that  .such  peculiarities  were  not  of  themselves  evidence  of  In- 
sanity. He  then  i)roceeded  to  state  what  <lid  cotistitulo  uieiital  alienation,  and 
said  that  if  at  tlie  time  of  tlie  act  the  person  was  under  a  delusion,  and  did  not  know 
ri?:ht  from  wron;;,  or  lliat  the  act  was  an  offence  or  was  wrouir,  he  was  insane 
and  was  not  responsible  for  the  act;  l)ut  that  a  person  w.is  not  Insane  who  knew 
ri;;lit  from  wrong,  aud  that  the  act  he  was  committiiiy;  was  a  violation  of  law  and 
wrong  in  itself.  These  positions  were  laid  down  in  an  abstract  form.  Tlie  judge 
might  have  said  that  if  the  prisoner,  wlien  ho  killed  the  decea.sed,  was  in  such  a 
state  of  mind  as  to  know  that  the  deed  was  unlawful  and  morally  wrong,  he  was 
responsible,  and  that  otherwise  he  was  not.  Tliis  would  perhaps  have  been  more 
precise  and  discriminating;  butastlic  jury  was  only  concerned  with  the  prisoner's 
condition  when  he  committed  tlie  act,  wliicii  was  under  investigation.  It  was  im- 
possible that  the  instruction  sliould  have  beeu  misunderstood.    The  prisouer's 


1  5  Park.  621  (1864). 


5  Willis  r.  People,  .Ti  N.  Y.  715  (1865). 


244 


THE    LEGAL   TEST    OF    INSANITY. 


Notos. 


counsel  must  have  boon  of  tliat  opinion,  for  tiicy  did  not  require  tiiat  it  sliould 
be  pointed  more  distinctl.v  to  tlie  i^illin};  of  tlie  deceased.  Tiie  general  correct- 
ness of  tlie  position  laid  down  cannot  l)c  qu-  stioned.  It  is  in  substance  and  in 
tlie  lansiuage  usually  iulupted,  and  wliicii  is  sanctioned  by  tlie  authorities." 

In  People  v.  Montgomeri/,^  the  prisoiur  was  indicted  for  tlie  murder  of  his 
wife  in  Rocliester,  N.  Y.,  November  V.',,  1870.  On  tlie  trial  the  killing  was  con- 
ceded. Tlie  defence  was  the  prisoner's  insitnUy  at  the  lime  the  crime  was  com- 
mitted. He  was  u  young  man  of  twenty-two  years  of  age;  he  had  been  married 
two  years;  liis  wife  was  a  woman  of  bad  character.  She  had  left  iiim  a  short 
time  l)efore  he  killed  her,  and  liad  gone  to  live  in  a  house  of  ill-fame.  She  had  a 
child  nine  montlis  old;  tliis  child  lie  kept,  and  took  care  of  himself  during  the 
nights ;  it  was  taken  care  of  at  his  fatlier's  during  the  day.  The  care  of  the  cliild 
deprived  him  of  sleep,  and  this  contributed  somewhat  to  produce  the  condition 
of  body  and  mind  in  wliicli  he  was  sworn  to  be  for  several  days  prior  to  the  kill- 
ing. During  Iiis  infancy  he  had  been  subject  to  epileptic  lits,  and  he  had  had  them 
on  severil  occasions  subsequently.  He  liad  a  disease  of  tlie  i,A'iin  also.  The  effect 
of  both  was  to  bring  on  dementia,  which  had  the  effect  of  enfeebling  tlie  mind. 
His  trouble  with  his  wife  excited  and  annoyed  him  very  mucli.  He  loved  her, 
notwithstanding  he  knew  she  was  having  intercourse  with  other  meu,  and  he 
could  not  bear  parting  from  her,  and  was  willing  to  take  her  back  and  live  witli 
her,  if  slie  would  return  to  him  and  conduct  herself  properly.  This  slie  had 
refused  to  do.  Tlie  afternoon  before  the  killing,  his  wife's  uncle  called  on  him, 
and  proposed  to  liim  t(j  go  and  see  liis  wife  and  try  and  induce  her  to  return  and 
live  witli  liim.  They  went,  and  after  some  negotiation  slie  returned  with  them  to 
the  prisoner's  house,  taking  with  lier  her  child;  and  she  and  the  prisoner  remained 
together  throughout  the  night.  In  the  morning  he  got  up  before  she  awoke;  he 
found  an  axe  in  the  room,  took  it  in  his  hand,  raised  it  and  held  it  some  five 
minutes;  and  (as  he  afterwards  said)  tried  not  to  strike  her,  but  his  temper  got 
the  better  of  him,  or  an  impulse  to  kill  her,  which  he  could  not  resist  impelled 
liim.  He  struck  and  killed  her;  or,  as  he  told  one  witness,  cut  her  head  off . 
On  repeated  occasions  withi:.  the  we>,'k  before  the  killing,  he  talked  and  acted 
like  an  insane  man,  his  face  was  flushed  and  his  manner  excited.  Three  physi- 
cians of  the  largest  experience  and  greatest  intelligence,  gave  it  as  their  opinion 
that  in  view  of  his  acts  and  conversations,  and  of  the  bodily  and  mental  condition 
in  which  they  found  him,  lie  was  insane  at  the  time  the  crime  was  committed. 
Other  physicians,  gave  it  as  their  opinion,  that,  judging  from  the  facts  proved 
on  the  trial,  he  was  sane  when  he  committed  the  murder.  Several  persons  who 
had  known  the  prisoner  for  years  and  hiid  transacted  business  with  him,  testified 
that  they  had  never  discovered  any  evidence  of  insanity  in  his  conduct  or  deal- 
ings. After  killing  his  wife,  tlie  prisoner  took  a  razor  and  went  to  the  barn,  and 
attempted  to  cut  his  throat,  but  was  prevented  by  the  interference  of  his  father 
and  brother.  On  the  same  morning,  and  after  the  crime  was  committed,  he  sur- 
rendered himself  to  the  police  of  Rochester;  and  on  his  way  to  the  police  office, 
he  met  a  man  of  whom  he  was  accustomed  to  l)uy  feed  for  liis  horse,  and  told 
him  his  father  would  pay  what  he  (the  i)risoiier)  owed  him.  After  he  was  taken 
into  custody  some  of  the  witnesses  testify  that  he  was  very  much  excited ;  his 


'  13Abb.  Pr.  (n.  s.)  207. 


TEST   IN   NEW   YOHK. 


245 


Peopk'  V.  Montijoinery. 


acts  and  sayings  were  irrational;  others  wlio  saw  him  testify  to  liis  relation  of 
the  killiny;  ami  the  circumstances  attending  it,  from  wliicii  It  would  appear  that 
he  told  the  transaction  intelliitently  and  substantially  as  it  must  have  occurred. 
The  jury  found  him  fjuilty,  and  he  appealed  to  the  Supreme  Court.  The  follow- 
ing judgment  was  there  delivered: 

"  Ml'llen,  p.  J.  (after  stating  the  facts)  :  "  I  have  given  this  very  brief  s\Tiop- 
sis  of  the  evidence  to  show  that  tlie  evidence  was  conflicting,  and  that  it 
presented  a  case  which  it  was  peculiarly  witiiin  the  province  of  the  jury  to 
decide.  Unless,  therefore,  some  rule  of  law  has  been  violated,  the  verdict  must 
stand,  even  if  we  should  be  of  ihe  opinion  tliat  upon  the  evidence  we  should 
have  arrived  at  a  conclusion  different  from  that  at  which  the  jury  has  arrived. 

"  Several  of  the  witnesses  who  testify  as  to  the  appearance  and  conduct  of  the 
prisoner,  during  the  week  preceding  the  homicide,  were  his  relations,  and  it  is 
not  doing  them  any  injustice  to  say,  that  the  jury  would  be  justified  in  making 
some  allowance  for  the  bias  under  which  they  would  naturally  testify  whether 
they  were  called  by  the  People  or  the  prisoner.  It  may  be  conceded  for  the  pur- 
poses of  the  case  that  the  weight  of  evidence  is,  that  the  prisoner  was,  at  the 
time  of  the  killing,  insane;  but  we  cannot  for  that  reason  set  aside  the  verdict, 
unless  the  preponderance  is  so  great  against  it  as  to  justify  the  inference  that  it 
was  the  result  of  passion  or  prejudice.  No  such  inference  can  lie  fairly  drawn 
from  the  evidence  given  on  the  trial.  The  case  is  one  in  Avhich  the  verdict  might 
properly  be  rendered;  and  being  rendered,  the  court  cannot,  and  ought  not  to 
set  it  aside. 

"  This  brings  us  to  the  inquiry  whether  any  error  was  comuiittcd  by  the  court 
on  the  trial,  or  in  the  charge  to,  or  refusal  to  charge  the  jury. 

"The  first  exception  of  the  prisoner's  counsel  is  to  the  charge  of  the  court; 
that,  when  the  proof  shows  a  case  of  fixed  or  of  confirmed  insanity,  the  People 
were  bound  to  prove  that  the  criminal  act  was  committed  in  a  lucid  interval,  or 
after  the  prisoner  was  restored  to  his  right  mind.  This  instruction  was  not 
excepted  to  by  the  prisoner's  counsel,  and  the  question  whether  it  was  a  proper  in- 
struction is  not  before  us.  Instead  of  excepting,  the  counsel  requested  the 
court  to  charge  that  habitual  insanity  hiiving  been  proved  it  devolves  on  the 
prosecution  to  prove  more  than  that  the  prisoner  has  been  restored  to  a  cooler 
moment,  an  abatement  of  pain  or  violence,  or  of  a  higher  state  of  torture;  to  a 
mind  relieved  from  excessive  pressure.  The  prosecution  must  affirmatively 
prove  that  the  act  was  conunitted  in  an  interval  in  which  the  mind,  having  thrown 
off  the  disease,  had  recovered  its  general  habit.  The  judge  refused  to  vary  his 
charge,  and  the  defendant's  counsel  excepted. 

"  The  standard  that  the  request  asked  the  court  to  adopt,  by  which  to  determine 
whether  the  prisoner  was  responsible  for  homicide,  is,  whether  his  mind,  at  the 
time  of  the  conmilssion  of  the  crime,  had  thrown  off  tlie  disease  under  which  it 
hud  been  suffering  and  had  recovered  its  general  habit.  By  the  general  habit 
I  suppose  is  meant  its  normal  sound  condition. 

"  Whatever  may  be  the  rule  on  this  subject  in  England  or  In  the  other  States  of 
the  Union,  this  is  not  the  test  in  this  State  by  wliich  responsibility  for  crime  is 
determined.  If,  when  insanity  is  shov.n,  it  is  incumbent  on  the  prosecution  to 
show  that  It  has  altogether  ceas'd  to  exist,  that  the  minil  has  thrown  off  the 


24  fi 


TIIK    LEdAL    TEfST   OF    IN8AMTY. 


Notes. 


disease  and  is  restored  to  a  lieultliy  conditioti,  tlie  conviction  of  an  offender  would 
be  praetically  imp()ssil)le. 

"  Tin;  evidence  of  tlie  pliysicians  in  tins  case  sliows  tliat  a  man  may  appear  to 
lie  sane,  tliat  lie  may  tall<  and  act  lilvc  a  sane  man,  and  yet  be  in  fact  insane;  and 
after  a  lapse  of  time  l)ecome  really  sane,  and  be  entirely  forgetful  of 
all  that  transpired  dnrinii  the  period  when  ho  was  supposed  t<)  be  of 
unsound  mind.  If  perfect  .soundness  of  mind  must  bo  established,  in 
order  to  make  a  person  liable  ft)r  crime,  we  may  as  well  confes.s  at  once  that 
it  is  impossil)lo  to  .say  with  certainty  that  any  man  who  commits  crime  is 
sane,  aiul  therefore  responsible  for  his  acts,  (lod  alone  can  determine  when 
and  to  what  extent  man  Is  responsible  for  violation  of  either  human  or  divine 
laws.  Laws  must  be  passed,  prohibitinj;  and  punishius;  crime.  Tiio  courts  that 
are  required  to  adndnister  such  laws,  know  tiiat  crimes  are  not  unfre<iuently 
committe<l  l)y  persons  who  are  not  mentally  capable  of  distinsjnishins;  between 
what  is  riiiht  and  what  is  wroujr,  and  that  such  persons,  both  by  the  laws  of  God 
and  man,  should  not  be  held  responsible  for  their  acts,  while  in  that  condition. 
In  applyiuii  this  standard  of  responsibility  they  brinj;  to  this  case  all  the  learning? 
and  experience  they  |)ossess.  Tln-y  nnist  not  decline  or  even  hesitate  to  decide 
because  they  may  tiud  jtuilty  and  puinsli  those  who  are  innocent;  but  havint: 
done  all  that  lies  in  tlu-ir  power  to  arrive  at  the  truth,  they  must  punish  or 
acquit,  as  in  view  of  all  the  considerations  that  are  presented  to  their  nunds 
they  shall  deem  to  be  ri:iht.  They  may  be  mistaken,  but  honesty  of  pur|)Ose  and 
of  effort  to  arriv  at  the  truth  must  furiush  the  excuse  for  the  error,  if  one  is 
committed.  A  man  may  be  insane,  and  yet  be  capable  of  distinjjuishin^  between 
rii^ht  and  wroni;.  It  is  only  when  the  insanity  nas  taken  possession  of  the  whole 
mind  so  as  to  obliterate  altoj^ether  the  capacity  to  make  this  distinction  that  he 
becomes  irresponsible. 

"  In  Freeman  v.  People,*  it  was  held  that  when  insanity  is  relied  on  as  a  defence 
for  criuio  the  question  for  the  jury  is,  whether  at  the  time  of  committiui;  the  act 
the  accused  was  laixwinu;  under  such  mental  disease  as  not  to  know  the  nature 
and  quality  of  the  act  he  was  doiiiix,  or  that  it  was  wronu;.  In  Willis  v.  People,- 
it  was  hehl  that  the  projier  instruction  to  llie  jury  in  a  case  of  honncide  when 
insanity  was  relied  on  as  a  defence  was,  that  if  the  prisoner  when  ho  killed  the 
deceased  was  in  such  a  state  of  mind  as  to  know  that  the  deed  was  unlawful 
and  morally  wronu;,  he  w:is  responsible;  and  that  otherwise  he  was  not.  In  this 
case  the  decision  of  the  Supreme  Court  in  the  case  of  Freeman  was  approved. 
Lord  M.vNsi'iin.n,  in  the  case  of  Bellinjiham,  l.dd  down  the  rule,  by  which  the 
<|(iestion  of  responsibility  or  irresitonsibility  of  the  accused  was  to  bodetermlned 
as  follows:  In  ,)rder  to  support  the  defence  of  insanity  it  ou^ht  to  bo  proved  by 
the  most'distiuet  aiul  nutiuestionablo  evidence,  that  the  prisoner  was  incapable 
of  judiiina;  between  riatht  and  wronij;  that,  in  fact,  it  must  bo  proved  beyond  all 
doubt,  that  at  the  time  he  committed  the  act,  that  he  did  not  consider  that  mur- 
der was  a  crime  aij;ainst  the  laws  of  God  and  nature.  Lonl  r^NimuKST  in  Rex 
V.  Offord  inquired,  '  Did  the  prisoner  know  that  In  dolna;  the  act  hj  offended 
against  the  laws  of  God  and  man? ' 


>  4  Den.  ;>. 


a  32  N.  Y.  715. 


^ 

i 


TEST    IX    NEW   YORK. 


247 


People  V.  Montgomery. 


•*  By  the  Scotch  law,  the  insanity  must  be  of  such  a  liind  as  entirely  to  deprive 
the  prisoner  of  the  use  of  reason,  as  applied  to  the  act  in  question,  and  tlie 
knowledge  that  he  was  dolus;  wrong  in  committing  it.  If  though  somewhat 
deranged,  he  is  able  to  distinguish  riglit  from  wrong  in  his  own  case,  and  to 
know  that  he  was  doing  wrong  in  the  act  which  he  connnitted,  he  is  ruil)le  to  the 
full  punishment  of  his  criminal  act.  In  the  case  of  Abner  Rogers,  Chief  Justice 
SiiAW  laid  down  the  rule  as  follows:  A  nuin  is  not  to  be  excused  from  responsi- 
bility, if  he  has  capacity  and  reason  sullicient  to  enable  him  to  distinguish 
between  rigiit  and  wrong,  as  to  the  particular  act  he  was  then  doing.  A  knowl- 
edge and  consciousness  that  tlie  act  he  is  doing  is  wrong  and  criminal,  will 
subject  him  to  punishment;  altliougli  he  may  be  laboring  under  partial  insanity, 
if  he  still  understood  the  nature  and  character  of  his  act  and  its  consequences, 
if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  mental  power  to  apply 
that  knowledge  to  his  own  case,  and,  to  know  tliat  if  he  does  the  act,  he  will  do 
wrong  and  rec(,'ive  punishment,  sucli  partial  insanity  is  not  sullicient  to  exempt 
from  responsibility  for  criminal  acts. 

"Tlie  English  courts  hold  that  it  is  no  defence  for  a  crime  that  the  prisoner 
supposes  he  is  redressing  an  injury  or  grievance.  In  Massacliusetts  the  rule  is, 
that  if  the  imaginary  facts  would,  if  true,  justify  the  act,  then  he  is  excusal)le, — 
as  when  the  prisoner  supiwsed  that  the  person  was  almut  to  kill  him,  and  he 
slays  the  other  in  self-defence,  there  must  be  an  immediate  apprehension  of 
(langer, 

♦♦  It  follows  from  tliese  principles,  that  proof  that  the  accused  was  insane  when 
the  crime  was  committed  is  not  enougii  to  reiiuire  the  jury  to  ac<|uit.  It  must 
be  shown  that  tlie  insanity  was  sueli  as  to  destroy,  for  the  time  at  least,  the  con- 
sciousness of  the  distinction  between  riglit  and  wrong. 

"  When  such  a  degree  of  insanity  is  established,  the  People  must  prove,  in  o  '  r 
to  convict,  that  when  tlie  crime  was  committed  the  insanity  had  at  least  tem- 
porarily passed  away,  leaving  the  prisoner  in  tliat  condition  of  mind  in  which  he 
was  morally  and  legally  responsible  for  the  crime.  Proof  of  insane  acts  or 
ileclarations  that  are  not  of  a  nature  to  indicate  disease  of  the  mind  that  extends 
to  all  its  manifestations,  or  that  are  not  in  their  nature  peniianeiit,  fall  short 
of  establishing  a  defence  for  crime.  The  insanity  proved  in  this  ease  produced 
great  excitement,  and  it  had  enfeebled  the  prisoner's  mind;  but  lie  was,  as  a  gen- 
eral thing,  capable  of  transacting  business,  of  conversing  inarational  manner,  and 
of  characteri/iiig  the  character  and  conduct  of  his  wife,  and  of  appreciating  the 
danger  to  which  his  child  would  be  exposed  if  brought  up  among  the  associates  its 
mother  had  taken  up  her  abode  with, 

"  I  am  of  the  opinion  that  the  learned  judge  gave  to  the  jury  the  correct  rule  as 
to  what  constitutes  a  lucid  interval  in  view  of  the  facts  proved  before  liini.  It 
cannot  be  said  truthfully,  that  the  prisoner  was  laboring  permanently  under  that 
degree  of  insanity  that  rendered  him  irresponsible  for  crime. 

"  The  next  exception  of  the  counsel  is  to  the  instruction  of  the  jury,  that  it  was 
unnecessary  for  them  to  consider  any  other  malice  in  this  case  than  that  which 
was  implied  in  a  premeditated  design  to  kill. 

"The  counsel  does  not  claim  that  the  law  does  not  imply  malice  from  the  pre- 
meditated killing  of  a  human  being;  that  proposition  is  too  well  and  too  long 
established  to  be  (luestioucd  at  this  day.     He  does  not,  in  terms,  claim,  that 


i>48 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


actual  malice  toward  the  deceased  should  be  proved,  in  order  to  justify  a  convic- 
tion; but  his  view  seems  to  be  that  the  killing  was  not  premeditated,  bnt  the  re- 
sult of  an  insane  Impulse  which  he  had  not  the  power  to  resist.  If  such  Avas  tin- 
cause  of  the  killing  it  was  not  premeditated  within  the  meaning  of  that  term,  as 
dellned  by  courts  and  writers  on  criminal  law;  so  I.  am  unalile  to  perceive  that 
part  of  the  charge  excepted,  could  affect  the  prisoner  injuriously. 

"The  prisoner's  counsel  offered  to  prove  that  his  mother,  fnmi  his  childhood, 
spoke  of  him  as  being  discasi-d  in  mind,  and  that  he  was  called  in  the  family, 
crazy.  This  evidence  was  objected  to,  uud  rejected ;  and  the  prisoner's  counsel 
excepted. 

"  The  counsel  luis  cited  no  case  which  holds  such  evidence  admissible,  except 
Wriijht  V.  Tiilham.^  I  am  unable  to  discover  anything  in  that  case  that  supports 
the  counsel's  proposition.  The  ((uestion  there  was,  whether  letters  found  in  the 
house  of  the  testator,  purporting  to  be  addressed  to  him  by  third  persons,  were 
competent,  in  which  he  was  addressed  as  compos  mrntis;  but  there  was  no  evi- 
tlence  to  show  that  he  had  ever  answered  them,  or  recognized  them  in  any  way; 
and  they  were  rejected.  They  were  utterly  incompetent.  It  was  shown  in  that 
case,  that  children  in  the  street  called  and  treated  the  testator  as  an  iiliot;  and 
this  evidence  was  held  competent,  not  to  prove  the  declarations  made,  but  the 
manner  in  which  the  testator  received  them.  It  is  on  this  princii)le  that  state- 
ments of  third  persons  not  made  to  or  in  the  hearing  of  the  person  alleged  to  be 
insane,  are  inadmissible.  The  declarations  or  opinions  of  the  mother  are  no 
more  competent,  on  the  question  of  tlie  prisoner's  insanity,  than  those  of  any 
other  person.  It  is  not  one  of  those  facts  that  can  be  proved  by  hearsay  or  repu- 
tation. The  prisoner  had  the  benellt  of  tlie  fact,  that  relations  of  his  father 
had  been  insane. 

"  The  particidars  of  the  case  were  of  no  moment.  Their  insanity  was  an  impor- 
tant link  in  the  chain  of  evidence  to  establish  the  prisoner's  insanity.  The  simi- 
larity of  symptoms  or  of  conduct  could  be  proved  by  showing  the  .symptoms  and 
conduct  of  each.  But  to  permit  a  person  not  an  expert  to  determine  their  simi- 
larity, would  be  to  pernnt  the  witness  to  determine  the  very  (piestion  that  was  to 

be  determined  by  the  jury." 

The  judgment  was  affirmed. 
In  People  v.  Walts,^  the  prisoner  was  indicted  in  a  New  York  court  for  a 
murder  conimitted  in  May,  187;i;  he  was  convicted  and  executed.  On  the  trial 
Wkstbkook,  J.,  charged  the  jury  as  follows:  "  On  the  2Ist  day  of  April,  I87o, 
the  deceased,  a  resident  of  Albany,  and  a  scissors'  grinder  by  occupation,  left 
home  upon  a  tri|>.  It  was  u  trip  such  as  he  was  accustomed  periodically  to  make 
in  diff'Tcnt  sections  of  the  country  to  follow  his  occupation.  He  llxed  the  date 
when  he  would  return,  which  was  somewhere  about  the  beginning  of  May.  Not 
having  relumed  by  the  time  appointed,  and  the  family  having  become  somewhat 
uneasy  frt)m  his  continued  and  protracted  absence,  his  widow  and  her  son-in-law 
(Mr.  Kelch)  left  Albany  in  search  of  llolcher.  They  went  to  Hudson,  Ron- 
dout,  Poughkeepsie,  and  Catskill,  and  thence  to  the  residence  of  the  father  of 
the  prisoner,  at  whose  house  the  prisoner  also  resided.  They  there  had  an  inter- 
view with  the  prisoner  and  his  father.    I  need  not  now  go  over  in  detail  that 


1  34  E.  r.  L.  ITS. 


8  ."iO  How.  Pr.  204  (1874). 


TEST    IX    NEW    YORK. 


249 


rcopk-  r.  Waltz,  continued. 


interview,  I  sliull  have  occasion  to  speak  of  it  by  and  l)y  on  anotlier  brancli  of  tlie 
ciise.  Tliey  returned  from  tliat  interview  to  Ali)any.  Tlie  next  day  tliey  returned 
fri)n»  All)any  to  C'atsliill;  having  procured  a  warrant  for  tliu  prisoner,  ami  also  a 
searcli  warrant,  tliey  proceeded,  in  company  witliOllieer  Ernest  and  uuder-slu  rift 
Bennett,  to  the  resideneeof  the  prisoner  and  his  fat  in  r.  Wiien  tliey  reaehed  this 
dwelliu;L?  an  examination  of  tlie  premittes  tiiat  in  a  room  in  tlie  building,  that  was 
pointed  out  as  the  room  where  llolcher  slei>t,  there  was  blood  upon  the  floor, 
wliieli  had  lieeii  partially  erased  l)y  serapini;,  partially  by  plaining,  and  partially 
covered  over  l)y  paint,  and  that  blood  led  from  this  spot  across  tlie  room  and  tlie 
liitclien  to  tlie  outer  door.  Tliey  also  found  lilood  upon  the  partition 
separating  tliis  room,  as  I  understand  It,  from  tlie  room  in  wliich  tlie  prisoner 
slept ;  in  tlie  wood-house  they  found  the  lounge,  wliieli  had  the  appearance  of 
having  been  recently  washed,  and  on  opening  tlie  lounge  tliey  found  a  (|uantity 
of  blood  partially  hidden  and  partially  covered  over  by  ink,  or  .some  black  sub- 
stance. Pursuing  tlieir  investigatiun  over  tlie  premises,  they  found  a  spot  upon 
a  road  lea  ling  to  the  back  part  of  the  farm  wliere  tlie  machine  of  the  scissor's 
grinder,  evidently,  had  been  burned.  They  found  the  ashes,  liinges,  screws,  and 
some  other  parts  of  the  machine.  They  also  found,  at  a  i)lace  near  where  the 
wall  was  lower  than  at  other  places,  a  nuinbi-r  of  bloody  stones.  Having  made 
these  discoveries  they  arrest  the  prisoner.  After  a  denial  of  his  guilt,  and  after 
an  incarceration  for  a  time  in  tlie  jail,  he  tells  them  that  if  tliey  will  take  him  I/ack 
to  the  old  farm  again,  that  he  will  point  out  to  them  the  place  wliere  the  Ixxly  of 
llolcher  lay;  they  took  him  to  tlie  farm;  he  goes  about  the  premises,  and  having 
viewed  tlieni,  lie  proceeds  to  the  house;  he  directs  one  man  to  go  out  an<l  an- 
other man  to  stay  in,  and  in  tlie  midst  of  tlie  company  which  he  had  selected,  he 
asks  them  to  tell  him  of  what  he  has  lieen  accused.  They  say  he  has  been  accused 
of  this  murder  and  of  robl)ing  school-houses,  and  after  liearing  the  accusations, 
he  proceeds  to  make  a  confession,  whicli  confession  admits  tiie  killing,  tlie  burial 
and  secretion  of  the  body,  and  ends  by  conducting  tlie  people  to  the  spot  wliere 
the  deceased  was  interred,  and  an  excavation  showed  tlie  same  in  all  its  horrid 
details.  There  can  be  no  doubt  but  that  the  prisoner  did  tiiis  deed.  Indeed,  his 
counsel  in  opening  and  closing  have  frankly  conceded  that  he  did  the  act.  80 
that  in  regard  to  the  commission  of  the  homicide,  tlien-  is  no  dis|)ute.  Her- 
man Holcher  came  to  a  violent  and  untimely  death  at  the  hands  of  the  pris- 
oner, and  may  I  uotfurther  say,  that  if  the  prisoner  was  capaiile  of  reasoning,  if 
he  was  capable  of  reflection,  and  of  understanding  the  act,  that  the  killing 
was  with  the  design  which  tlie  statute  marking  the  crime  of  murder  in  the  lirst 
ikgree,  emphasizes?  But  it  is  .said  in  the  prisoner's  belialf,  and  this  is  an  im- 
portant and  solemn  question  you  are  to  decide,  though  he  did  do  this  act,  lie  is 
not  responsil)le  for  its  commission ;  that  he  is  insane ;  that,  though  the  hand 
wielded  the  hatchet  that  struck  tliose  terrible  and  killing  blows,  the  soul,  tlie 
intellect,  the  mind  of  the  man,  did  not,  by  reason  of  impaired  intellect,  do  the 
act  and  impel  the  hand.  If  this  lie  so,  it  is  a  defence.  Tlie  statute  has  declartcl 
that  no  insane  person  can  be  punished  for  a  criminal  act;  he  is  not  in  tlie  eye  of 
law  responsible,  either  before  this  tribunal,  nor  before  the  greater  and  higher 
tribunal  to  which  we  must,  in  tlie  end,  render  our  account. 

♦'  But  what  is  insanity?    What  must  be  the  mental  condition  of  the  party  who 
Is  to  be  excused  on  account  of  that  mental  condition?    How  much  intellect, 


250 


TIIK    LE(!AL   TE!ST   OF    INSANITY 


Notes. 


understanding,  judgment  and  coniprehouKion  must  hu  have  to  make  him  amon- 
abiu  to  the  law?  Tiiis,  grntlemon,  is  a  (iiitstlon  for  tlie  court,  and  as  tlie  court 
lays  down  tluit  law  to  you,  you  will  bo  guided  and  governed  l)y  it  in  your 
dcliljorations.  Questions  of  fact  l)eiong  to  you;  ([uestions  of  law  to  tlie  court. 
Trcucli  not  upon  tiie  prerogative  of  the  court,  and  tlie  court  will  be  careful  to 
leave  to  you  tiiiit  wliicli  tlie  iiiw  nial<es  it  your  duty  to  decide.  Wliat,  tlien,  I 
repeat,  must  be  the  mental  con«lition  of  the  person  wlu»  has  done  tlie  act, 
otherwise  unlawful,  wliieii  will  excuse  iiim  for  the  commission  of  such  act? 
The  term  '  insanity '^  is  a  somewliat  vague  one.  Tlierc  are  different  degrees 
of  mental  power  in  a  iu-althy  jjerson.  There  are  various  degrees  of  capacity 
among  persons  wliose  intellect  may  l)e  slightly  imi)aired.  In  regard  to  tlie  civil 
affairs  of  life,  tliat  act  is  a  good  and  lawful  one  which  is  done  l)y  a  person  vvlio 
understands  the  act.  The  law  can  make  ikj  difference  between  tlie  talented  and 
those  wlio  are  not,  in  regard  to  the  execution  of  a  deed  or  will,  so  long  as  the 
person  of  the  lesser  intellect  has  enough  capacity  to  understand  and  compre- 
hend the  act  wiiicli  lie  does;  and  so  in  regard  to  crime.  Tlie  person  who  com- 
prehends crime  fn  all  its  monstrosHy  is  liable.  The  person  whose  intellect  is 
less  than  that,  so  long  as  he  has  sutlicieiit  comprehension  to  know  tliat  the  act 
is  wrong  and  is  forliidilen,  and  will  be  punished  l)y  tlie  law,  is  <  pially  responsible ; 
no  more  so,  and  no  less  so.  The  law,  gentlemen,  does  not  lecogni/e  insanity 
as  a  defence  so  loug  as  the  jierson  iinderstauds  and  comprehends  the  act.  That 
the  person  pretends  he  is  impelled  by  an  irresistible  and  overwhelming  impulse 
to  commit  the  act,  will  not  make  a  defence.  It  will  not  do  for  a  person  to  say: 
'I  was  tempted  by  crime  and  was  overcome  by  temptation.'  If  lie  knows  tlie 
act  is  wrong  and  is  forbidden,  he  must  resist  tlie  temptation ;  and  if  he  commits 
the  act,  he  does  it  at  Ids  peril.  Neither  will  it  do  to  excuse  the  commission 
of  crime  because  tlie  person  believes  in  spirits.  Belief  in  spirits  m  ly  be  <vi- 
dence  for  a  jury  to  found  its  judgment  upon  in  regard  to  the  undermtandiiig  and 
comprehension  of  the  party  accused  of  the  act  and  crime.  But  belief  of  spirits 
in  itself,  —  that  the  party  sees  or  hears  spirits,  that  spirits  whisper  to  hira  and 
bid  him  to  do  this  act,  —  that  of  itself  is  no  defence,  provided  the  judgment  and 
reason  wliicli  God  gave  to  him  and  spared  to  liim  declare  to  his  consciousuess 
tliat  the  act  was  wrong,  and  that  the  laws  of  God  and  man  forl)id  it.  This, 
gentlemen,  is  no  new  doctrine;  it  is  as  old  as  the  country  from  which  we  have 
borrowed  the  most  of  our  learning  and  our  law.  I  refer  i.'ov  ;»  tlwf  Jaw  of 
England.  And  that  you  ma/  see  what  the  law  of  that  couht"  "y.,,n  that 
question,  let  me  call  j'our  attention  to  some  extracts  from  that  •  nAs.  i  have 

carefully  culled:  — 

"  '  To  justify  the  acquittal  of  a  person  indicted  for  murder  oa  !  ground  of 
insanity,  the  jury  must  be  satislled  tiiat  he  was  incapable  of  judging  betweci 
riglit  and  wrong,  and  that  at  the  time  of  committing  the  act  he  did  not  consider 
that  it  was  an  offence  against  tlie  laws  of  God  and  nature,'  This  opinion  was 
given  by  Lord  Lvxuuiust,  in  the  case  of  King  v.  Offnrd.  Anotlier  judge  thus 
says:  'When,  upon  a  trial  for  murder,  the  plea  of  insanity  is  set  up,  tlie  ques- 
tion for  the  jury  is:  '  Did  the  prisoner  do  tlie  act  under  a  delusion,  believing  it 
to  be  other  than  it  was?  '  If  he  knew  wliat  he  was  doing,  and  that  it  was  likely 
to  cause  death,  and  was  contrary  to  the  laws  of  God  and  man,  and  that  the  law 
directed  that  persons  who  did  such  acts  shouhl  be  puuislied,  he  is  guilty  of 


TEST   IN    NEW    Y(JICK. 


2:»i 


People  V.  Wultz,  coutiniied. 


murder.'  This  was  the  opinion  of  Mautin,  J.,  in  tlu?  ciise  of  Qneen  v. 
Tetonli'y.  And  a^ain:  'Tiio  cinttiinstance  of  u  person  liavin<;  acted  under  an 
irrisisUhlo  iidlnence  to  tlie  conuidssion  of  lionneide,  is  no  defence  if,  at  tlie  time 
he  connnitted  it,  lie  knew  he  was  doing  wliat  was  wron;;."  Tins  is  tlie  opinion 
of  BuAMWKLL.,  H,  in  Queen  v.  Ilaijnc.s.^  Tlie  same  doctrine  has  l)een  enunciated  in 
the  various  JStates  of  tliis  Union :  ♦  In  a  trial  for  murder,  a  charge  *  tliat  the  true 
test  of  insanity  is  wiietiier  the  accused,  at  the  time  of  the  commission  of  tlie 
crime,  was  conscious  of  doing  wliat  he  ongiit  not  to  do,'  is  proper.'  Tlii-i  was 
held  In  the  case  of  tlie  People  v.  llobxon.'  'The  test  of  .sncli  insanity  in  crim- 
inal cases  as  will  excuse  the  comini.ssion  of  crime,  is  wlietlier  tlie  accused,  at 
the  commission  thereof,  was  conscious  that  he  was  doing  what  lie  onglit  not 
to  do."  'It  is  not  every  kind  or  degree  of  insanity  whicli  exempts  from 
punislimcnt.  If  the  accused  understood  the  nature  of  the  act,  if  he  knew  it 
was  wrong  and  it  deserved  punishment,  lie  is  responsible.'  This  is  the  ease 
of  United  States  v,  McGlue.^  'If  a  man  lias  cajiacily  and  reason  sullieieiit  to 
enable  him  to  distinguisli  between  right  and  wrong  as  to  a  iiartienlar  ad, 
for  tlie  commission  of  whicli  he  is  on  trial,  if  he  has  knowledge;  and  con- 
sciousness that  the  act  he  I.s  doing  is  wrong  and  will  deserve  punishment,  he 
is,  in  the  eye  of  the  law,  of  .sound  mind  and  memory,  and  tlu'refore  eriininally 
responsible  for  the  act.'  Ami,  gei  lemen,  tiie  .same  doctrine  has  been  enun- 
ciated In  a  recent  case  in  tlie  Court  of  Appeals  of  this  State,  wliieli  is  onr 
highest  court,  and  wlio.se  decisions  must  be  our  guide  in  tlie  deterniiiiatioii 
of  this  one.  The  ca.se  is  reported  in  52  N.  Y.'*  The  jirisoner  was  convicted,  in 
tlie  General  Sessions  of  New  York  City,  of  the  crime  of  murder  In  tlie  second 
degree,  he  having  been  indicted  for  murder  in  tlie  tlrst  degree  for  killing  his 
wife.  Tlie  counsel  for  the  pri.soner  made  these  points:  '  No  man  can  commit  a 
crime,  altiiougli  he  has  understanding,  if  he  has  no  will.  TIk;  right  and  wrong 
test  as  to  the  contemplated  act  Is  not  favored.  The  power  of  choosing  right  from 
wrong  is  as  essential  to  legal  responsibility  as  the  mere  capacity  of  distinguishing 
right  from  wrong.'  That  is  to  say,  tlie  prisoner's  counsel  said  he  must  have 
the  power  to  choose ;  that  Is  to  determine  whether  he  would  or  would  not  do; 
whether  he  should  do  the  act,  or  whetlii'r  lie  should  not  do  it ;  and  this  w.is  just 
as  important  In  determining  whether  lie  was  in.sane  or  not,  as  his  power  to 
distinguish  between  the  right  and  tlie  wrong  of  the  act.  In  other  words,  the 
counsel  for  the  prisoiu-r  claimed  that  though  the  prisoner  might  have  reason 
enough  to  tell  him  tliat  the  act  was  wrong,  —  that  the  laws  of  the  land  and  God 
forbid  It,  —  yet  If  he  had  no  will  to  resist  the  influence  wliich  bade  him  do  the 
act,  then  he  was  crazy  and  insane,  and  not  criminally  responsible.  It  presents, 
to  a  certain  extent,  one  of  the  very  propositions  whicli  the  counsel  for  the  pris- 
oner has  rai.sed  Iiere.  It  presents  tlie  identi('al  (piestion  wliich  is  raised  by  the 
confession  of  the  prisoner  In  the  case.  Now,  what  did  the  Court  of  Appeals 
say?  They  refer,  in  the  tlrst  place,  to  the  case  of  Willis  v.  People.  That  was  a 
case  in  which  I  was  concerned,  and  wliere  the  rule  In  tliis  State  was  pretty 
thoroughly  settled.    The  court,  through  Andukws,  J.,  says:  ♦  That  the  test  of 


1 F.  &  K.  666. 
»  17  Cal.  — .  424. 
*  State  V.  .Spencer,  1  N.  J.  (L)  424. 


*  Hurt.  (".  Vt.  !. 

*  Flanagan  v.  People. 


252 


THE    LEGAL   TEST   OF    IXSAXITV. 


Notes. 


rcsponsil)ility  for  criminal  acts,  wlicre  unsomulness  of  mind  is  Interposed  as  ,i 
(k'ft'iici",  Is   the  cai)acity  o*  the   defendant  to  «listinjjiiish  between   right  and 
wrong  at  the  time  of  and  with  respect  to  the  act  which  is  the  subject  of  the 
in<|uiry.'    Of  course  he  must  be  able  intelligently  to  distinguish  between  tlif 
riglit  and  the  wrong;  he  must  have  a  comprehension  that  the  act  is  forl)iilden;  it 
must  be  present  in  his  mind  at  the  time  he  resolves  to  do  it.     But  if  tliat  intel- 
ligence and  comprehension  be  present,  —  if  there  is  a  voice  within  him  saying, 
'  Do  not  this  act '  anil  if  he  understands  that  if  he  does  it,  it  is  wrong  and  thf 
law  will  punisli  him,  —  then  if  he  does  it  he  is  r<.'sponslble,  even  though  he  may 
claim  that  some  mysterious  Influence  or  spirit  urges  him  on  and  destroys  his 
power  to  resist.    I  further  read :  '  We  are  asked  in  this  case  to  introduce  a  new 
element  into  the  rule  of  criminal  responsibility  in  cases  of  alleged  Insanity, 
and  to  hold  that  the  power  of  choosing  right  from  wrong  is  as  essential  to  legal 
responsibility  as  the   capacity  of  distinguishing  between  them,  and  that  the 
absence  of  the  former  is  consistent  witli  the  presence  of  the  latter.     The  argu- 
ment proceeds  upon  the  theory  that  there  is  a  form  of  insanity  in  which  facul- 
ties are  so  disordered  and  deranged  tliat  a  man,  though  he  perceives  the  moral 
(piality  of  Ids  acts,  is  unable  to  control  them,  and  is  urged  by  some  mysterious 
pressure  to  the  commission  of  acts,  the  consefpiences  of  which  he  anticipates 
but  cannot  avoid.    Whatever  medical  or  scientiflc  authority  there  may  l)e  for 
;his  view,  it  has  not  ))een  accepted  by  courts  of  law.    The  vagueness  and  uncer- 
tainty of  the  inquiry  which  would  be  opened,  and  the  manifest  danger  of  intro- 
ducing the  limitation  claimed  into  the  rule  of  responsibility  in  cases  of  crime 
may  well  cause  courts  to  pause  before  assenting  to  it.    Intlulgence  in  evil  pas- 
sion:' weakens  the  restraining  power  of  tlie  will  and  conscience,  and  the  rule 
suggested  would  be  the  cover  for  the  conmiission  of  crime  and  justitlcation. 
The  doctrine  that  a  criminal  act  may  be  excused  upon  the  notion  of  an  irresisti- 
ble impulse  to  commit  it,  whore  the  offender  has  the  ability  to  discover  his  legal 
and  moral  duty  in  I'espect  to  it,  has  no  i)lace  in  the  law.     Rolfe,  B.  in  lieg.  v. 
Allnnt,  where  on  th  ;  trial  of  an  indictment  for  poisoning,  tiie  defendant  was 
alleged  to  have  actcc'   under  some  moral  influence  wlucii  he  could  not  resist, 
said:     'Every  crime  was  conunitted  under  an  influence  of  such  a  description, 
and  the  object  of  t'le  law  was  to  compel  people  to  control  their  influences.' 

"  Tliat,  gentlemen,  is  the  law  of  the  case.  It  is  the  law  which  must  govern  you 
in  j'our  deliberations.  You  are  not  to  ask  yourselves  the  vague  question  whether 
tlie  prisoner  was  or  was  not  insane,  without  having  any  clear  or  defliute  com- 
prehension of  what  insanity  is,  but  you  are  to  ask  yourselves  the  question:  Did 
tlie  prisoner  understand  tliis  act  when  he  raised  tliat  hatchet  and  smote  Holcher 
these  fatal  blows?  Did  he  understand  that  the  laws  of  God  and  man  forbade 
him;  and  did  he  know  tliat  these  laws  would  hold  him  responsible  for  it  when 
discovered  and  brouglit  before  a  tribunal  of  justice?  If  he  did,  he  is  guilty. 
No  matter  though  he  says,  and  his  counsel  for  him  argues,  that  an  irresistible 
mysterious  power  urged  him  on  to  tlie  commission.  This  is  no  defence.  The 
law  says  it  is  the  duty  of  the  person  to  resist  these  influences,  and  to  successfully 
resist  them.  The  safety  of  society,  the  protection  of  life,  require  that  we  shouUI 
hold  persons  accountable  for  crime  who  know  that  the  act  which  tliey  do  is  a 
criminal  one." 

The  prisoner  ioa»  convicted. 


i 

/. 

^ 


TEST    IS    NEW    YOUK. 


253 


Moett  V,  People. 


rposcd  as  ,1 

right  ami 
)ject  of  the 
•  'tween  the 
rbidden;  It 
that  Intel - 
ilin  saying, 
ng  and  the 
iigh  he  may 
lestroys  his 
duce  a  new 
d  insanity, 
ial  to  legal 
id  that  the 
The  argu- 
lueh  facul- 

the  moral 
mysterious 
anticipates 
nay  be  for 
luid  uncer- 
rof  Intro- 
's of  crime 

evil  pas- 
d  the  rule 
stiflcation. 
1  Irresisti- 
r  his  legal 

n  Iteg.  v. 
idant  was 
lot  resist, 
scription, 
noes.' 
;overn  you 
n  whether 
nite  corn- 
ion:  Did 
e  Holcher 
,n  forbade 
)r  it  when 

is  guilty, 
•resistible 
ice.  The 
ccessfully 
ve  should 
cy  do  is  a 

nvicted. 


In  Moett  V.  People,^  the  prisoner  was  indicted  for  murder.     The  following  judg- 
ment was  delivered  in  *.lie  ("ourt  of  Appeals. 

E.vKL,  J.  "  (Jne  of  the  defences  presented  at  the  trial  was  that  the  prisoner  was  In 
such  a  state  of  mind  at  tlie  time  of  the  killing,  that  he  was  not  responsible  for  lii.-,  act. 
In  reference  to  this  defence,  the  judge  in  his  charge,  among  otlier  things,  said :  •  If 
lu'  was  unconscious ;  if  he  did  not  know  what '  e  was  doing  upon  that  'iccasion ;  if  his 
mind,  because  of  the  terrible  scenes  which  he  had  passed  tlirougli  '.iriuL*  those 
long  and  weary  days  preceding  tliis  tragedy,  had  so  impaired  ids  intellect,  had  so 
diseased  his  brain  when  tlie  occasion  came  when  tliesu  sliois  were  tired  that 
carried  this  woman  to  lier  grave,  then,  of  course  he  cannot  be  held  resp<)nsil)le 
for  the  conse«iuences  of  this  act.  But,  if  he  knew,  if  lie  had  the  powfr  at  the 
lime  lie  llred  these  shots  of  discerning  riglit  from  wrong,  if  he  understood  the 
nature  and  character  of  his  act,  tlien  he  must  be  responsible  so  far  as  this 
defence  is  concerned.'  The  learned  judge  then,  tliat  there  might  l)e  no  mistake 
read  to  the  jury  portions  of  tlie  opinion  of  Andkicws,  J,,  in  tlie  case  of 
FlaiKiyan  v.  Pc  _)le,-  with  such  comments  thereon  as  must  have  made  plain 
to  the  jury  the  rule  of  law  there  laid  down.  He  also  cliarged  the  jury  ujion  tlie 
ivijuest  of  the  prisoner's  counsel,  as  follows:  'The  law  does  not  re([uire  tlie 
insanity  or  mental  aberration  which  absolves  from  crime  should  exist  for  any 
(lellnite  period,  and  only  that  It  existed  at  the  moment  when  the  act  occurrtv'. 
with  which  the  prisoner  stands  charged.'  If  the  insanity  or  mental  aberration 
wiiieh  aljsolves  from  crime  operated  at  the  moment  tliat  the  act  with  which  the 
l)risoner  is  charged  was  committed,  that  Is  sufficient  in  law  to  absolve  the  pris- 
oner from  guilt,  and  he  cannot  be  convicted  of  the  offence  charged  in  the  iiidiet- 
nient  or  any  other  offence.'  The  People  must  satisfy  tlie  jury  beyond  all 
reasonable  doubt  that  tlie  prisoner,  if  he  committed  the  act  alleged  in  the  iiidiet- 
nuiit,  understood  the  act  at  the  moment  It  was  committed,  and  that  If  the  jury 
tlnd  that  he  did  not  understand  It  at  the  iiiomeiit  he  eoinmitted  it;  If  lie  did 
commit  It,  he  cannot  be  found  guilty  of  tlie  crime  cliargeil  in  tlie  Indietineiit  or 
any  other  crime,  and  it  is  the  duty  of  tlie  jury  to  acipiit  him.  '  Tiiat  the  People 
must  satisfy  tlie  jury  beyo.id  all  reasonable  doulit  that  at  the  moment  the  act 
alleged  in  the  Indictinent  was  committed  liy  tlie  pri.soner  If  he  did  commit  it,  lie 
had  reason,  perception  and  understanding  sufficient  to  enable  him  to  discern  the 
viirlit  from  the  wrong,  and  tiiat  if  he  had  not,  it  is  the  duty  of  the  jury  to  ac(iuit 
him.'  '  That  It  Is  the  duty  of  the  People  to  satisfy  the  jury  beyond  all  reasonable 
doubt  that  at  the  moment  the  act  alleged  in  the  indictment  was  committed  by  the 
prisoner,  if  he  did  commit  It,  he  had  reason,  perception,  and  understanding, 
sufficient  to  enal)le  him  to  discern  right  from  wrong  with  respect  to  that  par- 
ticular act,  and  If  he  did  not,  the  jury  must  acfpilt.'  '  That  the  People  must 
s:itisfy  the  jury  beyond  all  reasonable  doubt  tliat  at  the  moment  the  act  alleged 
in  the  indictment  was  committed,  the  prisoner,  if  he  did  commit  It,  had  sufficient 
reason  and  will  under  all  the  circumstances  as  tliey  may  be  found  to  have  been 
proved,  to  form  and  have  a  criminal  intent  and  purpose,  and  that  If  he  had  not 
the  jury  must  ac(iuit.'  The  counsel  for  the  prisoner  also  re(|uested  the  court  to 
cliarge  as  follows:     'That  the  People  must  satisfy  the  jury  beyond  all  reasou- 


>  85  X.  Y.  .173  (I880),.imrming  People  v. 
Moett,  23  Hun,  60  (18 iO). 


5  52  N.  Y.  467. 


254 


THE    LEOAL   TEST   OF    IXSANITV. 


Notes. 


iihlc  doubt  that  at  tbc  monmiit  the  act  allospd  in  tlio  indictment  was  committed 
l)y  tli(!  |»ri.>;>>u'r.  'f  iie  dl(i  conindt  it,  lie  liad  reason,  perception  and  understanding 
siilllclent  to  Ivnow  tliat  tlic  laws  of  Clod,  and  tlic  land  forbid  him  from  committin;; 
it,  and  if  he  had  not,  tlie  jury  must  acquit  him."  In  response  to  tlds  request, 
tiie  jud;;e  said:  «I  cliar-re,  in  the  lan^ua^e  of  the  Court  of  Appeals  in  that 
respect,  and  decline  to  cliarjie  in  tlie  lanjiuajre  of  the  request,  and  adiierc  to  my 
ori;?inal  cliarire.'  And  to  tlds  the  prisoner's  coun.sol  excepted,  and  lie  now 
presents  this  exception  for  our  consideration.  We  are  of  tlie  opinion  that  the 
jury  were  fully  and  fairly  instructed  as  to  tlie  law  bearing  upon  tlie  mental  con- 
dition and  tile  legal  responsibility  of  the  pri.soner.  P'verything  is  included  in  the 
charge  more  tlian  once  given,  that  the  test  of  responsibility  is  the  capacity  of  tlie 
prisoner  to  distinguish  between  right  and  wrong  at  the  time  of,  and  with  respect 
to  the  criminal  act  complained  of.  Tlie  laws  of  God  and  the  land  are  the 
measure  of  every  man's  act,  and  make  it  right  or  wrong,  and  it  is  right 
or  wrong  as  it  corresponds  with  sudi  laws.  W-sen  It  is  .said  that  a  prisoner 
must,  at  tlie  time  of  tlie  alleged  criminal  act,  have  sufllcient  capacity  to  distin- 
guish between  right  and  wrong  with  respect  to  .such  act,  it  is  Implied  that  he 
must  have  sufficient  cjipacity  to  linow  wliether  such  act  is  in  violation  of  the  law 
of  God,  or  of  the  land,  or  of  both.  It  Is  not  the  duty  of  the  trial  judge  to 
present  the  matter  to  the  jury  in  every  possible  phase  and  in  every  form  of  lan- 
guage which  the  ingenuity  of  counsel  can  devise.  By  such  subtle,  metaphysical 
distinctions,  the  minds  of  the  jury  would  be  confused,  rather  than  enlightened  or 
instructed." 

In  People  v.  Coleman,^  tried  in  New  York,  in  1881,  the  prisoner  was  Indicted 
for  murder,  and  the  defence  was  in.sanity.  D.wis,  J.,  eiiarged  the  jury  as  fol- 
lows :  "  Insanity  is  usually  spoken  of,  both  in  common  language  and  in  the  books, 
as  a  defence  to  crime.  But  it  is  no  defence,  because,  where  the  insanity  recog- 
nized by  the  law  exists,  tliere  can  be  no  crime  to  defend.  An  insane  person  is 
incapable  of  crime.  He  is  devoid,  botli  in  morals  and  in  law,  of  the  elements 
essential  to  the  constitution  of  crime,  and  hence  is  an  object  of  pity  and  pro- 
tection, and  not  of  punisliment.  Therefore,  whenever  it  is  established  that  a 
party  accused  of  crime  was,  at  the  time  of  its  alleged  commission,  insane  within 
the  establislied  rules  of  the  criminal  law,  he  is  entitled  to  acquittal  on  the  ground 
of  innocence,  because  of  incapacity  to  commit  the  offence,  however  monstrous 
his  physical  act  may  appear.  Both  humanity  and  the  law  revolt  against  the  con- 
viction and  puiiisluneiit  of  such  a  person.  But  insanity  is  a  condition  easily 
asserted  and  sometimes  altogether  too  easily  accepted.  Hence,  juries,  wliile 
tlicy  should  be  careful  to  see  to  it  that  no  really  insane  person  is  found  guilty  of 
crime,  sliould  be  eciually  careful  that  no  guilty  person  escapes  under  an  ill- 
founded  pretext  of  insanity. 

"  It  is  important  that  juries  on  trials  of  alleged  crirrc  should  clearly  understand 
what  insanity  is,  within  the  established  rules  of  the  criminal  law.  Without  such 
rules  the  administration  of  justice  in  such  cases  would  be  dependent  upon  the 
shifting  caprices  of  courts,  of  tlie  equally  unsubstantial  passions  and  prejudices 
of  jurors.  In  this  State  the  test  of  responsibility  for  criminal  acts,  where  insan- 
ity is  asserted,  is  the  capacity  of  the  accused  to  distinguish  between  right  and 


wrc 

Til 

.-iUi) 

sini 
the 
lolc 
late 


>  1  N.  V.  Crim.  Ucp.  1  (1881). 


TEST    IN    NKW    YOKK. 


255 


People  V.  Coleman . 


committed 
ck-rstiindlii'.' 
committing; 
Ills  rcqnost, 
als  in  that 
lierc  to  my 
nd  lie  now 
on  that  the 
nt'ntal  con- 
uded  in  tlic 
icity  of  the 
ith  respect 
d   arc    tlie 
It   is  right 

a  prisoner 
f  to  distin- 
led  that  he 
of  the  law 
1  judge  to 
rni  of  lan- 
?taphysical 
ghtened  or 

IS  Indicted 
ry  as  fol- 
the  books, 
lity  recog- 
person  is 
elements 
■  and  pro- 
led  that  a 
nc  within 
lie  ground 
nonstrous 
t  the  con - 
ion  easily 
ies,  while 
guilty  of 
er  an  ill- 

iderstand 
tout  such 
upon  the 
rejudices 
re  insan- 
:ight  and 


wrong  at  the  time  and  with  respect  to  the  act  which  Is  the  subject  of  inquiry. 
Tills  rule  Is  stated  by  the  authorities  in  diffen'Ut  forms,  but  always  in  the  same 
substance.  In  one  ease  it  was  said  '  the  ini|uiry  is  always  brought  down  to  tlio 
single  question  of  rt  capacity  to  distinguish  between  right  and  wrong  at  the  tinjc 
tlie  act  was  done.'  Tliis  was  in  the  Freeman  Case  —  tlie  celebrated  case  of  the 
colored  man  who  was  trieil  for  murder  in  Cayuga  County  and  defended  by  tlic 
late  William  II.  Seward. 

"  In  tlie  most  authoritative  of  the  Enj;Msh  cases,  it  is  said:  '  It  must  lie  clearly 
proved  that  at  the  time  of  committing  tlie  o^ence,  the  party  accused  was  laboring 
under  such  a  defect  of  reason  from  distas/  of  the  mind,  as  not  to  know  tiie  nature 
and  (|uaiity  of  the  act  he  was  doing,  or,  if  he  did  know  it,  tliat  he  did  not  know 
lie  was  doinir  what  was  wrong."  And  In  a  very  late  case  in  our  Court  of  Appeals, 
a  charge  in  that  exact  language  was  held  to  present  the  law  correctly  to  the 
jury. 

*'  So  you  will  see,  gentleman  of  the  jury,  that  in  this  case,  the  firing  by  the 
prisoner  of  tlie  shot  by  wiiicii  tlie  deceased  was  killed,  being  proved  and  admitted, 
and  evidence  to  siiow  the  alleged  insanity  having  been  given,  the  question 
wliether  the  act  was  criminal  depends  upon  your  finding,  as  a  matter  of  fact 
wliether,  at  the  time  of  doing  the  act,  the  prisoner  knew  what  she  was  doing, 
and  that  she  was  doing  a  wrong  —  or,  in  other  words,  did  she  know  that  she  was 
shooting  the  deceased,  and  tiiat  snch  shooting  was  a  wrongful  act?  If  she  did 
know  these  things,  her  alleged  insanity  is  not  established  witliin  the  rules  of  the 
law,  liowever  much  you  may  lie  convinced  tliat  slie  acted  under  the  intensest 
emotional  excitement,  or  however  fully  she  believed  .she  was  justified  in  avenging 
lur  own  wrongs,  or  however  much  you  may  think  the  deceased  was  deserving  of 
punishment.  The  doctrine  tiiat  a  criminal  act  may  be  excused  upon  the  notion 
of  an  irresistible  impulse  to  commit  it,  when  the  offender  has  the  ability  to  dis- 
cover his  legal  and  moral  duty  in  resjiect  to  it,  lias  no  jiiace  in  the  law;  and  there 
is  no  form  of  insanity  known  to  tlie  law  as  a  shield  for  an  act  otherwise  criminal, 
in  which  the  faculties  are  so  disordered  or  deranged  that  a  man,  although  he 
perceives  the  moral  <|uaiity  of  his  acts  as  wrong,  is  unable  to  control  them,  and 
is  urged  by  some  mysterious  pressure  to  the  commission  of  the  act,  the  conse- 
quences of  which  he  anticii)ates  and  knows. 

"  This  is  substantially  the  language  of  tlie  Court  of  Appeals  in  the  case  already 
referred  to.  If  this  were  not  the  law,  every  thief,  to  establish  his  irresponsibil- 
ity, could  assert  an  irresistible  impulse  to  steal,  wliicli  he  had  not  mental  or 
moral  force  sufficient  to  resist,  tiiougli  knowing  the  wrongful  nature  of  the  act; 
and  in  every  homicide  it  would  only  be  necessary,  in  order  tocscai)e  punishment, 
to  assert  that  anger  or  hatred  or  revenge  or  an  overwlielming  desire  to  redress 
an  injury,  or  a  belief  that  the  killing  is  for  some  private  or  pulilic  good,  has 
produced  an  irresistible  impulse  to  do  a  known  illegal  and  wrongful  act.  So  that 
really  there  could  never  be  a  conviction  if  the  guilty  party  should  assert  and 
maintain  an  irresistible  impulse,  produced  by  some  pressure  which  he  could  not 
iisist,  as  a  reason  for  committing  a  crime!.  To  restrain  such  impulses  is  the 
\cza\  and  moral  duty  of  all  men,  and  the  protection  of  society  demands  that  he 
who  yields  to  them  must  take  tlie  conse(|uences  of  his  acts. 

"  You  will  understand,  therefore,  the  exact  distinctions  upon  which  the  law  in 
criminal  cases  stands  in  respect  to  responsibility,  to-vvit :  that  the  party  who 


2.')«; 


TIIK    LKOAL   TK.sr   OF    INSANITY. 


Notvs. 


dors  tl»f  act  knows  what  ho  Is  dohia;.  If  lie  is  tnilu'cllc  —  tlial  Is,  If  lit-  lins  not 
Nonsc  enough  to  know  what  lu>  is  iloin;;,  wliiMi  he  tires  a  pistol  at  anotlu'i-,  then 
he  Is  not  anu'nal)lc  to  tho  law  as  a  criminal,  Itccansc  of  jiis  mental  inea|>ucity. 
lint  if  he  iias  knowledice  enon^rii  to  know  that  he  Is  lli-in<;  a  pistol — that  liu  is 
sliootln;;  a  pei>on,  and  tlureliy  doin^  an  act  injnrious,  or  likely  to  bu  injnrious 
to  that  person,  and  also  has  Knllieieiit  sense  tu  know  that  that  act  Ih  ii  wrongful 
one  —  luM-annot  assert  an  Irresistilile  ini|(nise  arisinu  from  any  cause  wliatever 
as  a  defi-nce  or  excnse.  Wiialever  tlie  views  of  scientists  (»r  of  tlieorists  on  tiie 
subject  of  insanity  may  be,  and  however  jiivat  a  variety  of  classltlcatif)ns  they 
in.iy  adopt,  tin'  law  in  a  criminal  case  l)rin;.'s  tiie  wiioie  to  this  siniiie  test:  Did 
the  person  doinit  tiie  act  at  tiiat  time  have  siilllcient  sense  to  know  wiiat  he  was 
(loiui;,  and  that  It  was  wron;;  to  do  it?  If  tiiat  be  his  cundition,  it  is  of  no  cun- 
scipience  tliat  lie  acts  nnder  an  lrresistil)ie  intlneiicu  or  a  snp|)osed  inspiration  in 
committinii  tiie  wromr,  <»r  a  i)eiief  tiiat  tlie  wronj;  will  produce  some  fireater 
fjood.  Kmotional  insanity,  impulsive  insanity,  Insanity  of  tiie  will  or  of  the 
moral  sense,  all  vanisii  into  thin  air  wiienever  it  appears  that  tlie  accused  party 
knew  the  difference  between  ri;ilit  and  wron-;  at  the  time  and  in  respect  of  tiie 
net  he  committed.  No  imaiiinary  insidration  to  do  a  personal  wroiii?  to  anotlier 
under  a  delusion  or  belief  that  some  [^rcat  pnlilic  or  private  benetit  will  How  from 
it,  where  the  nature  of  the  act  done  and  Its  |irol)al)ie  consetpiences  to  tlie  injured 
party,  and  that  it  is  in  itself  wronir,  are  known  to  the  actor,  can  amount  to  that 
Insanity  wliich  in  law  disarms  the  act  of  criminality.  Under  such  notions  of 
lejial  insanity,  life,  property  and  ri;ilits,  both  public  and  private,  would  be 
altogether  insecure;  and  every  man  who  by  brooding  over  his  wrongs,  real  or 
imaginary,  sliail  work  himself  up  to  an  irresistible  impulse '  to  avenge  himself, 
can  witli  impunity  become  a  self-elected  jiulge,  jury,  and  executioner  In  his  own 
case  for  the  redress  of  his  own  Injuries  or  of  the  wrongs  of  his  friends,  his  party, 
or  his  country.  But  happily,  gentlemen  of  the  jury,  that  is  not  the  law;  and 
whenever  such  ideas  of  insanity  are  applied  to  a  given  case  as  the  law  (as  too 
often  they  have  been),  crime  I'scapes  punisiiment,  not  through  the  legal  insanity 
of  the  accused,  but  through  tiie  emotional  insanity  of  courts  and  juries. 

"  I  have  felt  it  my  duty  to  give  you  my  views  of  the  law  of  insanity,  as  applica- 
ble to  the  case,  in  enii)liatic  terms;  but  I  assure  you,  gentlemen,  I  have  no  in- 
tention, in  doing  so,  to  affect  your  minds  in  determining  the  facts  of  the  case  to 
which  you  are  to  apply  the  law.  The  prisoner  is  entitled  to  a  consideration  of 
the  facts  of  the  case  by  you,  uniuflueuced  by  any  expression  of  opinion  in  respect 
to  them  by  the  court. 

"  Having  shown  you  the  law  of  insanity  applicable  to  the  case,  it  is  important 
that  I  should  give  you  the  law  In  respect  to  Its  i)roof .  The  law  presumes  sanity 
in  all  cases.  That  presumption  in  a  criminal  case  is  prima  fncie  evidence  of  the 
sanity  of  the  accused  party,  and,  where  no  evidence  tending  to  show  the  con- 
trary is  produced,  the  case  of  the  People,  so  far  as  relates  to  the  question  of 
sanity,  is  made  out.  The  burden  of  overthrowing  the  presumption  of  sanity  is 
upon  the  person  who  alleges  insanity,  and  if  evidence  be  given  by  him  tending 
to  rebut  the  presumption  and  to  sliow  insanity,  then  the  general  question  Is  pre- 
sented to  the  jury  wlietlier  the  alleged  crime  was  committed  by  a  person  respon- 
sible for  his  acts,  under  the  rules  of  law  which  have  already  been  laid  down. 
Upon  the  question  thus  presented,  the  presumption  of  sanity  and  the  evidence 


10  lins  not 

lluT,    lIU'll 

iicaimclty. 

that  lie  is 

Injurious 

wrongful 

wliutfvtr 

sts  ou  tlie 

tlous  tlu'y 

test:    Did 

lit  111!  was 

jf  no  coii- 

)iriition  in 

If  jiroaUr 

or  of  tin' 

ised  party 

cet  of  tlu! 

()  anotlur 

tlow  from 

lie  injuriil 

lilt  to  tliat 

notions  of 

would  l)e 

:s,  real  or 

c  hiinsrll, 

n  his  own 

Ills  party, 

law;  and 

w  (as  too 

il  insanity 

I. 

sapplica- 
.ve  no  in- 
le  case  to 
ration  of 
m  respeet 

mportant 

les  sanity 

ice  of  the 

the  con- 

estion  of 

sanity  is 

II  tending 

)n  is  pre- 

1  respon- 

id  down. 

evidence 


TEST    IN    NOKTII    CAKOLINA. 


867 


And  in  Ohio. 


tciulinp:  to  prove  or  disprove  insanity  arc  all  to  bo  considered  l)y  the  jury,  and  at 
tlii.t  stage  of  tiie  case  the  ipiestion  of  sanity,  iil\e  all  other  material  ((Ucstioiis  of 
fact,  becomes  one  on  wlileli  tlie  prosecution  liolds  the  alllrmatlve,  and  If  reason- 
able doubt  of  sanity  then  exists  upon  the  evidence  before  the  jury,  the  prlsom  r 
Is  entitled  to  the  benetlt  of  tliut  doubt  us  upon  any  other  material  ({Uestlon  of 
fact. 

"Now,  gentletnen,  this  is  iv  presentation  of  the  law  in  relation  to  insanity  as 
applied  to  criminal  ctiscs.    We  are  not  dealing  with  civil  actions  arising  upon 
contracts  or  uiuler  wills,  where  a  (|uestloii  of  siillleieiit  capacity  to  mal\e  tlie 
instriiiiient,  or  of  undue  iiitltieiice,  is  presented,  >)Ut  witli  the  law  as  established 
to  pn-veiit  crimes  «)f  violence  or  wrong,  against  wliicli  society  iiiu>t  have  power 
to  jirotect  itself.    The  iiKpilry  for  you  in  this  case,  I  repeat,  is  whether  or  not 
at  the  time  the  accusi'd  cominitte<l  tlie  act,  she  knew  what  she  was  doing —  to 
wit:  that  she  was  shooting  the  deceased;  and  knew  that  in  shooting  him  she  was 
doing  ti  wrongful  act.     If  those  two  conditions  of  things  existed,  tlien  tlie  asser- 
tion of  insanity  fails.     Although  she  may  have  l)een  lalioriiig  niiih'r  the  inteiisest 
excitement,  and  although  the  i'lipulse  to  do  tlie  act  because  of  the  injury  slie  al- 
leges she  liud  received  was  of  sudi  a  character  that  she  felt  herself  jiistitied  in 
avenging  lier  wrongs,  yet  the  defence  of  insanity  would  altogetlier  fail.     The 
iiioinent  it  is  conceded,  as  I  have  already  said,  tliata  man  can  assert  insanity  as  an 
excuse  for  his  otlu-rwise  criminal  act,  l)ecause»liis  passions  were  so  far  aroused 
that  it  was  iinpossilile  for  him  to  stay  ills  liaiid,  there  is  no  protection  for  society. 
Any  niiin  wlio  wishes  to  kill  his  enemy  or  any  one  wlioin  lie  believes  or  fancies 
lias  injured  liim,  has  only  to  bring  liimself  up  to  that  condition  of  intense  emo- 
tion that  he  can  no  longer  restrain  liimself,  then  do  the  killing,  and  then  assert 
ill  a  court  of  justice  tliat  lie  was  insane  because  liis  passion  had  pas.sed  all  bounds 
(if  restraint.     It  is  easy  for  the  mind  least  familiar  with  law  to  .see  that  wiienever 
tliat  condition  of  things  is  iield  to  be  legal  insanity  tliere  can  be  no  such  tiling  as 
protection  of  life  under  the  law,  for  tlie   law  itself  will  alirogatu  all  reasonable 
grounds  for  its  own  enforcement.  " 

§  1!). North  Carolina.— h\  State  V.  Hayicood,^  the  trial  judge  (tlie  indict- 
ment being  for  murder,  the  ilefence  insanity),  instructeii  tlie  jury  tiius:  "  If  the 
prisoner,  at  tlie  time  he  committed  the  homicide,  was  in  a  state  to  compreliend  his 
relations  to  otiier  persons,  the  nature  of  the  act  and  its  criminal  character;  or,  in 
other  words,  if  he  was  cimscious  of  doing  wrong  at  tlie  time  he  committed  the 
homicide,  lie  is  responsible.  But  if,  on  the  contrary,  the  prisoner  was  under 
the  visitation  of  God,  and  could  not  distinguish  lietween  good  and  evil,  and  did 
not  know  wliat  he  did,  lie  is  not  guilt}  of  any  offence  again.st  tlie  law,  for  guilt 
arises  from  the  mind  and  wicked  will."  On  the  appeal  this  charge  was  approved 
as  being  clear,  concise,  and  accurate  and  was  uommeuded  as  a  model  for  other 
trial  judges  in  the  State  to  follow. 

§  20. Ohio.  —In  State  v.  Gardiner,^  Wright,  J.,  held  that  the  same  degree  of 

insanity  whicli  excuses  a  man  from  liis  contracts  will  exonerate  him  from  ac- 
countability for  crime.    In  the  subsequent  case  of  Loeffner  v.  State,'^  tiic  Supreme 


'  PhlU.  (N.r.)  376  (1867). 
17 


"  Wright,  3!>9  (1833) 


»  10  Ohio  St  699. 


258 


TlIK    LEGAL   TEST   OF    INSANITY. 


Notes. 


Court  laid  it  Oown  tliat  tlie  test  was  wliethcr  tlie  prisoner  had  snmclcnt  reason 
and  capacity  to  distinj^uisli  between  riglit  and  wrong,  and  to  understand  the  na- 
ture of  tiie  act,  and  his  relation  to  tlie  party  injured. 

In  Farrar  v.  State,^  decided  by  the  Supreme  Court  of  Ohio  in  1863,  it  was  said: 
*'  Further  exception  is  taken  to  tlie  charge  of  the  court,  on  the  grouiul  that  it 
gave  too  narrow  a  detinitlon,  and  establi.slied  an  imperfect  test  of  insanity.     ♦  In- 
sanity,' said  the  judge,  *  exists  in  so  many  shapes  and  forms  it  is  almost  impos- 
sible for  science  to  comprehend  it.'     '  Insanity,  in  its  general  legal  sense,  is  the 
inability    to    distinguish    between   riglit  and  wrong;   and   as  applied  to  this 
case  particularly,  this  is  the  question  for  you  to  settle:     *  Was  Nancy  Farrar,  "* 
the  time  this  act  was  committed,  capalile  of  judging  whether  this  act  was  riglit 
or  wrong,  and  did  she  know  at  the  time  that  it  was  an  offence  against  the  laws 
of  God  and  man? »    *     ♦     *     '  she  or  he  who  administers  poison  to  kill,  and 
knows  at  the  time  that  it  is  wrong  to  do  so,  is  guilty  of  murder  in  the  first  de- 
gree.'    *      *      ♦     'So  far  as  the  girl  Nancy  is  concerned,  j'ou  will  carefully 
examine  the  testimony  touching  lier  knowledge  of  right  and  wrong,  and  if  you  find 
she  was  able  to  distinguish  between  them,  then,  no  matter  of  liow  low  an  order 
may  be  her  intellect,  or  how  depraved  her  character,  she  is  guilty  as  charg'^d,  if  you 
have  no  reasonable  doubt  a.*  to  her  commission  of  the  act.'    The  cases  of  Com- 
monwealth V.  Rofjim,"  Clark  v.  Statc,'^  iState  v .  iSummons,*tirc  referred  to  as  contain- 
ing the  true  definition  of  insanity,  and  showing  the  imperfection  of  that  before  us. 
The  power  of  self-control  —  'free  agency'  —  is  said  to  lie  qijlie  as  essential  to 
criminal  accountability  as  the  power  to  distinguish  between  right  and  wrong,  an  i 
I  have  no  doubt  tliat  every  correct  definition  of  insanity,  eitlier  expressly  or  iiy 
necessary  construction,  must  suppose  freedom  of  wlil  to  avoid  a  wrong  no  less 
than  the  power  lietween  the  wrong  and  the  rigid,  and  in  this  very  case  I  can  sec 
many  reasons  why  it  should  have  been  proper  to  say  this  much  to  the  jury,  in  so 
many  or  similar  words.    But  no  special  instruction  was  asked,  so  tliat  the  court 
did   not  expressly  deny  the   necessity  of  such  a  qualification  of  its  rule.    Tlie 
question  here  to  be  considered  is,  therefore,  does  the  definition  of  the  court  shut 
out  the  notion  that  accountability  may  be  destroyed  by  the  absence  of  what 
counsel  call  the  power  of  self-control,  or  free  agency?    I  think  not.    The  defini- 
tion given  below  is  such  as  we  frequently  flml  in  the  books,  and  giving  it  such  a 
construction  as  it  would  probably  receive  from  a  sensible  jury,  I  think  it  not  so 
inaccurate  as  to  prejudice  the  prisoner's  rights.    True,  there  arises  upon  tlio 
facts    in    this    record    a  not  irrational   theory  that  some   strange,  irresistible 
wish  to  see  the  effects  of  poison  —  to  produce  vlea>ii  —  may  have  had  such  power 
over  the  prisoner,  as  other  insane  fancies  which  so  often  make  a  man  or  woman 
little  nior:.   uian  a  piece  of  mechanism,  —  neither  more  capable  of  sflf-control 
nor  of  asserting  the  true  laws  of  its  being  against  thv.  foreign  influence.    But  the 
language  of  the  court  does  not  forbid  tlie  jury  to  consider  such  a  str.le  of  fact, 
if  it  were  proven;  and  the  jury  would  do  so  unless  prohibited.     I  should  not, 
after  mature  reflection,  be  incliued  to  distrust  the  verdict,  if  the  objection  here 
considered  stood  alone." 

In  Blackburn  v.  State,^  it  was  said:     "The  counsel  also  object  to  that  part 


'  2  Ohio  St.  7a 
«  7  Mete.  500. 
3  12  Otiio,  i'Ai. 


*  West.  Law  Journal,  1852. 
6  'J3  Ohio  SI.  U6  (1872). 


nt  reason 
d  the  ua- 

was  said : 
lid  that  it 
ity.     '  In- 
st impos- 
ise,  is  the 
d  to  this 
Farn.i-,  "' 
was  riglil 
t  tlio  laws 
>  kill,  and 
ic  first  de- 
[  carefully 
if  you  find 
iV  an  order 
g'^d,  if  you 
;s  of  Cum- 
in QontViin- 
,  before  us. 
essential  to 
wrong,  an  >1 
essly  or  liy 
ing  no  less 
I  can  sec 
ury,  in  so 
the  court 
rule.    Tlu- 
court  shut 
;e  of  what 
Thedefini- 
g  it  such  a 
ik  it  not  so 
IS  upon  till' 
rresistiblo 
uch  power 
or  wouKiii 
flf-eontrol 
,     But  the 
lo  of  fad, 
should  not, 
ctiou  here 

0  that  part 


TEST   IN   PENNSYLVANIA. 


25J) 


Commonwealth  v.  Furkin. 


of  the  court's  charge  which  relates  to  the  defence  of  insanity,  and  insist  that 
instead  thereof  the  court  sliould  have  givon  certain  instructions  wliich  they 
asked.  We  see  no  substjintial. difference  between  the  instructions  asked  and 
:c  charge  given.  The  form  of  question  submitted  to  the  jury  is  substantially 
llie  same  as  laid  down  in  Clark'' s  Cane,^  and  seems  to  us  to  embody  the  true  rule, 
viz.:  Was  the  accused  a  free  agent  in  forming  tlie  purpose  to  kill?  Was  he 
at  the  time  capable  of  judging  wlietiier  that  act  was  right  or  wrong?  And  did 
he  know  at  the  time  that  it  was  an  offence  against  the  laws  of  God  and  man?  " 


§21. 


Pennsylvania.  —  The  right  and  wrong  test  has  been  recognized  in 


many  cases  in  tliis  State.' 

In  Commonwealth  v.  Farkin,"^  tiie  prisoner  was  tried  in  1844  in  tiie  Pliiladelphia 
court  of  Oyer  and  Terminer  for  tlie  nnirder  of  James  Lemon.  Tlie  defence  was 
insanity.  Pauso.ns,  J.,  charged  the  jury  as  follows :  "  There  is  no  doui)t  but  that 
James  Lemon  died  from  violence  inflicted  upon  his  person,  and  that  the  prisoner 
at  the  bar  is  the  guilty  agent  who  gave  the  fatal  wound. 

"The  defence  to  the  accusation  is  that  the  prisoner  was  insane  when  he  com- 
mitted the  act.  And  it  is  likewise  contended  that  even  if  you  sliould  believe  he 
had  control  of  his  reason,  the  offence  is  not  murder  in  the  first  degree. 

••Your  flvst  inquiry  should  be,  was  the  prisoner  conscious  of  what  he  was  do- 
ing, aware  of  the  offence  he  was  connnitting,  and  its  consequences,  when  he 
gave  the  terrible  stab  which  constitutes  his  crime?  If  he  was  not,  he  cannot  be 
held  responsible  to  the  laws  of  our  country.  But  if  he  had  reason  and  under- 
standing, so  that  he  could  judge  between  good  and  evil,  he  is  as  much  amenable 
to  the  criminal  law  as  any  other  human  being. 

"  In  considering  this  part  of  the  case  I  shall  lay  down  for  your  reflection  the 
following  rules  of  law,  desiring  that  you  make  a  judicious  application  of  them 
to  the  facts,  as  you  may  find  them:  — 

"  1 .  Every  man  is  presumed  to  be  of  sound  miiul  and  understanding,  and  the  law 
retjuiies  that  where  it  •'^^  alleged  a  prisoner  was  insane  when  he  committed  the 
offence,  it  must  be  clearly  proved;  and  the  derangement  of  mind  must  by  shown 
to  iiave  existed  at  the  time  the  offence  was  perpetrated. 

"2.  That  there  is  a  distinction  Ix'tween  civil  and  criminal  cases  in  the  applica- 
tion of  tlie  rules  of  law,  in  relation  to  insanity.  In  a  civil  ca.sc,  if  a  man  appears 
from  the  evidence  to  l)e  7ion  compos  mentis,  tlie  law  avoids  liis  acts,  although  it 
cannot  be  traced  to  any  cause,  and  this  may  lie  partial  in  its  influence  upon  his 
acts  and  conduct.  But  to  deliver  a  man  from  responsil)ility  for  crimes,  above 
all  for  a  crime  of  such  great  atrocity  and  wickedness  as  this,  the  rule  does  not 
apply.  To  protect  a  man  from  criminal  responsibility  there  must  be  a  depriva- 
tion of  memory  and  understanding,  so  that  he  is  unable  to  comprehend  the  nature 
of  his  actions,  and  discriminate  between  moral  good  and  evil. 

"  ;>.  In  order  to  support  the  defence  of  insanity  it  ought  to  be  proved  by  the  most 
distinct  and  unquestional)le  evidence,  that  the  prisoner  was  incapable  of  judging 
between  right  and  wrong;  and,  in  fact,  It  must  be  proved  to  the  satisfaction  of 


1  12  Ohio,  494. 

=  Com.  r.  Winnemorc,  1  Ilrewst.  IVWJ  (ISf.T) ; 
<'"m.v.  Hart,  2  Brew.st.  .5J"  (ISfif) ;  Com.  v. 
Kaikin,  2  Pars.  43it;  2  Clark.  208  (1844) ;  Com. 


V.  Freth,  3  Phila.   lai;  5  Clark,  455  (1858); 
Com.  r.  .Mosler,  4  Pa.  St  2fi4  (184(;). 
■*  2  Pars.  Sel.  Caa.  4;i9;  2  Clark,  2(»8. 


260 


THE   LEGAL  TEST  v"»F   INSANITY. 


Notes. 


the  jury,  and  beyond  all  doubt,  that  at  the  time  the  prisoner  committed  the  atro- 
cious act  with  which  he  is  charged,  he  did  not  consider  that  murder  was  a  crime 
against  tlie  laws  of  (jod  and  nature,  and  there  is  no  other  proof  of  insanity  which 
will  excuse  murderer  any  other  crime. 

"4.  The  jury  must  discriminate  between  anger,  rage,  malice,  love  of  gain,  a 
heart  fatally  bent  on  mischief,  and  the  insanity  produced  by  the  visitation  of 
God.  If  you  should  believe  that  any  of  the  former  were  the  motives  which  in- 
fluenced the  conduct  of  the  prisoner,  and  prompted  the  deed,  then  he  is  respon- 
sible, and  c  ui;ht  to  be  convicted.  Nor  shoidd  Insanity  be  Inferred  simply  from 
the  boldueys  of  the  deeil,  of  the  daring  manner  in  which  the  crime  was  com- 
mitted—  in  open  day,  and  in  the  presence  of  witnesses  —  for  a  wicked  and 
malevolent  lieart  may  prompt  one  to  connnit  the  offence  under  the  most  suspi- 
cious appearances  of  delirium.  For  it  is  clear  that  idle  and  frantic  humors, 
actions  occasionally  unaccountable  and  extraordinary,  mere  dejection  of  spirits, 
or  even  such  insanity  as  will  sustain  a  commission  of  lunacy,  will  not  be  suffi- 
cient to  exempt  a  person  from  punishment  wlio  has  committed  a  criminal  act. 
Yet  it  is  clear  from  all  the  authorities,  if  there  be  a  total  permanent  want  of 
reason,  or  if  tliere  be  a  total  permanent  want  of  it  when  the  offence  was  com- 
mitted, the  prisoner  is  entitled  to  an  acquittal.  Still,  if  there  be  a  partial  degree 
of  reason,  a  co'upetent  use  of  it,  sufficient  to  have  restrained  those  passions 
which  produced  the  crime;  if  there  be  thought  and  design,  a  faculty  to  distin- 
guish the  nature  of  actions,  to  discern  the  difference  between  moral  good  and 
evil;  then  upon  the  fact  being  proved  that  the  prisoner  Avas  tlie  guilty  agent  (a 
fact  not  controverted  in  this  case),  the  judgment  of  the  law,  the  verdict  of  guilty 
must  take  place. 

"  Sucli  are  the  principles  of  law  found  in  our  books,  both  ancient  and  modem, 
whatever  may  have  been  their  application  by  juries  in  later  times.  Still,  all 
judges  wiio  respect  the  law,  \\U\  pronounce  it  as  it  has  been  settled. 

"This  subject  has  recently  undergone  a  judicial  examination  in  England  before 
the  judges,  under  peculiar  circumstances.  The  question  was  agitated  in  Parlia- 
ment, whether  further  legislation  was  not  necessary  in  relation  to  the  plea  of 
insanity  l)eing  a  defence  in  criminal  cases,  and  various  questionr,  were  pro- 
pounded to  tlie  judges  relative  to  the  law  in  such  cases,  and  their  opinion  was  de- 
livered l)y  Lord  Chief  Justice  Tin'dal  on  tlie  litth  of  June,  1843.  I  will  call  yonr 
attention  to  it  for  the  following  reasons:  First,  l)ecause  it  is  entitled  to  respect, 
as  being  the  judgment  of  some  of  the  al)lest  judges  now  living;  secondly,  in 
order  that  we  may  perceive  that  tiiere  is  no  cliaiige  in  the  law  by  recent  deci- 
sions; and  lastly,  because  I  say  to  yon,  tliat  tliese  are  the  principles  of  the  com- 
mon law;  it  is  the  law  in  Pennsylvania,  and  I  pronounce  it  as  a  rule  which 
ought  to  govern  your  deliberations  in  this  case. 

"The  lord  chief  justice  remarked  as  follows:  that  it  was  not  necessary  on  that 
occasion  to  enter  into  the  facts  of  any  particular  case;  it  would  be  wrong  to  do 
so,  as  there  was  such  an  endless  variety,  all  and  each  attended  with  such  im- 
probable circumstances,  that  no  general  rule  could  be  laid  down.  Every  case 
must  be  decided  by  its  own  particular  circumstances.  His  lordship  said,  as  the 
subject  was  about  to  come  under  the  consideratinn  of  Parliament,  tlie  judges 
had  not  lost  any  time  in  considering  the  questions  submitted  to  them;  and  as 
they  were  unanimous,  witli  the  exception  of  Mr.  Justice  Maule,  they  did  notcon- 


l 


TEST    IX   PENNSYLVANIA, 


261 


Comiiionweiilth  v.  Earkin  —  C'ontimioil. 


sider  it  necessar}'  to  give  tlieir  op  Inions  seriatim.    Tlie  first  question  propounclod 
for  tlieir  consideration  was  as  follows:  — 

'"  What  is  the  law  respecting  alleged  crimes  committed  by  persons  inflicted 
with  insane  delusion  in  respect  of  one  or  more  particular  subjects  or  persons ; 
as  for  instiincc,  when,  at  the  time  of  the  commission  of  the  alleged  crime,  the 
accused  knew  he  was  acting  contrary  to  law,  but  did  the  act  complained  of,  witli 
a  view,  under  tlie  influence  of  insane  delusion,  of  redressing  or  revenging  some 
supposed  grievance  or  injury,  or  of  producing  some  supposed  public  beueflt?  ' 

"  With  respect  to  this  question,  the  opinion  of  the  jmlges  was,  that  notwith- 
standing the  party  committing  a  wrong  act,  was  laboring  under  the  idea  of 
redressing  a  supposed  grievance  or  injury,  or  under  the  impression  of  obtaining 
some  public  or  private  beueflt,  he  was  liable  to  punisli-.iitiit. 

"  Second  question,  '  What  are  the  proper  questions  to  ))e  submitted  to  the 
jury,  when  a  person  alleged  to  be  inflicted  with  insane  delusion  iespecting  one 
or  more  particular  subjects  or  persons,  is  charged  with  the  commission  of  a 
crime,  murder  for  example,  and  insanity  is  set  up  as  a  defence?  '  The  judges 
in  answer  to  this  question,  wished  him  to  state  that  they  were  of  opinion  that 
the  jury  ought,  in  all  cases,  to  be  told,  that  every  man  should  be  considered  of 
sane  mind  unless  it  was  clearly  proved  in  evidence  to  the  contrary.  That  before 
a  plea  of  insanity  should  be  allowed,  undoubted  evidence  ouglit  to  be  adduced 
that  the  accused  was  of  diseased  mind,  and  that  at  the  time  he  committed  the 
act  he  was  not  conscious  of  riglit  or  Avroug.  This  opinion  related  to  every  case 
in  which  a  party  was  charged  with  an  illegal  act,  and  a  plea  of  insanity  was  set 
lip.  Every  person  was  supposed  to  know  what  the  law  was,  and  therefore, 
nothing  could  justify  a  wi'ongact,  except  it  was  clearly  proved  the  party  did  not 
know  right  from  wrong.  If  that  Avas  not  satisfactorily  proved,  the  accused  was 
liable  to  punishment,  and  it  was  tlic  duty  of  judges  so  to  tell  the  jury  when 
summing  up  the  evidence,  accompanied  by  those  remarks  and  observations  as 
tlie  nature  and  peculiarities  of  each  case  might  suggest  and  require. 

"With  regard  to  the  third  question,  viz:  '  In  what  terms  ought  the  question  to 
be  left  to  the  jury,  as  to  the  prisoner's  state  of  mind  at  the  time  when  the  act 
was  committed?  '  —  the  judges  did  not  give  an  opinion. 
"  Tlie  fourth  was  — 

"  '  If  a  person  under  an  insane  delusion  as  to  existing  facts,  commits  an  offence 
in  consequence  thereof,  is  he  thereby  excused? ' 

"The  answer  to  this  (|iiestioii,  that  the  judges  were  unanimous  in  opinion, 
tliat  if  the  delusion  was  only  partial,  tliat  the  iKirty  accused  was  e(|ually  liable 
with  a  ])"rson  of  sound  mind.  If  the  accused  killed  another  in  self-defence,  he 
would  be  entitled  to  an  acipiittal,  but  if  committed  for  any  supposed  injury  he 
would  then  be  liable  to  the  punisliment  awarded  by  the  laws  to  his  crime. 
"  With  regard  to  the  last  question  — 

"  '  Can  a  medical  man,  conversant  with  the  disea.se  of  insanity,  wiio  never  saw 
the  prisoner  previously  to  the  trial,  but  who  was  present  during  the  whole  trial, 
and  the  examination  of  all  the  witnesses,  be  asked  his  opinion  as  to  the  .state  of 
the  prisoner's  mind  at  the  time  of  the  alleged,  crime,  or  his  opinion  whether 
the  prisoner  was  conscious  at  the  time  of  doing  the  act,  that  he  was  acting  con- 
trary to  law?  or  whether  he  was  laboring  under  any,  and  what,  delusion  "at  the 
time? ' 


262 


THE   LEGAL   TEST   OF    INSANITY. 


Notes. 


*'  The  judges  were  of  the  opinion  that  tlie  question  could  not  be  put  to  the 
witness  iu  tlie  precise  form  stated  above,  for  by  doinj^  so  tliey  would  be  assum- 
ing that  facts  liad  been  proved.  That  was  a  question  which  ought  to  go  to  the 
jury  exclusively.  Wlien  the  facts  were  approved  and  admitted,  then  the  (lues- 
tioii,  as  one  of  science,  could  be  generally  put  to  a  witness  under  the  circum- 
stiiuces  stated  in  the  interrogatory. 

"  It  is  for  you,  gentlemen  of  the  jury,  to  apply  the  facts  before  you  to  the  rules 
of  law  we  have  laid  down.  It  is  your  province  to  determine  the  facts,  alone; 
and  in  forming  just  conclusions  relative  to  them,  I  do  not  think  it  would  be 
proiltal)le  to  examine  the  various  speculations  relative  to  the  causes  of  insanity, 
as  they  have  been  read  by  counsel  in  your  hearing,  and  what  various  writers, 
while  indulging  their  roving  fancy,  have  considered  as  evidence  of  insanity,  par- 
tial derangement,  or  monomania;  but,  as  I  have  before  remarked,  these  are  not 
applicable  in  criminal  cases.  A  more  rigid  rule  applies  when  one  asks  a  jury  to 
acfjuit  upon  the  ground  of  mental  incaiiacity.  To  take  the  reported  cases  from 
insane  hospitals  and  mad-houses,  or  instances  of  persons  conllned  or  treated  for 
aberration  of  mind,  would  be  but  a  poor  guide  to  a  jury  in  deciding  whether  the 
prisoner  at  the  bar  possessed  sulllcient  intelligence  at  the  time  he  committed  the 
ortience  to  be  held  criminally  responsible  to  the  law  of  his  country.  It  cannot  l)e 
denied  that  the  opinions  of  learned  nu'dieal  writers  upon  the  indications  of  de- 
ranged minds  are  valuable,  and  entitled  to  consideration  by  a  jury,  when  they 
are  satislied  that  from  long  experience  ami  ol)servation  the  author  has  had  an 
oi)portunity  of  forming  correct  conclusions  upon  the  subject.  Among  the  best 
and  most  sfife  to  be  regarded  in  criminal  trials,  are  found  in  a  treatise  of  Diseases 
of  the  Mind,  by  the  late  Benjamin  Rush,  of  this  city.  A  few  of  his  remarks, 
which  are  applicable  to  a  case  like  the  present,  I  shall  give  you.  This  writer 
observes:  'The  symptoms  of  mania,  as  they  appear  in  the  mind,  vary  with  its 
causes  when  it  is  induced  by  impressions  that  have  been  made  upon  the  brain, 
through  the  medium  of  the  heart.  All  the  faculties  of  the  mind  discover  marks 
of  the  disease  iu  all  their  operations.  In  its  highest  grade  it  produces  errone- 
ous perception.  In  this  state  of  derangement,  the  patient  mistakes  persons  and 
objects  around  him.  This  may  arise  either  from  a  disease  in  the  external  senses, 
in  which  case  it  is  called  morbid  sensation,  or  from  a  disease  in  the  brain.  It  is 
when  it  arises  from  the  latter  cause  only,  a  symptom  of  the  highest  grade  of  in- 
tellectual derangement.  Tersont;  under  the  influence  of  this  <T;rade  of  madness 
sometimes  mistake  their  friends  for  strangers,  and  common  visitors  for  their  rela- 
tives anil  friends.  They  now  and  then  fancy  they  sec  good  and  bad  spirits  standing 
by  their  bedsides,  waiting  to  carry  them  to  a  place  of  torment  or  happiness, 
according  as  their  moral  dispositions  and  habits  in  health  have  prepared  them 
for  these  different  abodes  of  wicked  or  pious  souls.  Not  only  the  eyes,  but  the 
ears  likewise,  are  the  vehicles  of  false  perceptions,  and  to  these  we  are  to  ascribe 
thesolilo(iuies  we  sometimes  observe  in  mad  people.  They  fancy  they  are  spo- 
ken to,  and  their  conversation  freciuently  consists  of  replies  only  to  certain 
questions  they  suppose  to  be  put  to  tliem.  The  latter  occurs  more  or  less  iu 
delirium,  but  we  occasionally  see  them  in  the  highest  grade  of  intellectual  mad- 
ness. When  these  errors  in  perception  take  place,  madness  has  been  cUed  Idea! 
by  Dr.  Arnold,  but  more  happily,  diseased  perception  by  Dr.  Crelgh^^vyu.  It  Is  iu 
this  state  of  madness  only  that  it  is  proper  to  say  persons  are  '  out  of  their 


TEST    IX    PKNN SYLVAN! A. 


263 


JJnnvn  v.  Commonwealth;  Commonwealth  i'.  Winnemoro. 


senses,'  for  the  mhul  no  longer  perceives  the  images  of  external  ol)jccts  from 
tliom.'  1  'lo  not  say  that  this  is  the  only  rule  that  can  be  observed  in  (loeiding 
tlic  question  of  insanity,  but  I  give  it  to  yon  as  one  from  which  it  is  safe  to  draw 
conclusions  upon  this  subject.  It  is  manifest  that  some  such  state  of  derange- 
ment in  the  intellect  must  exist  to  justify  a  jury  in  rendering  :i  verdict  of  not 
guilty  on  the  ground  of  insanity,  when  the  prisoner  is  charged  with  so  heinous  a 
crime  as  that  of  murder. 

"  Other  traits  in  the  character  and  conduct  might  be  mentioned  which  often  lead 
the  mind  to  a  similar  conclusion,  but  this  is  deemed  sullicient  to  direct  your  in- 
quiries after  truth.  You  will  bear  in  mind  that  the  burthen  of  proof  lies  upon  those 
who  made  the  allegation  that  tlie  prisoner  was  insane  when  ho  perpetrated  the 
offence.  All  the  legal  presumptions  are  against  him,  and  they  have  undertaken 
to  rebut  these  presumptions.  Have  they  done  it?  This  point  the  jury  must  de- 
cide. Should  you  be  convinced  that  the  prisoner  was  of  sound  mind  when  lu? 
committed  the  offence,  then  it  is  the  province  of  the  jury  to  determine  whether 
the  crime  is  that  of  m.urder  in  the  lirst  or  second  degree." 

The  jury  found  the  prisoner  guilty  of  murder  in  the  second  degree,  and  the 
court  sentenced  him  t^,  ...elve  years'  conOuementin  the  Eastern  Penitentiary. 

In  the  case  of  Brown  v.  Commonwealth,^  decided  in  Pennsylvania  in  1875,  the 
defence  assigned  error  to  a  charge  of  the  trial  judge  in  these  words:  "  If  he  (the 
prisoner)  had  power  of  mind  enough  to  be  conscious  of  lohnt  he  was  doing  at 
the  time,  then  he  was  responsible  to  the  law  for  the  act."  In  the  Su- 
premo Court  this  instructlou  was  held  correct.  "  It  is  contended,"  said 
Agvew,  C.  J.,  "  this  language  was  incorrect,  and  was  liable  to  mislead  the  jury 
because  the  prisoner  might  be  conscious  of  what  act  he  was  doing,  and  yet,  in 
consequence  of  mental  disability  or  disease,  be  incapable  of  refraining  from  its 
commission.  But  the  charge  has  a  plain  English  meaning  referring  to  the  nature 
of  the  act,  and  when  taken  in  connection  with  other  parts  of  the  charge  this 
portion  is  not  susceptible  of  misconstruction.  All  the  judge  said  referred  plainly, 
not  to  the  mere  act,  but  to  the  prisoner's  consciousness  of  what  he  did  as  crime. 
The  phrase,  '  conscious  of  what  he  was  doing,'  is  idiomatic  and  is  understood 
to  mean  the  real  nature  and  true  character  of  the  act  as  a  crime,  and  not  to  the 
mere  act  itself.  As  used  by  the  judge  in  connection  with  what  else  he  said,  it 
was  not  contradictory  or  misleading.  A  memorable  instance  of  this  idiomatic 
use  of  the  word  what  is  found  in  the  language  of  our  Savior  on  the  cross,  when 
he  said,  '  Fatlier,  forgive  them; /t>r  the;/  know  not  what  they  do!  ^  Clearly  the 
Jews  knew  well  that  they  were  crucifying  Jesus,  but  their  darkened  minds  were 
unconscious  of  the  great  crime  they  were  commitfing." 

In  Commonwealth  v.  Winnemore,^  the  prisoner  was  tried  in  1807  in  the  court  of 
Oyer  and  Terminer  of  Philadelphia,  for  the  murder  of  Dorcas  Magilton.  His  de- 
fence was  insanity.  Bkkwstek,  J.,  in  charging  the  jury  laid  down  the  law  thus  i 
1.  The  burden  of  proof  of  insanity  rests  on  the  defendant.  2.  Proof  of  antece- 
dent insanity  raises  the  presumption  that  the  disease  continues  until  reason  Is 
restored.  3.  If  a  man  has  no  capacity  to  discern  good  from  evil  he  is  not  ac- 
countable. 4.  If  he  is  laboring  under  a  delusion  which,  if  real,  would  excuse 
his  act,  he  is  not  responsible  5.  Evidence  of  insanity  in  prisoner's  ancestors  is 
admissible.     (J.  Epilepsy  is  to  be  considered  as  tending  to  mental  alienation. 


'  78  Pa.  St.  122. 


2  1  Brewst.  366. 


264 


THE   LEGAL   TEST   OF    INSANITY, 


Notes. 


Ills  charge  In  full  was  as  follows:  ♦'  If  yon  should  be  satisfied bej'ond  all  rea- 
sonable doubt,  that  the  defendant  was  tiie  person  who  thus  assaulted  Mrs. 
Majrilton,  then  you  must  consider  the  second  point  presented  for  your  deter- 
mination. 

*'  Upon  this  branch  of  the  case,  it  is  contended  by  the  defence  that  even,  al- 
though you  should  be  satisfied  beyond  all  doubt,  that  the  prisoner  committed  the 
assault  which  resulted  in  the  death  of  Mrs.  Magilton,  yet  he  is  entitled  to  an  ac- 
quittal upon  the  ground  of  insanity.  It  is  undoubtedly  true  that  no  person  who 
is  insane  at  the  time  of  the  commission  of  an  offence  is  amenable  to  punishment. 
Our  statute  defining  murder  in  the  first  degree,  uses  the  words  '  wilful,  deliber- 
ate, and  premeditated;  '  and  it  must  be  clear  to  the  most  limited  understanding 
that  no  insane  person  is  capable  of  exercising  his  own  will  or  deliberating  and 
premeditating. 

"Independently  of  the  words  of  our  statute,  it  would bn  contrary  to  every  im- 
pulse of  true  humanity  to  punish  a  person  who,  by  the  accident  of  birth,  or  tin 
misfortune  of  disease  has  been  deprived  of  sense  of  accountability,  or  of  his 
self-control.  Our  Legislature  distinctly  recognizes  this  humane  principle  of  the 
law.  The  act  of  March  31,  1800,^  expressly  directs  that:  'In  every  case  in 
which  it  shall  be  given  in  evidence,  upon  the  trial  of  any  person  charged  with  any 
crime  or  misdemeanor,  that  such  person  was  insane  at  the  time  of  the  commis- 
sion of  such  offence,  and  ho  shall  be  acquitted,  the  jury  shall  be  required  to  find 
specially  whether  such  person  was  insane  at  the  time  of  the  commission  of  such 
offence,  and  to  declare  whether  he  was  acquitted  b\  them  on  the  ground  of  such 
insanity;  and  if  they  shall  so  find  and  declare,  the  court,  before  whom  the  trial  is 
had,  shall  have  power  to  order  him  to  be  kept  in  strict  custody,  *  *  *  so  long 
as  such  person  shall  continue  to  l)e  of  unsound  mind.' 

"  Admitting,  therefore,  to  its  fullest  extent,  the  general  principle  contended  for 
by  the  defendant's  counsel,  let  us  inquire  what  that  insanity  is  which  excuses  its 
victim  from  legal  accountal)ility. 

"  Before  adverting  to  the  principles  which  should  guide  us  in  such  an  investiga- 
tion, let  me  remind  you  that  the  law  presumes  every  man  to  be  of  sound  mind 
until  the  contrary  appears;  that  the  burden  of  proving  insanity  rests  upon  a  de- 
fendant, and  that  the  point  to  which  inciuiry  is  always  to  be  directed,  is  the  con- 
dition of  his  mind  at  the  time  at  which  the  crime  was  committed.  It  is  not 
enough,  therefore,  to  shield  an  accused  person  from  punishment,  that  he  should 
satisfy  a  jury  that  at  some  period  of  his  life  he  was  insane,  if  the  whole  evidence 
convinces  them  that  at  the  time  the  offence  Avas  committed  he  was  perfectly 
rational,  free  from  delusion,  entirely  the  master  of  his  own  actions, 

"Proof  of  insanity,  antecedent  to  the  offence,  raises  the  presumption  that  the 
disease  continues uutil  reason  is  fully  restored;  but  in  prosecuting  these  inves- 
tigations we  are  not  to  look  simply  at  one  period  of  a  life,  but  at  all  the  events 
of  which  we  have  proof,  and  we  should  regard  each  item  of  evidence  as  a  sepa- 
rate mirror,  throwing  its  light  upon  the  central  point  of  the  case. 

"  Keeping  these  general  rules  in  view,  let  us  return  to  our  inquiry,  '  What  is 
that  insanity  which  excuses  from  legal  accountability?  ' 

"  I  shall  not  attempt  to  cite  to  you  the  numerous  definitions  of  insanity  with 


1  Bright.  Dig.  262,  sect.  66. 


TEST   IN    PENNSYLVANIA. 


2»J5 


Comniouwealth  v.  Wiimemore — Contimicd. 


which  our  books  abound,  nor  shall  I  undertake  to  classify  the  various  diseases 
which  may  be  included  in  the  general  expression,  mental  derangement.  Dr.  Ray 
gives  us  two  general  heads,  and  four  sub-heads.  Fleming  states  two  different 
classiflcations,  with  upwards  of  thirty  subordinates,  and  authors  of  eminence 
differ  from  those  I  have  named,  and  from  each  other  la  their  dissections  of  this 
subject.  Such  abstractions  are  well  suited  for  those  who  make  the  treatment  of 
disease  th<!ir  study;  but  we  are  in  a  court  of  law,  not  a  school  of  science,  and 
our  deliberations  must  be  guided  and  governed  by  legal  adjudications,  aud  not 
by  theories  of  professors,  however  learned. 

«'It  has  been  suggested  by  the  learned  counsel  for  the  defence  that  there  is  no 
accountability  in  the  absence  of  power.  Properly  understood  and  carefully  ap- 
plied, this  statement  may  be  accepted  as  correct.  From  it  and  the  various 
decisions  upon  this  question,  we  think  we  may  safely  lay  down  the  foUowiag 
propositions  as  embracing  the  marrow  of  the  law  upon  the  subject:  — 

"  I.  If  a  man  has  no  capacity  to  discern  good  from  evil,  nor  ability  to  understand 
that  the  act  he  is  about  to  perform  will  render  him  liable  to  human  or  Divine 
law,  he  is  clearly  not  accountable. 

"II.  If  he  possesses  the  capacity  to  discern  good  from  evil,  but  is  laboring  under 
a  delusion  or  hallucination,  which,  if  it  was  real,  would  excuse  his  act,  he  is 
still  irresponsible  to  the  law.  This  is  illustrated  by  Lord  Erskine's  supposition 
that  the  defendant  was  so  far  operated  upon  by  an  insane  delusion  as  to  imagine 
that  the  person  he  struck  was  a  brute  animal  or  a  potter's  vessel.  Other  writers 
refer,  under  this  head,  to  persons  who  imagine  that  they  are  attacked,  and  this 
illustration  is  used  by  the  English  judges  in  their  answer  to  questions  pro- 
pounded to  them  by  the  House  of  Lords  in  June,  1843.  Ills  delusion  may  arise 
from  disease,  or  it  may  arise  from  iiccident  operating  upon  a  perfectly  healthy 
mind.  A  man  may  be  driven  to  an  act  of  violence  by  the  delusion,  amounting  to 
insanity,  tliat  he  is  pursued  or  attacked.  On  the  other  hand,  he  may  have  full 
conti'ol  of  his  reason,  but  may  be  deluded  by  appearances.  Mr.  Levet's  case  '  is 
an  illustration  of  this.  He  killed  the  friend  of  a  servant  who  had  concealed  her- 
>elf  in  the  buttery,  he  beiug  of  the  impression  that  she  was  a  burglar.  He  was 
rightfully  acciuitted. 

"  HI.  If  there  is  no  delusion,  general  or  partial,  and  there  is  a  capacity  to  dis- 
tinguish between  right  anil  wrong,  the  man  may  still  lack,  by  reason  of  the  ope- 
ration of  some  painful  disease,  tlie  power  of  self-control. 

This  is  wliat  is  called  l)y  Cliief  .Justice  (iinsox,^  a  moral  or  homicidal  insanity, 
consisting  of  an  irresistible  inclination  to  kill,  or  to  commit  some  other  particu- 
lar offence.  lie  says:  'There  may  be  an  unseen  ligament  pressing  on 
the  mind,  drawing  it  to  conse(|uences  which  it  sees  but  cannot  avoid,  and  i)lacing 
it  under  a  coercion  which,  while  Its  results  are  clearly  perceived,  is  incapsible  of 
resistance.'  He  adds:  'The  doctrine  whicli  acknowledges  this  mania  is  dan- 
gerous in  its  relations,  and  can  be  recognized  only  in  the  clciirest  cases.  It 
ought  to  be  shown  to  have  been  habitual,  or  at  least  to  have  evinced  itself  in 
more  than  a  single  instance.  *  *  *  To  establish  It  as  a  justitlcation  in  any 
particular  case,  it  is  necessary  to  show  by  clear  proofs  its  contemporaneous  ex- 


1  Hale,  42. 


>  Com.  V.  Mo8ler,4  Pa.  St.  264  (1346). 


2()() 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


istence,  evinced  by  present  circumstances  or  the  existence  of  a  habitual  tendency 
developed  in  previous  cases,  becouiin;;  in  itself  a  second  nature.' 

"  If  you  And  that  the  defendant  killed  the  deceased,  you  may  be  assisted  in 
arriving  at  a  conclusion  as  to  his  accountability  by  asking  yourselves  whether 
you  Hud  from  the  evidence  the  following  facts:  — 

"  1st.  Did  the  defendant  know  who  it  was  that  he  was  attacking  —  that  she  was 
a  human  being  —  and  that  his  acts  would  result  in  her  death? 

"  2d.  Did  he  at  the  time  know  that  his  act  was  forbidden  by  God  and  man? 

"  15(1 .  Did  he  know  and  believe  that  she  was  not  attacking,  harming,  or  endanger- 
ing him? 

"4th.  Was  he  entirely  the  master  of  his  own  actions,  uninfluenced  and  uncon- 
trolled by  any  disease  or  delusion,  general  or  partial,  which  he  could  not  by  the 
exercise  of  his  own  will  overcome? 

"  In  Frcth's  C<tse,^  Brother  Lidlow  wisely  said:  '  If  by  moral  insanity  is  to 
bo  understood  only  a  disordered  or  perverted  state  of  the  affections  or  moral 
powers,  it  cannot  be  too  soon  discarded  as  affording  any  shield  from  punishment 
for  crime.  If  it  can  be  truly  said  that  one  who  indulges  in  violent  emotions, 
such  as  remorse,  anger,  shame,  grief,  and  the  like,  is  alllicted  with  homicidal 
insanity,  it  will  be  dilllcult  —  yes,  impossible,  to  say  where  sanity  ends  and  in- 
sanity begins;  for  by  way  of  illustration,  the  man  who  is  lashed  into  fury  by  a 
lit  of  anger,  is,  in  one  sense,  insane.' 

*'  Without  further  reference  to  authorities  or  principles,  let  us  see  what  is  the 
evidence  of  insanity  in  this  particular  case:  — 

"  1st.  It  is  said  that  the  defendant  has  inherited  this  calamity. 

•'Ills  mother  says  '  that  tliere  has  been  insanity  in  the  family  of  defendant's 
father;  that  a  death  occurred  from  that.' 

"  Our  Supreme  Courts  have  decided  that  evidence  of  this  character  is  clearly 
admissible ;  and  if  you  tlnd  from  the  evidence  that  insanity  is  hereditary  in  de- 
fendant's family,  this  circumstance  should  have  its  due  weight. 

"2d.  It  is  alleged  that  he  received  in  early  life  a  fracture  of  the  skull,  arising 
from  a  fall,  and  that  he  has  been  afflicted  with  epileptic  fits  from  his  youth  to 
within  the  past  week. 

*'  Upon  thks  point  you  have  heard  the  testimony  of  his  mother,  his  sister,  his 
brother,  Mrs.  Patience  Wilson,  and  Ofticers  Coulson,  Ashton,  Taylor,  and  Thomas. 
Dr.  Weir  Mitchell,  Dr.  Edward  A.  Smith,  Dr.  II.  T.  Childs,  and  Dr.  Pancoast, 
have  all  spoken  to  you  of  the  effects  of  epilepsy  upon  the  mind.  They  all  agree 
that  it  may  affect  the  brain,  and  thir.k  that  it  is  one  of  the  causes  of  insanity. 

"  The  Commonwealth  denies  that  the  defendant  has  shown  that  he  has  been 
recently  afflicted  with  epilepsy,  and  they  also  contend  that  the  existence  of  the 
disease  does  not  of  itself  and  necessarily  establish  the  presence  of  insanity. 

"  If  you  find  from  the  evidence  that  the  defendant  is  an  epileptic,  you  should 
remember,  in  weighing  the  other  testimony,  that  this  disease  produces  great 
nervous  susceptibility,  and  a  tendency  to  mental  alienation.  Persons  commit- 
ting a  violation  of  law  while  in  this  condition  are  entitled  to  the  full  benefit  of  all 
the  considerations  which  affect  the  responsibility  of  the  agent.  As  this  disease 
arises  from  different  physical  causes,  it  exerts  different  influences  on  the  mind 


\ 


an 

iia 
en 
in 
pe 
iin 


I  3  Fbila.  109. 


TEST   IN   PIONNSYLVANIA. 


207 


C'oinraouwealth  v.  Wlnneinorc —  Continued. 


and  body.  Ca3sar,  Napoleon,  and  Mohammed  were  affected  by  it  in  a  subordi- 
nate degree.  Tlie  doctrine,  as  laid  down  by  eminent  authors,  is :  •  That,  in  f;en- 
eral  epilepsy,  the  usual  presumption  of  responsibility  applies  to  acts  connnitted 
In  tlie  intervals  of  the  attaciis.' '  But  it  is  added,  *  that  it  is  unjust  to  throw  up(jn 
persons  thus  affected  all  the  responsibility  of  actions  whicli  tliey  may  commit 
immediately  before  or  after  an  attack,  for  authors  are  agreed  tiiat  wlietlu-r  these 
attaclis  occur  frequently  or  rarely,  the  mind  never  fully  recovers  all  its  power.' » 
I'pon  this  point  you  sliouid  bear  in  mind  that  partial  insanity  is  only  an  excuse 
wiien  it  has  had  some  agency  in  destroying  tlie  capacity  to  distinguish  between 
riglit  and  wrong,  in  producing  a  delusion,  or  in  im|)airing  the  power  of  self- 
control. 

"  It  is  said  tliathe  has  made  frequent  attempts  to  commit  suicide.  His  mother 
says  tliat  on  his  return  from  tiie  army  he  took  laudanum  twice  and  suffered  two 
or  tliree  days.  His  sister  says  he  several  times  attempted  his  life,  and  that  once 
ill  her  presence  ho  was  under  the  influence  of  laudanum  two  or  three  days.  .She 
lulds  that  she  'only  knows  of  tlie  other  efforts  from  wliat  otliers  have  said. 
His  brother  also  testifies  to  the  same  effect,  and  his  letter  to  his  friends,  dated 
.•\pril  22,  18G7,  is  relied  upon  as  showing  a  disposition  to  commit  suicide.  You 
have  heard  the  explanations  of  this  letter  from  Chief  Lamon,  as  given  to  liim  by 
tlie  defendant. 

"  IV.  It  is  said  that  his  manner  has  been  foolish  and  tliat  of  a  demented  person. 
His  mother,  his  sister,  his  brothers,  Mrs.  Anna  J.  Wolf,  Mrs.  Mench,  Mrs.  Mc- 
Cormick,  Mr.  Taylor,  Dr.  Robinson,  Thomas  Beach,  John  P.  Lanning  and  Mary 
Jane  Marks,  speak  of  his  motions,  tlie  expression  of  his  eyes,  iiis  general 
beiiavior,  his  melancholy,  his  sleeplessness,  his  declarations  that  he  conversed 
witli  spirits,  and  other  matters,  Avliich  are  doubtless  well  remembered  by  you. 
Finiey  Barber  says  the  defendant  was  not  considered  bright,  and  Ella  J.  Beach 
says  that  in  March  last,  when  tlie  defendant  returned  from  Montana,  he  did  not 
appear  as  when  she  had  seen  him  before. 

"Lastly,  it  is  said  by  the  defendant  that  a  partial  test  of  insanity  is  the  presence 
of  oxalate  of  lime  in  the  urine.  Upon  tliis  being  testitted  to  by  Dr.  Seth  Pan- 
coast,  we  allowed  that  expert  to  state  to  you  the  results  of  an  examination 
made  by  him  with  the  view  of  determining  this  question  upon  tliat  test.  This 
Is  the  first  time,  so  far  as  we  liave  been  able  to  discover,  tliat  such  a  test  has 
ever  been  applied  in  such  a  case.  But  courts  and  juries,  unskilled  in  ques- 
tions of  science,  must  necessarily  receive  instruction  from  tliose  learned  in  the 
suiiject,  which  may  be  the  particular  subject  of  inquiry.  We  therefore  felt 
ourselves  constrained  by  the  decisions  to  admit  his  testimony,  and  you  have 
accordingly  heard  from  Dr.  Seth  Pancoast  his  opinion  that  the  defendant  is 
insane,  and  the  evidences  of  his  insanity  are  the  appearance  of  his  eyes,  the 
color  of  his  skin,  and  the  presence  in  his  urine  of  numerous  deposits  of  oxalate 
of  lime.  Dr.  Pancoast,  however,  admitted  tliat  this  may  exist  to  a  limited 
extent  without  insanity;  and  Dr.  Wm.  Pepper,  a  skilful  medical  expert,  tells  yon 
tliat  this  oxalate  of  lime  is  frequently  found  in  healtliy  urine  after  it  has  stood  a 
sliort  time ;  that  it  occurs  in  dyspepsia,  is  found  after  eating  onions,  rhubarb, 
etc.,  and  that  its  existence  in  no  wav  indicates  a  disease  of  the  brain. 


'  Wharton  &  Ptille,  Md.  Juris.  8ect.  144. 


2  Ibid. 


208 


THE   LEOAL   TEST   OF    INSANITY. 


Nctti'.s. 


"In  rebuttal  of  the  testimony  of  the  defendant's  witnesses,  the  Commonwealth 
relies  upon  the  evidence  of  Mrs.  Sarah  Anthony,  Robert  Anthony,  Chief  Lamon, 
and  Olllcer  James  McCullin,  Jr.  Mr.  and  Mrs.  Anthony  saw  and  conversed  with 
the  defendant  the  ni}j;ht  before  this  occurrence ;  Chief  Lanion  and  Olllcer  Jame.s 
McCuUen,  Jr.,  conversed  with  him  a  few  hours  after  Ills  arrest.  You  doubtles> 
remember  their  testimony,  and  I  will  not,  unless  desired  to  do  so,  pause  to  read 
my  notes  of  their  evidence.  His  diary  is  also  rell'  .1  upon  by  the  Commonwealth 
as  establishing  a  full  possession  by  the  defendant  of  his  faculties. 

"  We  have  been  requested  by  the  prisoner's  counsel  to  charge  you  on  the  fol- 
lowing points :  — 

"  Ist.  If  the  jury  believe,  from  the  evidence  in  the  case,  that  the  prisoner  com- 
mitted the  act  of  killing,  but  at  the  time  of  doing  so  he  was  under  the  inttuencu 
of  a  diseased  mind,  and  was  really  unconscious  that  he  was  committing  a  crime, 
he  is  not  guilty  In  law,  and  should  not  be  convicted  of  any  crime.  We  answer 
this  in  the  afllrmative. 

"  2d.  If  the  jury  believe  that,  from  any  predisposing  cause,  the  prisoner's  mind 
was  impaired,  and  that  he  was  mentally  incapable  of  controlling  or  governing 
his  acts  at  the  time  the  homicide  took  place,  they  must  acquit  him.  We  attirm 
this  point. 

"3d.  If  the  jury  believe  from  the  evidence  that  the  accused,  at  the  time  this  act 
was  committed,  was  capalile  of  controlling  his  acts,  l)ut  from  disease  of  tlie 
mind  was  incapable  of  judging  of  the  nature  of  the  act,  with  reference  to  the 
crime  of  murder,  they  must  acquit  him.    We  allirm  tliis  point. 

"4th.  The  questions  of  fact  implied  in  eacli  of  the  foregoing  points,  like  all 
others  in  the  cause,  are  open  questions  for  tlie  jury,  to  be  decided  by  them 
beyond  all  reasonable  doubt,  against  the  supposition  that  the  prisoner's  mind 
was  in  any  manner  impaired  by  disease  so  .is  to  render  him  unconscious  of  his 
acts,  iucapaljle  of  controlling  tlK;m,  or  of  properly  judging  tlieir  nature  with 
reference  to  the  crime  of  murder,  before  they  can  convict  the  prisoner  of  the 
crime  wherewitli  he  is  charged.    We  allirm  this  point. 

"5th.  The  law  does  not  require  that  insanity  sliall  be  shown  to  exist  for  any 
definite  period,  but  only  that  the  accused  was  suffering  from  a  paroxysm  of 
mental  disease,  whether  short  or  long,  at  the  time  the  act  took  place  which  he  is 
accused  of  coiniiiittiiig.     We  allirm  this  jioint. 

"  6th.  The  motivelessness  of  the  act  itself  is  a  proper  consideration  for  '.Le 
jury  in  weighing  the  eiidences  of  insanity.    We  aftirm  tills  point. 

"7tii.  Every  reasonable  doubt  in  regard  to  the  existence  of  every  fact  neces- 
sary to  constitute  the  guilt  of  the  prisoner  must  be  removed  from  tiie  minds 
of  the  jury,  by  satisfactory  proof  or  evidiMice  produced  in  this  cause,  before 
they  can  convict  tlie  prisoner.    We  allirm  Miis  point. 

"  Wc  believe  tliat  we  have  answered  every  point  presented  by  the  learned  counsel 
for  defendant,  or  suggested  to  us  by  iirolonged  reflection  upon  this  case.  If,  in 
your  deliberations,  any  oilier  matters  should  present  themselves,  you  will,  of 
course,  give  tlieiii  their  proper  weight,  and  discard  nothing  simply  because  I 
have  omitted  to  notice  it. 

"Upon  the  whole  case,  then,  the  first  question  is,  Did  the  defendant  kill  Mrs. 
Magilton?  Consider,  upon  this  point,  all  the  evidence  bearing  upon  it,  and  if 
you  have  a  reasonable  doubt,  give  the  defendant  the  benefit  of  the  character  he 


i 


TEST    IN    TENNESSEE    ANU  TEXAS. 


269 


Clurk  V.  State;  Williams  v.  Statu. 


monwealth 
ii'f  Lumoti, 
versed  with 
llcer  Juinu.s 
1  doubtless 
use  to  read 
monwealth 

on  the  fol- 

soncrcom- 
e  influence 
ig  a  crime, 
iVe  answer 

ler's  mind 
governing 
We  atlirm 

me  this  act 
ise  of  tlie 
ice  to  the 

s,  like  all 
I  by  them 
er's  nund 
ous  of  his 
ture  witli 
aer  of  the 

it  for  any 
axysin  of 
hich  he  is 

an  for  '.l.c 

ct  ncces- 
he  minds 
ie,  before 

d  counsel 
e.  If,  in 
1  will,  of 
)ecause  I 

kill  Mrs. 
it,  and  if 
racter  he 


has  proved,  and  acquit  him.  If  you  have  no  reasonable  doubt  upon  this  first 
question  of  the  case,  you  are  then  to  consider  the  second  inquiry:  Was  the 
defendant  insane  at  the  time  he  committed  the  offence?  A  doubt  here,  again.  Is 
the  property  of  the  defendant.  If  you  acquit  him,  you  arc  required  to  And 
specially  whether  he  was  insane  at  the  time  of  the  offence,  and  to  declare  whether 
he  is  acquitted  on  the  ground  of  such  insaidty." 

§  22. Tennessee  —  Texas.  —  And  the  right  and  wrong  test  is  followed  in 

Tennessee '  and  Texas.* 

In  Clark  v.  State,^  the  Court  of  Appeals  of  Texas  said:  "A  question  is  raised 
as  to  the  sufHciency  of  the  charge  of  the  court  on  an  issue  of  insanity,  set  up  for 
the  defendant  on  the  trial.  The  charge  of  the  court  was  excepted  to,  and  special 
charges  were  asked  which  the  court  declined  to  give,  on  the  ground  that  the  law 
was  properly  given  in  the  general  charge.  The  following  is  found  in  the  general 
charge  of  the  court:  'Among  other  defences  made  in  this  case,  is  insanity  created 
by  jealousy  and  other  conditions  of  the  mind  growing  out  of  the  Inlldelity,  or 
suspected  infidelity,  as  the  case  may  be,  of  the  wife.  In  tliis  connection  you  arc 
charged  that  only  a  person  with  a  sound  memory  and  discretion  can  be  held  pun- 
ishable for  a  homicide,  and  that  no  act  done  in  a  state  of  insanity  can  be  punished 
as  an  offence.  Every  man  is  presumed  to  be  sane  until  the  contrary  appears  to 
the  satisfaction  of  the  jury  trying  him.  He  is  presumed  to  entertain,  until  this 
appears,  a  sufticient  degree  of  reason  to  be  responsible  for  his  acts;  and  to  es- 
tablish a  defence  on  the  ground  of  insanity,  it  must  be  clearly  proved  that  at  the 
time  of  committing  the  act  the  party  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  or  quality  of  the  act 
he  was  doing,  or,  if  he  did  know  that,  lie  did  not  know  he  was  doing  wrong,  — 
that  is,  that  he  did  not  know  the  difference  between  the  right  and  wrong  as  to 
the  particular  act  charged  against  him.  The  insanity  must  have  existed  at  the 
very  commission  of  the  offence,  and  the  mind  must  liave  been  so  dethroned  of  rea- 
son as  to  deprive  the  person  accused  of  a  knowledge  of  the  right  and  wrong  as  to 
the  particular  act  done.  You  are  to  determine  from  the  evidence  in  tills  case 
the  matter  of  insanity,  It  being  a  question  of  fact,  controlled,  so  far  as  the  law  is 
concerned,  by  the  instructions  herein  given  you.'  On  a  comparison  of  this 
cliarge,  with  standard  elementary  writers  on  the  subject  of  insanity  as  a  defence 
for  crime,  and  with  adjudications  of  the  courts  of  this  State,  we  are  of  opinion 
ihat  the  charge,  with  reference  to  insanity  generally,  as  well  as  the  particular 
insanity  or  emotional  derangement  of  the  mind  set  up  in  the  case  was  a  sub- 
stantially correct  enunciation  of  tlie  law  of  the  case,  and  as  favorable  for  the 
defendant  as  the  testimony  warranted."  ♦ 

In  the  opinion  of  Clakk,  J.,  in  the  case  of  Williams  v.  State,^  there  is  this 
paragraph;  "Appellant  was  convicted  of  the  murder  of  one  Frank  Strickland, 
and  his  punishment  assessed  at  death.  On  the  trial  of  tlie  cause,  there  was  evi- 
dence tending  to  show  a  disordered  state  of  the  mind  on  his  part  before  the  kill- 


1  DoTe  V.  State,  3  Heisk.  :!48  (1872) ; 
Stuart  r.  State,  1  Baxt.  180  (1873);  Thomas 
V.  State,  40  Tex.  m  (1874). 

-  Erwin  v.  State,  10  Tex.  (App.)  700  (1881)  ; 
tte  post,  p.  875. 

3  STi'X.  (App.)  350. 

<  Whart.  Cr.  Law,  sects.  15-24;  1  Archb. 


Cr.  Pr.  ft  PI.  4-4,4-6,  and  note  1;  Carter  r. 
State,  12  Tex.  500;  Penal  Code,  arts.  39,  40; 
Webb  t'.  State,  5  Tex.  (App.)  596,  and  au- 
thorities there  cited;  Williams  v.  State,  7 
Tex.  (App.)  163. 

'-  7  Tex.  (App.)  163  (1879). 


270 


THE    LROAL   TEST   OF   INSANITY. 


Not'js. 


ing,  niid  the  issue  of  his  sanity  lit  tiic  tiiiicof  tlio  liomicidu  was  sulimittcd  to  tlio 
jury  ill  tlu!  cliiirge  of  tlio  court.  Tliu  (•li:ir;j;o  ujiou  this  point  was  substaatialiy 
to  tlio  effect  that  uii  net  otherwise  criuiinal,  doiio  and  performed  in  a  state  of  in- 
sanity, is  not  punishable;  litit  tlie  true  inquiry  should  he  whotlier  or  not  tlie 
accused  was  capable  of  having,  and  did  have  a  criiuinal  intent.  If  ho  had  such 
intent  ho  was  punishable,  otherwise  not,  tlie  true  tost  beiiif?  the  capacity  to  dis- 
tinfiuish  between  rijjht  and  wron^  as  to  the  partieurir  act  witli  which  ho  is 
charged.  We  decin  tlio  instruction  in  substantial  accord  witli  establishes!  jire- 
cedents  both  in  our  own  and  other  States.  Webb  v.  State^^  and  autliorlti'.s  there 
cited." 

§  2". United  States  Courts.—  In  the  Federal  courts  the  right  and  wrong 

test  is  recojjnlzeil.' 

§24.  Moral  Insanity — Irresistible  Impulse.  —  Tlie  courts  of  a  few  States 
liavc  not  been  content  witli  the  "  rij^ht  and  wrong  test,"  but  have  Imported  into 
the  law  a  rule  of  irresponsibility  where,  though  the  person  knew  his  act  to  l)e 
wrong,  he  was  driven  to  it  by  an  irresistible  impulse.  This  is  known  as  "  moral," 
as  distinguished  from  "  mental  "  insanity,  and  lias  become  in  some  sections  of 
the  country  a  favorite  defence  to  crime,  where  ail  other  defences  are  wanting- 
This  dangerous  doctrine  takes  its  firmest  hold  in  Kentucky,'  and  has  been  favor- 
ably regarded  in  at  least  one  case  in  Iowa,*  and  one  in  Connecticut.*  There  are 
also  decisions  in  Ohio  and  Minnesota  recognizing  it,«  though,  as  we  have  seen, 
in  both  these  States  the  right  and  wrong  test  prevails. 

Two  nwi/jn'Hs  cases  In  New  York,  Co/«'s  and  Macfarlandi's  Cases,  are  to  the 
same  effect,  and  in  several  trials  of  the  same  kind  in  Pennsylvania,  hints  of  a 
similar  doctrine  are  to  be  found. 

In  CoWn  Cuie,''  tried  in  the  AHiany  (N.  Y.)  Court  of  Oyer  and  Terminer,  in 
November,  18(18,  tlie  prisoner  was  indicted  for  the  wilful  murder  of  L.  Harris 
Iliscock,  on  .Tune,  4,  18C7,  and  pleaded  not  guilty.  Hogebuom,  J.,  charged 
tlie  jury  as  follows :  — 

"  This  protracted  trial  is  about  to  1)0  closed  and  to  be  submitted  to  you  for  final 
decision.  You  are  prepared  for  it  by  faitliful  attention  to  tlie  testimony  and  the 
arguments  of  counsel.  This  att'U^ion  is  called  for  by  the  magnitude  and  impor- 
tance of  the  case.  The  positioi:  ot  ilie  jury  is  a  solemn  and  responsible  one. 
The  life  and  liberty  of  a  felio\\ -citi^ien  is  in  your  hands,  and  is  not  to  be  dis- 
posed of  without  the  most  anxl.tu:.  and  serious  consideration  of  all  the  circum- 
stances and  griive  reflection  upon  tlie    weighty  results  that  hang  upon  your 


'  5  Tex.  (App.)  607. 

=  r.  .S.  t'.  Uohnes,  1  Cliff.  08  (1858) ;  U.  S. 
V.  MctJlue,  1  Curt.  1  (I&51). 

»  Smith  f.  Com.,  1  Duv.  224  (1864) ;  Kriel  v. 
Com.,  5  Bush.  362  (1869);  Scott  v.  Com.,  4 
Met.  (Ky.)  227  (1862). 

<  State  V.  Felter,  25  Iowa,  67  (1868).  But 
seeFouts  r.  State,  4  O.  Greene,  500  (18.54), 
where  it  is  said:  "  From  the  authorities  we 
conduile  that  insanity  cannot  be  set  up  as 
a  defence  to  an  indictment,  unless  it  ap- 
pears that  the  defendant's  mind  ut  the  lime 


of  committing  the  offence,  was  so  deranged 
that  he  did  not  know  tlie  nature  of  the  of - 
cnce,  or  that  lie  was  so  really  deluded  that  lie 
did  not  know  lie  was  doing  wrong."  State  v. 
Sticklcy,  41  la.  232  (KO). 

f-  Anderson  v.  State,  43  Conn.  514  (1876). 
But  see  State  v.  Johnson,  40  Conn.  130 
(1873) ;  State  v.  Richards,  39  Conn.  591  (1873). 

0  Blackburn  v.  State,  23  Ohio  St.  146; 
State  r.  (.Jut,  13  Minn.  Ml. 

'  7  Abb.Pr.  (V.  s.)  321  (1868). 


MOKAI.    INHANITY. 


271 


Colu's  Cast'. 


Ittcd  to  tho 
ubstiiiitlally 
Htate  of  iii- 
or  not  the 
le  luul  sucli 
city  to  (lis- 
k'liifli  ho  is 
lisJiorl  pre- 
rltli.s  there 

and  wronc 

few  Stfttes 
)ortud  into 
J  act  to  be 
i  "moral," 
sections  of 
0  wanting, 
een  favor- 
There  art' 
have  seen, 

are  to  the 
hints  of  a 

■miner,  in 
L,  Harris 
.,  charged 

n  for  final 
ly  and  the 
d  impor- 
sible  one. 

0  be  dis- 
3  circnni- 
pon  your 

1  deranged 
of  tl.o  of 
led  that  lie 
"  State  t). 

S14  (1876). 

3onn.    130 

591  (187:!). 

St.     140; 


decision.  Nevctrthc^lcss  it  isadiity  wliicliyoiicannot  dt'clhif,  wlil(;li  the  law  Iiiih  Im- 
posed upon  yon,  wlilrli  you  liavo  taken  an  o.itli  to  dl.scliar;!(!  wltii  consclentlousnf.ss 
and  tldt'lity,  and  wliicli  must  bo  discharged  with  alisolute  fearii'ssness  and  ini- 
partiailty,  wliatover  may  lie  tlie  consetpiences,  and  upon  wliomsover  they  may 
fail. 

"  George  W.  Coio  stands  indicted  for  tlie  murder  of  L,  Harris  Iliscocli,  on  June 
4,  1807,  at  Stanwl.v  Hall,  in  tlie  city  of  Albany.  Under  tills  indietiiieiit,  lie  may, 
if  tlie  evidence  justilles  it,  be  convicted  of  elllier  of  the  two  degrees  of  murder, 
or  of  the  four  degrees  of  manslaughter,  or  acfiuitted  upon  (he  ground  of  justill- 
ablo  or  e.\cusablo  homicide,  or  of  an  a!)solnlc  or  temporary  deprivation  of 
reason,  tho  result  of  settled  insanity,  or  of  a  momentary,  but  ungovernable 
frenzy  induced  by  the  circumstances  of  the  p.irticular  occasion. 

"  It  may  be  desirable  to  inform  you,  particularly,  of  tlie  ingredients  wliich  goto 
make  up  the  crimes  of  murderand  manslaughter  in  their  various  degrees.  Mur- 
der, in  the  first  degree,  so  far  as  it  can  iiavo  application  to  this  particular  case, 
is  the  killing  of  a  human  being,  when  not  justiliable  or  excusable,  nor  coming 
under  tlie  head  of  manslaughter,  and  jieriietrated  with  a  iin-meditated  design  to 
effect  death.  Tlie  premeditated  design  must  bo  completely  formed  before  the 
act  of  killing,  and  must  precede  the  act,  but  no  particular  space  of  time  i.s  neces- 
sary to  intervene  between  the  complete  conception  of  Its  design  and  its  execu- 
tion. If  a  perfected  design  precedes  the  act,  it  is  murder.  Tills  is  murder  in 
the  first  degree,  and  its  punishment  is  death.  l^Iurder,  in  the  second  degree, 
embraces  all  the  cases  of  murder  which  are  not  included  in  the  dellnitiou  of 
murder  in  tho  first  degree.  It  is  not  well  defined  in  the  law,  but  may  safely, 
I  think,  be  held  to  Include  cases  of  unjustiHai)le,  and  unlawful,  and  inexcusable 
killing,  characterized  by  a  preraeiiitateci  design,  (  r  by  no  premeditation  beyond 
an  intention  to  produce  death;  but  not  by  that  degree  of  enormity,  wilfulness, 
and  premeditation  which  mark  the  commission  of  murder  in  tlie  first  degree. 
Tlie  line  of  distinction  between  murder  in  the  first  degree  and  in  the  second  de- 
gree, is  not  very  clearly  defined  in  the  statute;  and  sometldng  is  left  to  the 
sound  and  intelligent  judgment  of  the  jury  in  fixing  the  degree  of  the  crime.  The 
punishment  of  murder  in  the  second  degree,  if  I  liave  read  tlie  statute  aright,  is 
imprisonment  in  the  State  prison  not  less  than  ten  years. 

"  Mansiaugliter  in  the  first  degree  is  not  applicable  to  the  facts  of  tills  case. 
Perhaps,  not  manslaughter  in  tho  second  degree,  though  one  division  of  it,  the 
killing  of  a  liuman  being  without  a  design  to  effect  death,  in  the  lieat  of  passion, 
but  In  a  cruel  and  unusual  manner,  might  possibly  be  contended  to  embrace  it ; 
but  as  manslaughter  in  the  third  degree  is  tlie  same  offence,  except  that  it  is  killing 
accomplished  by  a  dangerous  weapon,  instead  of  a  cruel  and  unusual  maniu'r,  I 
present  that  aspect  of  the  offence  to  you  as  better  adapted  to  the  facts  of  this 
case  than  manslaughter  in  the  second  degree,  and  also  as  being  milder  In  its 
penalty  and,  therefore,  more  favorable  to  the  prisoner.  The  punishment  of 
manslaughter  in  the  third  degree,  is,  I  believe,  as  modified  by  the  statute  of 
18<!5,  punishment  in  the  State  prison  not  less  than  one,  and  not  more  than  four 
years.  Every  other  killing  of  a  human  being  by  tlie  act,  procurement  or  culpa- 
ble negligence  of  another,  when  not  justifiable,  nor  excusable,  nor  murder,  nor 
manslaughter  of  a  higher  degree,  is  manslaughter  In  the  fourth  degree.  Tiie 
punishment  of  manslaugiiter  in   the  fourth  degree  is  imprisonment  in  the  State 


272 


THE   LEGAL   TEST   OF   INSANITY. 


Notes. 


prison  for  not  exceeding  one  year  or  in  tlie  county  jiiil  not  exceeding  one  year; 
or  l)y  line  not  exceeding  one  tliousand  dollars,  or  l)y  both  such  line  and  imprison- 
ment. The  feature  winch  particularly  distinguishes  manslaughter  from  murder, 
is  tli(i  absence  of  a  design  to  effect  death.  Applying  these  detlnitions  to  this 
particular  case;  if  you  believe  Cole  killed  Iliscock,  without  legal  justiticatiou  or 
excuse,  in  the  possession  of  his  faculties  and  with  a  mind  capable  of  comprehend- 
ing the  quality  of  the  act;  and  with  a  premeditated  design  to  effect  his  death, 
he  is  guilty  of  murder  in  the  first  or  second  degree  according  to  the  enormity  of 
the  act  and  tlie  degree  of  premeditation  with  which  it  was  perpetrated.  If  done 
without  a  design  to  effect  death,  but  in  tlio  heat  of  passion  and  witli  a  dangerous 
weapon,  then  he  is  guilty  of  manslaughter  in  the  third  degree.  If  done  in  some 
other  way,  but  without  a  design  to  effect  death,  aud  iu  the  heat  of  passiou;  tli'.'n 
he  is  guilty  of  manslaughter  in  the  fourth  degree, 

"But  to  constitute  guilt  and  criminality  in  either  of  tliese  various  Avays,  it  is 
necessary  that  the  person  should  be  capable  of  distinguisliing  between  riglit  and 
wrong  in  the  particular  case,  and  as  applied  to  the  features  of  the  particular 
transaction;  that  he  should  be  in  the  possession  of  his  faculties;  in  the  exercise 
of  his  reason ;  not  necessarily  with  faculties  in  the  same  vigor  or  force,  or  under 
the  same  equanimity  of  mind  as  when  perfectly  cool,  or  in  perfect  health,  but 
with  faculties  from  which  reason  is  not  permanently  or  temporarily  dethron('(l. 

"  All  men  have  not  the  same  mental  powers  or  characteristics,  — the  same  man 
is  not  at  all  times  in  the  same  condition  for  the  cool  and  equable  exercise  of  his 
reason  or  mental  powers ;  the  strength  and  vigor  of  his  faculties  may  even  be 
temporarily  or  i)ermanently  impaired  or  diminished  by  sickness  or  bodily  ail- 
ment, or  by  exciting  causes  calculated  to  disturb  his  equanimity  or  to  influence 
his  passions,  yet  if  lie  be  in  the  possession  of  his  senses,  able  to  judge  of  the 
moral  qualities  of  his  acts,  and  of  the  particular  act  for  which  he  is  arraigned, 
and  to  distinguish  between  right  and  wrong  in  regard  to  it,  he  Is  morally  and 
legally  responsilile  for  his  conduct,  amenable  to  the  h^ws  of  the  land,  and  must 
aijide  by  its  mandates  and  penalties.  If  then,  George  W.  Cole  was  in  this  con- 
dition, he  must,  like  other  men,  be  tried  l)y  the  standards  of  the  law,  and  submit 
to  its  judgment.  If,  on  the  contrary,  he  committed  tliis  homicide  when  reason 
was  dethroned,  either  permanently  or  temporarily,  no  matter  from  what  cause, 
he  is  not  amenable  to  the  law,  and  is  not  subject  to  its  punishment  or  its 
penalties. 

"And  of  all  these  facts  necessary  to  establish  crime,  and  to  constitute  responsi- 
'  ■  ty  for  its  commission,  the  Petjple  are  f^  satisfy  you,  and  to  satisfy  you  lieyond 
a  :easonable  doubt.  They  are  to  convince  j'ou  that  the  prisoner  was  a  rational 
l)eing  in  the  possession  of  Ills  senses  with  the  power  to  discriminate  between 
right  aud  wrong  in  the  particular  case,  and  that  the  act  whioh  he  committed,  and 
for  which  he  is  now  on  trial,  falls  within  one  of  the  various  offences  to  whicli  I 
have  referred.  And  if  there  be  a  rational  doubt  of  this  upon  your  minds,  the 
prisoner  is  entitled  to  the  benefit  of  that  doubt.  The  prosecution  must  make 
out  to  your  satisfaction  the  guilt  of  the  prisoner  in  regard  to  all  the  features  of 
th'j  crime,  and  satisfy  you  of  their  existence  beyond  a  reasonable  doubt.  Tlius 
if  the  charge  be  murder,  they  nmst  convince  you  that  the  killing  was  perpetrated 
by  the  defendant,  that  it  was  done  with  premeditated  design,  and  liy  a  person  of 
sane  mind. 


)onsi- 
leyoiul 
[tlonal 

tWfPll 

Ll,  and 
liicli  I 
s,  the 
Irriako 
:'os  of 
iTlius 
rated 
Ion  of 


MORAL    INSANITY. 


273 


Cole's  Case  —  Coiitimud. 


"  No  doubt  sanity  is  tlie  normal  or  usual  condition  of  human  beings,  and  henco 
ordinarily  you  would  bo  satisllcd  of  its  existence  by  much  less  proof  than  you 
would  be  in  some  other  cases.  But  still,  either  by  presumption  of  law  or  posi- 
tive proof,  you  must  be  satisfied  of*  its  existence,  and  of  its  existence  beyond  a 
reasonable  doubt.  This  doubt,  h<jwever,  must  be  one  that  fairly  arises  upon 
the  evidence,  not  merely  speculative  or  fanciful,  but  one  that  commends  itself  to 
your  judgment  upon  a  fair  and  rational  construction  of  the  evidence,  not  to  be 
Ii;ilitly  or  capriciously  indulged,  and  especially  not  as  a  mere  mode  of  evading 
the  responsibility  of  a  careful  and  deliberate  judgment  upon  the  u;stimony,  I)ut 
a  doubt  resting  upon  your  minds  as  a  result  of  a  most  conscientious  examina- 
tion of  the  evidence. 

"These  are  the  tests  which  you  must  bring  to  the  examination  and  decision  of 
this  case,  and  by  which  you  must  be  controlled  in  the  result  to  which  you 
ultimately  arrive. 

"  Having  tluis  defined  the  offences  of  which  it  is  possible  under  this  indictment 
to  convict  the  prisoner,  if  your  views  of  the  evidence  warrant  it,  let  us  turn  our 
attention  a  little  more  particularly  to  the  facts  of  this  case,  and  the  allegations 
of  the  parties  in  regard  to  them. 

"  I.  The  leading  fact  of  the  killing  of  L.  Harris  Hiscock  by  George  W.  Cole,  is 
not  denied.  It  is  very  distinctly  proved  to  have  occurred  at  Htiinwix  Hall,  Al- 
bany, on  the  4th  of  June,  18(i7,  by  a  pistol  shot,  producing  almost  instant  death. 
As  no  provocation  appears  to  have  been  given  at  the  time  of  the  homicide,  nor 
any  conversation  was  had  bet'veeu  the  parties  at  tlie  moment,  we  must  probably 
look  elsewhere  for  the  cause  which  produced  it,  and  for  the  justification  by  which 
it  is  to  be  maintained.  And  there  being  no  justification  (that  question,  I  how- 
ever, submit  to  you)  apparent  in  the  circumstances,  occurring  at  the  time,  you 
would  probably  consider  yourself  justified  in  concluding,  that  in  the  absence  of 
explanatory  circumstances,  it  would  bo  safe  to  infer  malice  aforethought,  or  a 
premeditated  design  to  effect  the  death  of  the  person  killed. 

"  II.  There  are,  however,  if  I  understand  the  line  of  defence,  two  reasons 
claimed  to  exist  which  should  protect  the  defendant  from  punishment. 

"  1.  Because  the  defendant  was  not  In  a  state  of  mind  that  renders  him  respon- 
sible for  tlie  act,  —  in  other  words,  that,  from  causes  operating  for  a  considerable 
length  of  time  beforehand,  or  recently  or  suddenly  occurring,  he  was  mentally 
unconscious  of  the  act  in  which  he  was  engaged,  and  legally  irresponsible  for  it. 

"2.  Because  the  deceased  had  seduced  the  wife  of  the  defendant,  and  that,  in 
the  transport  of  rage  produced  in  the  defendant  by  such  an  invasion  of  domestic 
rights,  or  by  the  sudden  and  overwhelming  disclosure  of  the  fact  to  him,  he 
committed  the  homicide  for  which  he  is  now  on  trial. 

"As  the  first  of  these  defences,  if  established,  furnishes  a  complete  and  abso- 
lute protection  to  the  defendant  from  any  liability  to  tlie  law  for  the  act  com- 
mitted, it  may  be  well  to  examine  that  first  in  order. 

"The  first  defeui^o  relied  on,  then,  is  Insanity,  —  a  deprivation  of  reason  at  the 
time  the  act  was  committed,  resulting  either  from  a  settled  and  well-established 
mental  alienation,  or  from  the  pressure  and  overpoweriHg  weight  of  the  circum- 
stances occurring  at  the  time,  and  the  transport  of  passion  arising  from  suciden 
and  crushing  information  of  the  infidelity  of  his  wife,  yielding  to  the  arts  and 
seductions  of  her  paramour.  Aa  I  have  just  stated,  this  is  a  \alid  defence^ 
18 


274 


THE    LEGAL   TEST   OF    INSANITY. 


Note; 


if  satisfactorily  established  hy  the  evidence.  If  reason  was  in  fact  dethroned, 
if  Cole  was  not  at  the  time  in  the  possession  of  his  faculties,  if  tlicy  were  over- 
powered and  lost  in  the  presence  and  under  the  influence  of  an  overwhelming 
domestic  calamity,  if  Cole  was  at  the  time  incapable  of  distinguishing  betwoon 
right  and  wrong  in  regard  to  this  transaction,  or  of  aiipreciating  the  moral 
quality  of  his  act,  and  the  evidence  satisfies  you  that  this  was  so,  then,  like 
every  other  man  in  that  condition,  he  cannot  be  held  criminally  responsible  for 
the  homicide,  and  is  entitled  to  your  verdict  of  acquittal. 

"But  while  you  must  remember  that  the  prisoner's  sanity  must  be  established 
by  the  prosecution,  and  established  beyond  a  reasonable  doubt,  you  must  also 
remember  that  the  ordinary  condition  of  men  is  sanity,  and  not  insanity,  ami 
that,  as  a  general  rule,  he  is  responsible  for  his  acts,  and  not  exempt  from 
responsibility. 

"  In  judging  of  Colo's  mental  condition,  it  is  highly  important  particularly  to 
examine  his  conduct  at  the  time  and  about  the  time  of  the  transaction. 

"If  Cole  committed  this  act  with  apparent  coolness  and  deliberation,  —  al- 
though more  or  less  excited,  —  spoke  of  it  with  apparent  Intelligence  and  decision 
and  appreciation  of  its  character  and  effect ;  if  he  mentioned  it  immediately  after- 
wards, as  if  he  understood  what  he  had  been  doing,  and  recognized  its  natun; 
and  object;  if  he  armed  himself  with  a  pistol  or  pistols  the  day  before  at  Syra- 
cuse, and  you  shall  conclude  he  did  so  with  reference  to  this  encounter  and  this 
occasion,  —  of  which  you  are  to  judge  with  most  careful  discrimination,  because 
it  bears  with  much  force  on  the  issues  in  this  case ;  if  he  took  measures  to  have 
a  weapon  or  weapons  in  a  situation  to  be  effective,  and  located  them  so  as  to  be 
likely  to  operate;  and  if,  after  reflection  on  the  subject  and  a  conference  with 
one  or  more  of  his  friends,  he  proceeded  deliberately  to  the  commission  of  the 
act  of  killing,  and  with  effect;  these  are  all  legitimate  subjects  for  your  con- 
sideration, as  well  on  the  question  of  sanity  as  oa  the  question  of  premeditated 
design  to  effect  the  death  of  the  person  killed. 

"  You  must  judge  of  the  character  and  motive  of  the  defendant's  acts.  What 
was  his  object  In  providing  himself  with  those  pistols?  Was  it  with  reference 
to  this  occasion,  or  was  it  in  connection  with  the  discharge  of  his  duties  in  the 
revenue  service?  Was  the  killing  (as  the  defendant's  counsel  contend)  not  pre- 
meditated when  the  prisoner  visited  and  entered  Stanwix  Hall?  Was  he  moved 
to  the  commission  of  this  act  by  the  sudden  access  and  irresistible  pressure 
of  excited  and  overwhelming  passion,  roused  by  the  stidden  and  unexpected 
sight  of  the  destroyer  of  his  domestic  peace,  or  he  whom  he  supposed  to  he 
such,  —  the  defller  of  his  marriage  bed,  the  seducer  of  the  dearest  object  of  his 
affections,  —  dethroning  his  reason  and  pressing  him  on  to  the  commission  of 
this  act,  under  the  influence  of  an  ungovernable  freuzy,  unsettling  for  the  time 
his  faculties,  and  enthroning  insanity  in  their  place? 

"These are  questions  submitted  to  your  most  careful  and  deliberate  judgment, 
and  will  require  the  application  of  your  best  faculties  and  your  most  impartial 
and  conscientious  deliberations,  in  order  to  conduct  you  to  a  right  result. 

"  The  defendant's  state  of  mind,  as  evinced  by  his  conduct,  by  his  declarations, 
and  his  acts,  by  his  bodily  ailments  as  effecting  his  mental  condition,  his  clieer- 
ful  or  moody  temperament,  the  change  (if  there  was  one)  in  the  character  of  his 
temper  and  disposition,  the  extent  to  which  it  was  carried,  the  causes  which 


ithronofl, 
ere  over- 
ivhelinin;; 
between 
he  moral 
tlien,  liko 
nsible  for 

utablished 
must  <ils() 
sinity,  and 
mpt  from 

cularly  to 

;ion,  —  al- 
d  decision 
tely  after - 
its  nature 
■e  at  Syra- 
ir  and  this 
n,  because 
•es  to  liave 

0  as  to  l)e 
pence  witli 
ion  of  the 
your  con- 
meditated 

ts.  What 
reference 
;ies  in  tlie 
)  not  pre- 
he  moved 
pressure 
nexpected 
sed  to  be 
ect  of  his 
lission  of 
the  time 

judgment, 

1  impartial 
alt. 

|larations, 
lis  cliecr- 
Itcr  of  his 
Les  which 


MOIiAL   INSANITY 


275 


Cole's  Case  —  Continued. 


produced  it,  and  other  circumstances  not  necessary  to  be  alluded  to  at  crrcater 
lenjith,  as  exhibited  at  and  about  tlie  period  of  the  homicide,  and  for  a  period 
previous  thereto  more  or  less  distant  from  the  central  and  important,  to  whicli 
your  attention  will  naturally  be  more  especially  directed  —  are  all  important 
subjects  for  your  consideration,  and  entitled  to  more  or  less  weight,  accordiiis; 
to  their  nature,  and  to  some  extent  according  to  their  nearness  in  point  of  time 
to  the  scene  of  the  fatal  transaction. 

"  In  illustration  of  the  prisoner's  mental  condition,  much  medical  evidence  has 
been  introduced,  and  must  be  considered  Ijy  you.  It  is  for  you  to  judge  of  its 
weight  and  character,  and  determine  it  by  the  best  light  you  have.  As  one 
means  of  determining  It,  it  seems  to  me  (it  is,  however,  for  you  to  judge)  that, 
other  things  being  equal,  those  medical  witnesses  who  were  acquainted  with 
the  prisoner,  with  his  ordinary  habits  and  temperament,  with  his  personal 
Idstory  before  and  at  the  time  of  the  transaction,  would  on  that  account  possess 
some  advantages  in  forming  an  estimate  of  the  prisoner's  mental  condition. 

"  Still  much  must  depend  upon  the  capacity,  judgment  and  discrimination  of 
the  particular  witness,  and  upon  the  manner  in  which  the  testimony  is  pre- 
sented. With  witnesses  who  have  not  had  a  personal  acquaintance  with  the 
prisoner,  or  opportunity  for  a  personal  examination,  the  weight  of  their  testi- 
mony mu:^t  depend  somewhat  upon  other  considerations,  and  upon  evidence  of 
the  causes.  Influence,  symptoms  and  characteristics  which  usually  mark  the 
presence  of  mental  derangement.  Some  of  this,  perhaps  much  of  this,  where 
the  prisoner  has  not  been  known  or  personally  examined,  must  necessarily  be 
more  or  less  matter  of  mere  opiuiou,  the  value  of  which  it  is  not  always  possi- 
ble correctly  to  estimate. 

"  Several  causes  may  operate  to  produce  insanity  and  are  entitled  to  more  or 
less  consideration  in  the  particular  case. 

"Insanity  is  sometimes  inherited  —  transmitted  down  In  the  line  of  family 
descent,  occasionally  not  exhibiting  itself,  and  again  reappearing  after  one  or 
more  generations.  Some  evidence  of  this  taint  of  insanity  existed  in  the  family 
of  the  defendant.  This  is  a  subject  for  your  consideration;  but  you  must  re- 
collect that  the  reappearance  of  this  mental  disorder  is  not  uniform,  and  you 
must  carefully  scan  the  prisoner's  declarations,  his  acts,  his  general  conduct, 
his  mental  manifestations,  to  see  whether  you  find  in  them  the  traces  of  actual 
insanity  —  that  actual  mental  derangement,  which  alone  can  avail,  so  far  as  this 
point  is  concerned,  to  accomplish  perfect  immunity  from  criminal  responsi- 
bility. 

"  Again  it  is  said  that  the  prisoner's  bodily  ailments  were  ot  such  a  cliaracter 
as  justly  to  lead  to  the  inference  that  they  were  calculated  to  affect,  and  did 
affect,  his  mental  organization  and  developments  in  such  a  way  as  to  produce 
Insanity.  There  seems  no  reason  to  doubt  that  in  1802,  while  doing  honorable 
service  in  the  cause  of  his  country  —  for  which,  whatever  may  be  his  fate  under 
tills  accusation,  he  deserves  grateful  recognition  —  received  a  severe  and  crush- 
ing injury,  followed  by  other  injuries  thereafter,  from  the  effects  of  which  he 
has  not  yet  fully  recovered,  which  more  or  less  disabled  him,  and  which  were 
cdculated  to  have,  and  did  have,  a  depressing  effect  upon  his  spirits  and  tem- 
perament, making  him  more  or  less  moody  and  melancholy,  producing  more  or 
less  aud  sometimes  very  considerable  depression  of  spirits,  resulting  as  his 


276 


THE   LEGAL   TEST   OF    INSANITY. 


Noti'S. 


counsel  claim,  in  a  settled  melancholy,  allied  to  if  not  identical  with  the  melan- 
cholia of  the  medical  profession,  and  constituting  one  of  the  various  forms  in 
which,  as  they  contend,  insanity  is  manifested. 

"  But  even  if  Cole's  mental  manifestations  were  of  this  clear  and  decided  char- 
acter, and  had  assumed  tlic  form  of  the  melancholia  of  the  doctors,  this  is  not 
precisely  the  insanity  re(|uired  by  law  to  sliield  its  possessor  or  subject  from 
responsibility  to  the  criuiinal  laws  of  the  land.  The  insanity  of  the  medical  pro- 
fession, as  described  before  you  by  several  of  its  leadinu;  professors,  is  not  pre- 
cisely the  insanity  of  the  law.  They  describe  melancholia,  which  seems  to  b(! 
marly  synonymous  with  a  settled  melancholy  of  an  excessive,  aggravated,  and 
unreasonable  character,  indicated  by  a  higlily  nervous  and  unusually  moody  tem- 
perament, and  by  a  mind  more  or  less  morbidly  affected  in  its  ordinary  functions, 
as  insanity. 

"  JJut  whether  these  inay  be  more  or  less  present  in  legal  insanity,  or  the  insanity 
recognized  by  the  law,  they  are  not  precisely  that  kind  of  insanity  or  mental  un- 
soundness which  marks  exemption  from  criminal  responsibility.  The  law,  in 
dotormiiiing  a  [terson's  responsibility  for,  or  immunity  from  crime,  applies  a  vrry 
simple,  Init  easily  comprehended  test,  and  it  is  this:  Did  tlie  accused  party 
understand  the  nature  of  the  act  in  which  he  was  engaged,  so  as  to  understand 
whether  it  was  right  or  wrong?  Was  his  reason  dethroned  or  operative?  Was 
he  able  to  comprehend  the  nature  of  his  conduct  or  not?  If  he  was,  then  he  is 
responsible  to  the  laws  of  his  country,  is  bound  to  ol)ey  them,  and  is  punishable 
for  their  violation.  It  may  be,  therefore,  that  he  was  sul)ject  to  melancholy  in 
an  aggravated  form.  So  long  as  it  does  not  sap  or  subvert  tlie  foundation  of  his 
intellectual  faculties,  he  may  be  carried  under  the  pressure  of  excited  feeling 
into  an  outburst  of  passion,  Avhich  may  be  next  to  uncontrollable ;  yet  if  reason 
presen-es  her  dominion  over  his  intellectual  powers  and  has  not  yielded  her  tiirone 
to  the  frenzy  of  mental  alienation  or  madness  —  if,  notwithstanding  all  this,  lie 
has  sufficient  comprehension  of  the  nature  of  tlie  act  in  which  he  is  engaged  to 
appreciate  its  moral  quality,  to  distinguish  right  from  wrong  —  if  he  knows  he 
is  doing  an  act  forbidden  by  law,  he  is  held  accountable  for  his  acts,  he  must  !)<■ 
regarded  as  violating  the  laws  of  his  county,  and  must  abide  the  fate  of  other 
criminals." 

[The  judge  here  read  the  opinions  of  the  court  in  Freeman  v.  People,^  Willis  v. 
People,^  and  0''Brien  v.  People?"] 

"  This  is  all  I  deem  it  necessary  to  say  to  you  on  this  first  and  principal  branch 
of  the  defence.  I  cannot  comment  on  the  evidence  in  detail.  Tiiis  has  been  done 
in  the  most  able  and  discriminating  manner  by  counsel.  And  j'ou  will  probal)ly 
be  able  to  come  to  a  conclusion  satisfactory  to  yourselves  on  this  leading  branch 
of  tlie  defence. 

'♦  The  conduct,  the  temperament,  the  bodily  ailments,  i  e  mental  manifestations, 
the  personal  history,  the  traits  and  characteristics  of  e  defendant,  have  been 
pretty  thoroughly  scanned  and  held  up  to  your  view,  as  exhibited  from  18C1  to 
the  present  time.  And  I  think  I  need  not  make  any  further  suggestions  to  you 
in  regard  to  them  than  to  suggest  that,  as  far  as  possible,  you  bring  them  all  to  a 
practical  test,  and  determine  by  his  actual  mental  manifestations,  as  developed 


'  4  Denio,  0. 


a  32  N.  Y.  715. 


»  36  Id.  576. 


MORAL    INSANITY. 


277 


Cole's  Case  —  Continued. 


in  his  clmractcr,  his  declarations  and  his  conduct,  his  ordinary  and  daily  habits 
of  life,  his  attention  to,  and  capacity  for  business,  tlie  impression  made  in  ail 
these  respects  upon  those  who  associated  with  and  knew  him,  whether  he  should 
stand  exempt  from  lial)ility  to  the  criminal  laws  of  his  country,  or  had  sulHcient 
moral  sense  or  intellectual  capacity  to  be  subjected,  like  ordinary  men,  to  her 
mandates  and  her  penalties. 

"The  value  of  the  medical  evidence  you  must  estimate  for  yourKClves.  You 
are  yourselves  the  ultimate  judges  on  this  point.  And  it  is  upon  your  own 
jiulgment,  as  founded  upon  the  evidence,  tliat  the  result  must  Anally  depend. 
The  opinions  of  medical  men  may  have  a  certain  value  in  enlightening  your 
iiiiuds  in  regard  to  it,  but  it  should  by  no  means  induce  you  to  discard  j'our  own 
careful  and  deliberate  judgment  upon  the  whole  testimony. 

"And  of  the  existence  of  this  fact  of  insanity,  as  of  all  other  facts  in  the  case, 
you  are,  as  counsel  liave  been  careful  to  impress  uj^on  you,  yourselves  and  not 
the  court,  to  be  the  final  and  intelligent  judges.  The  court  has  no  disposition 
to  invade  your  province  on  that  subject;  but  this  will  not,  I  presume,  induce  3'ou 
to  aiscard  or  reject  any  suggestions,  coming  from  what  quarter  they  may,  tliat 
seem  to  you  to  have  any  intrinsic  force;  or  to  aid  you  in  arriving  at  an  intelli- 
gent judgment  upon  the  case.  None  of  us  are  so  wise  that  we  can  safely  afford 
to  reject  adventitious  aid  on  a  matter  so  important;  and  in  a  matter  of  life  anil 
death  the  responsibilities  are  too  great  to  induce  us  to  attempt  to  be  too  self- 
reliant. 

".Vnother  defence  set  up  on  this  occasion  is,  that  Iliscock  was  the  seducer  of 
Colo's  wife,  and  therefore  justly  liable  to  his  vengeance.  No  doubt  such  a  de- 
fence, if  established,  would  strongly  appeal  to  your  sympathies,  being  regarded 
in  some  quarters  as  no  more  than  a  just  vindication  of  marital  rights,  and  the 
only  efflcient  mode  of  protecting  the  purity  and  inviolability  of  the  marriage 
bed.  But  we  are  not  here  to  administer  sympathy,  but  to  execute  justice;  to 
carry  into  effect  the  laws  of  the  land ;  to  enforce  its  solemn  mandates,  and  not 
to  nullify  or  relax  its  positive  commands  by  misplaced  sympathy,  or  morbid 
clemency.  If  our  duty  is  clear,  we  forswear  ourselves  if  we  do  not  perform  it. 
I  liave  taken  a  general  oath  faithfully  to  perform  the  duties  of  my  office;  you 
liave  taken  a  special  oath,  well  and  truly  to  try  and  true  deliverance  make  be- 
tween tlie  People  of  the  State  of  New  York  and  George  \V.  Cole,  and  a  true  ver- 
dict render  according  to  the  evidence,  so  help  you  (iod.  This  duty  we  must 
discharge,  at  whatever  hazard,  whetlier  painful  or  agreeal)le.  Neither  manhood 
nor  honor,  the  restraints  of  conscience,  nor  tiie  solenni  mandates  of  the  law, 
allow  us  to  decline  its  performance,  or  to  hesitate  at  its  execution. 

"Many  laws  may  net  be  in  precise  accordance  with  our  views  of  policy,  or 
even  of  stiiet  justice,  yet  it  would  lead  to  the  utmost  confusion  and  injustice 
should  we  refuse  to  exe<!Ute  them.  If  we  are  dissatisfied,  we  should  apply  at 
the  proper  time  to  the  projjcr  forum  for  their  amendment,  or  seek  to  avert  their 
excessive  rigor  by  an  apjieal  to  executive  clemency.  Certainly,  it  ia  to  be  re- 
srretted  if  further  legal  enactment.^  could  be  of  any  avail  to  restrain  the  unholy 
passions  and  devilish  arts  of 'the  seducer  and  adulterer,  that  they  have  not  here- 
tofore been  made.  But  the  wisdom  and  efficiency  of  such  enactments  have  been 
Muesticned.  It  is  enough  for  us  to  know  that  we  must  administer  the  law  as  it 
Is,  and  have  no  right  to  usurp  legislative  power,  and  apply  to  a  past  transaction 


■ 


278 


THE   LEGAL   TEST   OF   INSANITY. 


Notes. 


laws  of  our  own  creation.  The  injustice  and  unconstitutionality  of  such  a  pro- 
coodinij;  would  l)e  nianifest,  and  the  gravest  objections  to  it  exist.  Let  us  con- 
tent ourselves  with  administering  the  law  as  we  find  it  in  our  own  appointed 
spliere  of  duty.  Then  sliall  we  have  consciences  void  of  offence  towards  all 
men,  and  the  happy  consciousness  that  in  the  spirit  of  our  oaths,  and  in  con- 
formity Willi  the  obligations  wluch  rest  upon  us,  we  have,  as  faithful  and  law- 
abiding  citizens,  executed  the  law  of  the  land. 

'*  But  tliere  are  several  reasons  why  you  cannot  give  effect  to  this  defence:  — 

"  1.  The  adultery  is  not  in  proof.  It  has  not  been  established  by  the  evidence. 
If  that  evidence  has  been  improperly  excluded,  the  responsil)ility  for  tliat  error 
is  with  the  court,  and  its  correction  l)elongs  to  another  forum,  and  may  be  ac- 
complished under  the  exceptions  talcen  by  the  defendant  to  the  decisions  of  the 
court.  The  statements  of  the  prisoner  are  not  evidence  of  that  fact.  Tiiey  were 
not  called  fo>"  with  any  view  to  make  them  evidence  for  such  a  purpose.  Tlicir 
objc't  Av.  lustrate  the  premeditated  design  on  liis  part.    Being  perfectly 

legitiiJuit'  -1     ,  a  purpose,  and  offered  with  that  view,  and  direct  evidence  of 

adultery  aaving  been  excluded  by  the  court,  they  are  not  competent  testimony  to 
prove  the  adultery  be.ause  they  are  not  offered  and  received  with  that  view,  and 
because  t!\ur'>  '  •  no  p  ",e  that  the  defendant  had  personal  knowledge  on  this 

subject  which  aouUI  .mi' Its  bun  to  give  primary  or  admissible  evidence  with 
reference  to  it.  There  might  l)e  a  state  of  facts,  —  for  example,  if  a  husband 
should  rush  from  his  own  bed-room,  with  a  knife  or  dagger  in  his  hand,  red  and 
dripping  with  blood,  where  his  statement  that  he  had  just  slain  the  adulterer  in 
the  very  perpetration  of  a  domestic  wrong,  contemporaneous  with  the  act,  and 
consistent  with,  and  explanatory  of,  the  surrounding  circumstances,  miglit  l)e  so 
interwoven  and  blended  with  tiie  transaction  as  to  allow  it  to  be  received,  in 
connection  with  other  evidence,  as  original  or  primary  proof  of  the  facts  them- 
selves. But  here  the  declarations  of  tlie  prisoner  do  not  cover  sucli  a  case,  — 
are  not  intended  to  be  applicable  to  such  a  transaction,  and  are  shown  by  other 
proof  in  the  case  to  refer  to  occasions  considerably  removed  in  point  of  time 
from  that  Avhich  is  tlie  subject  of  your  present  consideration.  The  confessions, 
or  alleged  confessions,  of  the  wife  do  not  prove  it.  They  were  not  admitted  for 
such  a  purpose,  and  are  not  to  have  tliat  effect.  Their  introduction  was  per- 
mitted, not  as  furnishing  evidence  of  the  facts  themselves,  but  as  communica- 
tions made  to  the  husband,  and  which  were  calculated  more  or  less  to  operate 
upon  his  mind,  and  influence  his  conduct,  and  to  enable  you  in  the  light  of  sub- 
sequent events  to  judge  how  far  tliey  did  so  operate,  and  to  determine  to  what 
extent  the  knowledge  or  information  of  these  facts  was  calculated  to  explain  an  I 
to  mitigate,  or  to  justify  tlie  homicide  sul)sequently  committed.  As  interpreting 
the  prisoner's  subsequent  conduct,  as  throwing  liglit  upon  the  state  of  his  mind, 
they  are  admissible  and  proper  to  be  considered.  As  furnishing  evidence  to  you 
in  this  case  of  the  commission  of  adultery,  tliey  were  not  allowed  to  be  intro- 
duced, and  are  not  proper  to  lie  considered. 

**  Hence,  if  you  ac(]uit  the  defendant  upon  that  ground,  you  acquit  upon  a 
ground  not  established  by  the  evidence.  * 

"  It  may  be  that  the  deceased  was  not  guilty  of  this  offence.  He  has  not  had 
any  opportunity  to  try  tlu.L  question,  and  his  lips  are  now  scaled  in  death.    We 


arel 
poll 

cvel 

.IS 

;ii:c| 
inal 
(leij 
waj 


MORAL    INSANITY. 


279 


Cole's  Case  —  Contiuued. 


are  not,  therefore,  in  .a  condition  to  say  on  wliicli  side  upon  a  fair  trial,  tlje  pre- 
|)()nderauce  of  the  evidence  would  be. 

"  It  is  susyested  that  no  case  has  ever  occurred  in  which  this  evidence  lias 
(vor  been  ignored  by  a  jury.  That  is  not  the  (juestion.  It  is  not  necessary  for 
lis  to  iiKiuirc  whether  former  juries  have  or  have  not  violated  their  oaths  by 
accepting  as  evidence  facts  which  have  not  been  proved.  It  is  a  dangerous  and 
inadmissible  proceeding  in  a  court  of  justice.  We  stand  upon  the  recorded  evi- 
dence, and  no  other.  Whatever  may  be  our  suspicions,  we  have  no  right  to  give 
way  to  them,  unless  they  are  supported  by  the  evidence  in  the  case. 

"Whatever  I  may  suspect,  or  you  may  c(»njecture,  outside  of  the  range  of  the 
proved  or  admitted  facts,  we  cannot  justify  ourselves  to  our  (iod  and  our 
country  otherwise  than  by  rendering  a  verdict  according  to  the  evidence,  ^'either 
the  presence  of  sympathy,  nor  the  alleged  hardship  of  the  case,  nor  the  sophistry 
of  counsel  should  allow  us  to  take  any  other  course. 

"  But  it  is  said  that  the  prisoner  was  informed  of  facts  tending  to  fix  upon  the 
deceased  this  invasion  of  his  marital  rights;  and  that,  oppressed  by  the  crush- 
ing weight  of  such  a  disclosure,  he  rushed  to  the  vindication  of  his  marriage 
bed,  under  a  transport  of  passion  which  any  honorable  heart  will  justify, — 
which  the  law  will  excuse  if  it  does  not  applaud,  and  which  jurors  who  appre- 
ciate the  importance  of  maintaining  the  purity  of  the  marriage  relation  cannot 
fail  to  recognize  and  sustain. 

"  But  neither  is  this  the  just  nor  the  legal  view  of  the  case.  It  is  only  in  the 
heat  of  passion,  in  the  uncontrollable  resentment  occasioned  bv  the  discovery  of 
his  domestic  dishonor,  or  by  surprising  the  parties  in  the  actual  comnussion  of 
the  adulterous  intercourse,  or  under  intluence  of  a  state  of  circumstances  almost 
o(luivalent  to  personal  observation  of  such  a  transaction,  that  the  husband  is 
ptrnutted  to  be  the  summary  avenger  of  his  domestic  wrongs.  He  is  not  at 
liberty,  after  his  passions  have  had  time  to  cool,  and  the  tempest  of  excited  feel- 
hig  to  subside,  to  stalk  abroad,  seek  out  the  unconscious  and  unprepared  victim 
of  his  resentment,  and  without  tlie  intervention  of  the  forms  of  law,  or  the 
judgment  of  his  peers,  become  the  self-appointed  avenger  of  his  own  wrongs, 
or  vindicator  of  the  violated  majesty  of  the  law.  The  law  must  be  left  to  main- 
tain its  own  dignity  and  to  enforce  its  own  decrees  through  the  constituted  tri- 
bunals of  its  own  creation,  and  has  not  in  any  just  or  legal  sense  commissioned 
the  defendant  to  the  discharge  of  this  high  office. 

"  In  this  case  the  adulterer,  if  adulterer  he  was,  was  not  detected  by  the  husband 
in  the  actual  connnission  of  his  crime,  nor  under  circumstances  from  which  its 
then  very  recent  perpetration,  so  far  as  the  evidence  discloses,  could  have  been 
fairly  inferred.  The  period  of  adultery,  If  adultery  there  was,  was  long  since 
passed.  The  knowledge  or  information  of  its  commission  had  been  communi- 
cated to  the  prisoner  several  days,  at  least  two  or  three  days  before,  and  a  suffi- 
cient time,  in  the  judgment  of  tlie  law,  had  elapsed  for  the  passions  to  cool,  and 
for  reason  so  far  to  regain  her  undisputed  or  real  sway  as  to  forbid  individual 
vengeance,  and  to  prououucc  the  act  of  premeditated  killing,  if  such  it  was,  the 
crime  of  murder. 

"True  it  is,  as  I  have  already  informed  you,  if,  notwithstanding  this  lapse  of 
time,  the  crushing  weight  of  this  domestic  tragedy  had  driven  the  prisoner's 
mind  to  absolute  distraction,  and  detliroued  the  reason  of  the  husband,  he  is  per- 


NoU's. 


mltfc'd  to  lliul  iiniiiuiiityfri)iii  imnislniu'iil  in  tlic  iiu-iilal  aliiMialloii  witli  wliich  he 
was  tliws  ovcrwiii'liiu'd;  but  if  lio  liad  llio  |)()ssi'.ssi(>u  of  iiis  si-iiscs,  tin;  oxitcIm' 
of  liis  reason,  aiul  was  in  t*  sitnation  to  appreciate  tlie  (piality  of  his  acts,  lie 
stands  responsil)le  l)efore  Jiie  law  for  liavini^  nnlawfully  tal<en  tlie  life  of  his  fd- 
low-nian,  and  must  al»ide  the  stern  vi;;or  with  which  she  maintains  her  violatid 
majesty.  Neither,  therefore,  in  tlie  allei;ed  adnltery,  for  which  the  deceased  was 
slain,  because  the  adultery  has  not  l)een  proved,  and  would  not  have  betni  u  »le- 
fcnce  if  it  had  l)eeu,  considerini;  the  period  of  its  allej^ed  commission,  nor  in  the 
crushinj;  and  overwhelmiu;^  wei,u;lit  with  which  theeviilenco  of  his  domestic  dis- 
honor and  of  the  decciksed,  as  its  aliened  autlior,  was  brouuhthome  to  the  knowl- 
ed;;e  of  the  defendant,  can  the  prisoner  lind  exemption  from  the  conHcquenccs 
of  the  homicide.  He  must  lind  it,  if  he  lind  it  at  all,  in  that  dethronement  ol 
reason,  if  lu  actually  occurred,  which  exempts  every  person,  however  great 
would  otherwise  bo  his  crime,  and  however  awful  would  otherwise  be  the  ul- 
tcndino;  circumstances,  from  conduct  to  which  his  minil  never  gave  a  willinj^ 
and  intelliiient  consent. 

"  But  there  is  another  aspect  of  tlie  case,  to  which  I  feel  bound  to  call  your  at- 
tention, because  tliere  is  a  i)ossible  view  of  the  evidence  which  you  may  feel  at 
liberty  to  take  which  will  reduce  the  nrade  of  this  offence  from  murder  in  the 
llrst  degree  to  murder  in  the  second  degree  or  manslaughter  In  one  of  its 
various  degrees,  and  more  particularly  to  manslaughter  in  the  third  degree,  the 
punishment  of  which  crime  is  iiuprisoniuent  iu  the  State  prison  for  the  terms 
which  I  have  be^re  mentioned. 

"  I  have  alreaily  stated  to  you  that  murder  in  the  second  degree  embraced  all 
other  kinds  of  murder  than  murder  in  the  lirst  degree,  and  though  not  well  de- 
tined  in  the  statute,  might  fairly  be  sui)posed  to  include  that  kind  of  murder 
which  was  not  cliaracterized  by  that  degree  of  enormity,  or  of  i)remeditation, 
which  might  be  supposed  to  constitute  murder  in  the  first  degree,  and  to  be  justly 
punishable  by  the  forfeiture  of  life. 

"  If,  therefore,  your  view  of  the  circumstances  of  this  case  shall  enable  you  to 
take  this  more  lenient  view  of  the  conduct  of  the  prisoner,  to  which  I  have  just 
I'eferred,  you  may  tliid  him  guilty  of  muriler  in  the  second  degree. 

•'Again,  if  your  view  of  the  evidence,  acting  under  the  responsibility  of  your 
oaths,  sliall  enalile  you  to  take  a  still  inoi'e  lenient  view  of  tlie  evidence,  and  ti) 
conclude  that  the  intent  of  the  prisoner  was  not  to  produce  death,  and  that  tlic 
liomicide  was  committed,  not  with  premeditated  tlesign,  but  in  the  lieat  of  pas- 
sion, by  the  use  of  a  deadly  weapon,  then  it  will  be  your  duty  to  convict  tiie 
prisoner  of  manslaughter  iu  the  third  degree,  the  punishment  of  which  crime  is 
imprisonment  in  the  State  prison  for  a  terra  of  not  less  tlian  one  nor  more  than 
four  years. 

"As  heretofore  stated,  the  radical  distinction  between  murder  and  manslaughter 
is  tlie  presence  or  absence  of  a  design,  or  premeditated  design,  to  eff»'ct  tlit' 
death  of  the  person  killed.  If  you  have  rational  doubt  on  that  point,  arising  un- 
der the  testimony,  and  justly  founded  thereon,  it  is  the  benevolent  intention  and 
the  positive  injunction  of  the  law,  that  you  should  allow  it  to  operate  in  favor  of 
the  prisoner.  And  if,  in  the  dispassionate  judgment  which  you  shall  give  the  case, 
you  shall  come  to  the  conclusion  that  though  you  believe  the  prisoner  to  have 
been  driven  to  the  borders  of  distraction  yet  not  actually  to  liave  euteredits  do- 


MIJUAL    INSANITY. 


281 


Colo's  Case  —  Contimu'il. 


th  which  he 
ln!  cxcrcisf 
lis  acts,  he 
'  of  his  fel- 
ler viol.ited 
'cuiisod  was 
been  a  de- 
,  nor  iu  tlic 
nicstic  dis- 
the  kiiowl- 
nsoquciieo 
)iieiiieiit  of 
over  fj;ri';it, 
ijo  tiio  at- 
a  williiij; 

vll  yourat- 
nay  feci  at 
rder  iu  tlic 
Jiie  of  its 
licjjfrcc,  till' 
■  the  terms 

braced  all 
t  well  do- 
of  murder 
leditation, 
0  be  justly 

)le  you  to 
have  just 

;y  of  your 
e,  and  to 
d  that  the 
it  of  pas- 
uvict  tiie 
criuie  is 
aore  thau 

slaughter 
ft'ect  tlie 
isiug  uii- 
itiouand 

favor  ol 
the  case, 

to  have 
d  its  do- 


main, and  therefore  feel  bound  to  hold  him  resi)ousil)l(!  for  a  violation  of  the 
law,  and  yet  believe  him  to  have  been  urged  to  tlie  terrible  catastrophe  with 
which  this  domestic  drama  has  terminated,  by  the  crusldng  conviction  of  his 
(lumestic  disliouor,  and  with  a  force  and  precipitation  and  pressure,  wliich  de- 
|)rived  his  act  of  iiomicide  of  that  premeditation  whicli  stamps  it  witli  tlie  legal 
ingredient  of  malice  aforethouglit,  you  are  at  liberty  under  such  circumstances 
to  negative  the  element  of  premeditated  design;  and  lluding  tlie  act  committed 
in  tlie  sudden  heat  of  passion,  and  iiy  the  use  of  a  dangerous  weapon,  to  declare 
the  legal  consequences  of  such  killiug,  by  prouounciug  him  guilty  of  manslaugh- 
ter In  the  third  degree. 

"The  responsibility  of  determining  the  facts  by  which  the  grade  of  the  olfence 
is  to  be  measured,  Is  of  course,  with  you  and  not  witli  me,  and  you  must  dcter- 
iiiine  it  under  asoleinn  sense  of  the  important  conseciueiices  which  rest  uponyour 
decision.  It  has  been  suggested  that  a  verdict  of  tiiis  cliaracter,  tiiiding  the  de- 
fendant guilty  of  an  offence  of  a  less  grade  tlian  that  charged  In  the  Indictment, 
will  not  be  acceptable  to  the  prisoner,  who  desires  a  full  ac(|ulttal,  or  a  convic- 
tion of  murder  in  the  first  degree. 

"Allow  me  to  say,  gentlemen,  the  preferences  or  wishes  of  the  prisoner,  on  this 
point,  should  not,  in  my  opinion,  affect  your  action  one  way  or  the  other.  You 
iiave  a  higher  duty  to  discharge  thaneitlier  to  please  or  to  offend  the  prisoner  or 
the  People.  You  are  to  find  a  true  verdict  according  to  tlie  facts  estai)lishe(l  be- 
fore you.  You  are  to  declare  it  witliout  fear  or  favor,  and  without  reference  to 
the  wishes  of  eiliier  side. 

"  You  are  not  to  be  precipitated  into  a  verdict  of  absolute  acquittal,  because  a 
conviction  of  murder  in  the  first  degree  would  be  too  severe  to  correspond  witii 
your  views  of  duty.  You  are  not  to  be  withheld  from  a  verdict  of  partial  con- 
viction. If  a  verdict  of  greater  or  less  severity  shall  not  faithfully'  record  your 
conclusions  from  the  evidence.  Y'ou  must  find  a  verdict  founded  entirely  upon 
your  own  view  of  the  testimony  as  It  has  engraven  itself  upon  your  minds.  You 
should  also  bo  careful  not  to  be  carried  away  by  feelings  of  sympathy  beyond  the 
boundaries  of  duty.  Y'ou  may  justly  and  properly  eutertain  a  feeling  of  respect 
and  gratitude  to  General  Cole  for  his  gallant  services  during  the  war;  but  when 
he  appears  Iu  this  tribunal,  ami  is  summoned  to  Its  bar  to  answer  for  crime,  he  Is 
like  all  other  men  similarly  situated,  to  be  tried  by  the  law  and  the  evidence. 
Neither  gratitude  for  his  military  services,  nor  sympathy  for  his  unmerited  suf- 
ferings, nor  regret  for  his  domestic  calamities,  can  annul  or  repair  the  stern 
requirements  of  duty. 

"Nor,  on  the  otlu-r  hand,  must  you  be  betrayed  by  abhorrence  for  a  homicide, 
appearing,  if  you  so  regard  it  on  the  first  look  at  the  transaction,  to  be  svitliuut 
justlflcation  or  excuse.  Into  a  rash  and  precipitate  verdict  of  conviction.  The 
case  lias  various  aspects,  all  of  which  you  must  consider,  and  no  more  conscien- 
tious or  imperative  duty  is  demanded  of  a  jury  than  to  keep  its  judgment  in 
suspense  till  every  fact  is  carefully  examined,  and  its  just  weight  and  bearing 
faithfully  determined. 

"  Y'ou  And  iu  the  prisoner,  perhaps,  an  individual  laboring  under  melancholy, 
more  or  less,  whether  or  not  it  has  attained  that  intense  tind  aggravated  charac- 
ter expressed  by  the  melancholia  of  the  medical  profession.  You  find  him,  it 
may  be,  materially  changed  iu  his  disposition  aud  temperament,  his  tastes  and 


2,Sl' 


THE    LKCJAL   TEST    OF    INSANITY. 


Notes. 


his  habits,  from  wliat  they  won' at  a  foriiuT  period  of  his  life.  Life,  It  may  h' , 
lias  lost  for  him  many  of  its  charms,  and  liodily  ailments  and  Injuries  have  not 
only  subjected  him  to  much  palii  and  suffering,  but  liave  so  destroyetl  or  Im- 
paired Ills  health  and  his  constitution  as  to  render  life  a,  burden  rather  than  a 
blessiu}?. 

"All  these  things  under  prop<!r  circumstances,  and  on  a  proper  occasion,  may 
make  him  a  lit  sul)ject  for  your  consideration  and  sympathies.  But  this  is  not 
the  period  wiien  you  are  to  seek  their  indulijence,  or  at  least  if  they  operate  so 
far  as  to  distr.ict  your  mind  from  tlie  performance  of  a  sterner  and  hlfrher  duty. 
Not,  indeed,  that  you  are  to  forjiet  you  are  human,  or  that  you  can  be  expected 
to  divest  yourself  of  those  feeliniis  and  .sensibilities  which  are  implanted  In  every 
manly  and  fienerous  heart.  But  that  you  are  to  be  careful  not  to  be  led  away  l)y 
them  from  the  performance  of  duty  or  into  forfj;etfidness  of  the  stern  obll]L;ations 
whi(,'h  rest  upon  you  as  Impartial  arbiters  of  the  prisoner's  destiny. 

"  Tnie,  Indeed,  if  under  the  infhu'uce  of  tlie  evidence  you  conclude  that  the 
prisoner's  reason  has  been  detlironed,  and  that  lie  was  not  at  the  time  of  this 
transaction  an  intelligent  aiieiit,  havintj  the  power  of  mental  discrimination  Ix- 
twcen  rijrht  and  wroiii;  in  rejiard  to  the  particular  transaction  wliich  you  are 
undertakin<i  to  invest iyiate,  he  niiist  stand  ac<piitted  before  you  upon  the  jiround 
of  criminal  irresponsii)ility.  Hut  if  he  had  this  power  of  mental  discrimination, 
and  could  distiniiuisii  in  rei!;ard  to  the  moral  ([ualitiesof  his  conduct,  then,  iiot- 
withstandiiifj;  your  pity  for  the  man,  and  your  sympathy  for  the  sufferer,  you 
must  condemn  the  criminal,  and  especially  you  must  not  be  led  aside  from  the  path 
of  duty  by  a  recollection  of  tlie  severe  rupture  which  has  taken  place  in  his  do- 
mestic relations,  unless  the  deceased  is  proved  to  have  been  connected  there- 
with, and  in  .some  sense  the  author  thereof,  so  as  justly  to  call  down  upon  himself 
within  the  limits  of  the  law,  the  just  ven^;eance  of  Injured  husband.  These  in- 
juries, at  least  as  intelligence  of  them  was  communicated  to  him,  were  of  the  most 
heartreudini;  character,  and  must  of  necessity,  excite  the  ardent  symi)athy  of  every 
feeling  person.  It  may  be  ditllcult,  perhaps  iini)ossible,  wholly  to  divest  our- 
selves of  these  feelings,  but  we  shall  fail  to  meet  the  stern  and  inexorable  neces- 
sities of  tills  hour  if  we  allow  tliem  to  turn  us  aside  from  the  path  which  the  law 
has  appointed  for  us  to  tread.  That  path  is  the  path  of  duty;  that  duty  is  to  tliul 
a  verdict  accorling  to  the  law  and  the  evidence,  and  whether  it  enjoins  upon 
you  the  agreeabh;  task  of  pronouncing  a  verdict  of  ac(iuittal  because  the  evi- 
dence fails  to  satisfy  you  beyond  a  re.ison.ible  doubt  of  the  guilt  of  the  prisoner, 
or  of  his  responsibility  for  crime,  or  the  painful  one  of  pronouncing  a  verdict  of 
conviction,  because  the  evidence  satisfies  you  beyond  a  reasonable  doubt  of  the 
prisoner's  guilt  and  responsibility  for  crime,  you  will,  I  doubt  not,  accpiit  your- 
selves like  men,  and  without  fear  or  favor,  without  partiality  or  prejudice,  dis- 
charge the  solemn  and  responsible  trust  which  the  law  has  imposed  upon  you  on 
this  occasion. 

"  In  this  confidence,  I  commit  this  case  into  your  hands  for  your  final  delibera- 
tion and  verdict. 

"  In  relation  to  the  specific  points  submitted  by  the  counsel  for  the  defence,  and 
asked  to  be  made  part  of  this  charge,  I  charge  the  law  upon  the  subject  of  in- 
sanity to  be  in  the  authorities  I  read  to  you. 

Mr.  Brady.  —  "  With  reference  to  what  has  been  said  by  the  court  upon  the 


MOKAL    INSANITY. 


283 


Cole's  Ciise  —  Contlmii'd. 


(luostioii  of  flndinu;  the  accuspd  .guilty  of  mansliiii'ilitcr,  I  desire  to  say  in  hclialf 
nf  tlie  prlsoiKT,  tiiat,  In  tlio  judgment  of  liis  (•ouusci,  tiiiTo  Is  no  rational  or 
|M>ssil)li!  view  by  wliich  tlio  offonco  can  be  demonstrated  nianslan^jliter,  and  that 
the  prisoner  declines  to  acce|)t  the  offiT  of  that  sympathy  tliat  wonld  indnce  a 
verdict  for  tliat  offence,  and  wonld  rather  die  than  i)e  sent  to  State  prison." 

Tlic  jnry  retired,  and  snbsc(piently  came  Into  court,  whon  the  foreman  stated 
tliiy  had  not  a'^reed  npon  u  verdict, 

lloiiKnooM,  J.  —  "I  have  a  note  from  yon  In  which  you  request  to  have  further 
information  with  reference  to  that  portion  of  the  charge  which  relates  to  Insane 
impulse  and  unt^overnable  frenzy  ami  the  rules  of  law  soveriiin5»  the  same.  I 
(lesiLjned  to  express  niyself  wit  sudlcient  fuliness,  and  witli  all  tlie  clearness  and 
perspicuity  with  which  I  was  able  to  do  upon  those  subjects.  I  will  restate,  or 
fiirtlier  comment  on  these  points,  that  tlie  foundation  of  all  responsibility  for 
crime  is  sanity,  or  soundness  of  mind,  that  Is  a  sane  mind  in  the  sense  in  which 
I  explained  it  to  you  in  the  original  charge  —  the  possession  of  reason,  ability  to 
(iiscriminate  between  right  and  wrong  in  regard  to  the  particular  transadion,  a 
degree  of  consciousness  and  Intelligence  that  enables  a  party  to  appreciate  the 
i|uality  and  nature  of  the  act  in  which  he  is  engaged;  to  be  aware  that  it  was 
wrong;  if  it  was  wrong,  i  crime;  that  he  was  connnitting  an  offence  against  the 
laws  of  his  country.  If  his  nnnd  was  in  such  u  sittuitlon,  he  was,  in  my  opiiuon, 
and  as  defined  in  the  cases  to  which  I  have  referred,  sul)ject  to  those  laws,  re- 
sponsible for  their  violation,  and  to  be  punished  if  he  did  violate  them.  That  is 
sui)stantially  the  test  in  regard  to  both  those  species  of  offenc»'s  to  which  your 
attention  has  been  called.  An  insane  impulse,  leaving  the  mind  incapable  of 
exertion,  holding  the  individual  incapable  of  exercising  his  mind,  so  far  as  I  have 
dellned  it  to  you,  exempts  him  from  responsibility,  and  if  under  the  influence  of 
siicli  a  want  of  mind,  the  prisoner  commits  the  act,  whether  you  call  it  an  insane 
impulse  or  anything  else,  it  exempts  him  from  responsibility.  Mere  impulse, 
whetlier  you  call  it  irresponsible  impulse  or  not,  does  not  excuse,  if  it  be  the 
impulse  of  excited  passion,  arising  from  revenge,  from  resentment,  from  in- 
tention to  do  an  act  which  is  wrong  or  a  crime,  and  the  prisoner  is  aware  of  it, 
whether  he  is  impelled  to  it  by  peculiarities  of  temi)erament,  by  a  nervous 
disposition,  by  excited  feeling,  or  anything  of  tliat  sort,  will  not  excuse  him 
from  responsibility. 

"  If  there  is  the  consciousness  that  he  is  committing  a  crime  against  the  laws  of 
his  country,  there  is,  in  my  opinion,  no  impulse  that  can  excuse  !um  from  re- 
sponsibility. But  if  this  impulse  arises  from  a  defect  of  reason  s  >  Uiat  it  can- 
not control  the  exercise  of  his  mental  powers,  if  he  is  bereft  of  that  power  in 
the  sense  which  I  have  alluded  to,  and  this  crime  is  committed  in  such  a  condi- 
tion and  without  the  ability  to  control  himself  from  such  a  cause,  he  is  in  such  u 
condition  as  excuses  him  from  responsibility. 

"The  question,  after  all,  is  whether  he  has  his  mental  powers  and  the  ability 
to  exercise  tliem  to  such  a  degree  as  makes  him  conscious,  at  the  time,  of  the 
nature  of  the  act  in  which  he  was  engaged.  He  must  not  give  way  to  unholy 
passions,  to  excited  feelings,  to  a  disposition  for  revenge  or  resentment,  because 
it  is  just  these  feelings  that  the  law  punishes  and  makes  him  responsible  for 
them.  Men  must  curb  and  restrain  their  passions.  But  if  he  is  bereft  of  the 
mental  power  to  reason  upon  the  subject  anil  understand  the  nature  of  the  act  in 


2»4 


TIIK    LKdAL   TEST   OF    INSANITY. 


Noti's. 


which  he  !><  onsiiiatod,  then  tlu'  liiw  rollovos  him  from  responsibility.  If  he  iict-i 
frmii  iiiiiiovcnial)!!!  fn-iizy,  it  must  Ix-  the  fri'iizy  of  madiu'ss  or  mi'iital  iilU'iisitioii, 
and  not  of  oxdtod  and  Inflamctl  passions.  If  a  man  has  NUtllck-nt  conHclousncss 
of  tlic  nature  of  the  act  in  wliich  lie  is  enijaiied  to  Ivnow  tliat  he  Is  dolnjj  wronu, 
and  violating;  tlu;  laws  of  his  country,  and  yet  {jives  way  to  the  feeling  '  -esent- 
ment  or  revenue,  and  {iratilles  It  at  the  expense  of  his  consciousness  e  i> 

connnittin<;  a  crime,  wliether  tliat  frenzy  Is  of  tlie  hijiliest  and  almost  urespon- 
siblo  dejiree  or  not,  he  must  be  held  responsil)le.  Hut  if  tliis  Is  tiio  frenzy  of 
mental  alienation,  so  tliat  he  cannot  control  the  posvers  of  his  ndml,  and  Is  in- 
capable of  ai)preciatinn  the  (luallty  of  his  act,  or  to  unilerstand  that  he  Is  vlolat- 
ini;  the  laws  of  his  country  In  doing  a  thing  that  Is  morally  wrung,  then  he  l> 
exempt  from  responsibility. 

"  It  Is  very  dilllenlt  to  define  these  matters  with  absolute  precision.  I  em 
only  refer  yon  to  the  general  rule  laid  down  In  tlie  ca.  ■  k  i  laid  l)efore  you  in  my 
charge  to  you,  and  I  nwd  from  them  Inlentionidly  for  the  express  purpose  of 
defining  the  rules  by  wliich  you  arc  to  be  guided,  and  to  explain  the  circum- 
stances which  exempt  a  person  charged  with  crime  from  the  responsibility  of 
that  crime. 

"  I  do  not  know  that  I  can  do  anything  which  will  inform  you  In  any  greater 
degree  of  wlial  constitutes  that  degree  of  Insanity  or  ineiital  alienation  wliieli 
excuses  a  person  from  criminal  responsibility.  Tlie  party  is  never  res  sUtW 
for  defect  of  reason;  it  is  a  providential  ilispensatlon  wliich  relieves  voin 

the  imputation  of  crime,  because  it  Is  not  the  act  of  a  free,  intelligent,  ou- 

sclous  mind.  I  tliink  tliat  every  one  Is  bound  to  control  his  passions  and  feel- 
ings. If  he  has  the  power  of  thouglit  ami  ability  to  reason,  he  must  l)e  helil 
responsible  to  the  laws  of  his  country,  and  not  give  way  to  unholy  passions,  or 
excited  feelings,  or  wicked  resentments,  or  revenge.  Ou  these  questions  you 
must  be  satislied." 

Mr.  Brady.  —  "  If  there  bo  any  doubt,  the  benefit  of  It  goes  to  the  prisoner." 

IIocKHooM,  J.  —  "That  doubt  goes  to  the  benefit  of  the  prisoner,  if  it  be 
that  kind  of  rational  doubt,  upon  tlie  evidence,  or  doubt  which  commends  itself 
to  tlie  rational  mind,  applying  itself  to  tlie  facts  of  the  case.  It  is  not  the  men 
possibility  of  innocence  that  should  justify  you  in  finding  a  verdict  of  acquittal. 
The  question  is  whether  on  your  considering  the  case  as  rational  men,  you  be- 
lieve beyond  a  rational  doubt,  a  fair  reasonable  doubt,  commending  itself  to  your 
understanding,  that  the  party  Is  guilty  and  criminally  responsible  under  the  rules 
I  have  laid  down,  you  must  find  him  guilty.  If  you  do  not  thus  believe,  if  you 
have  a  rational  doubt  upon  this  subject,  as  thus  understood  and  interpreted,  you 
are  to  give  the  prisoner  tlie  beueflt  of  that  doubt,  and  render  a  verdict  of  ac- 
quittal." 

"The  jury  again  retired.  Subsequently  they  came  into  court,  and  the  fore- 
man stated  they  found  the  prisoner  to  have  been  sane  at  the  moment  before  and 
the  moment  after  the  killing;  but  they  were  in  doubt  as  to  his  sauity  ou  the  In- 
stant of  the  homicide. 

"The  judge  charged  the  jury  that  they  must  give  the  prisoner  the  benefit  of 
the  doubt,  If  they  had  such  rational  doubt  founded  upon  the  evidence,  and  could 
believe  such  doubt  to  be  well  founded  upon  such  a  condition  of  the  case  as  was 
presented  by  this  statement  of  the  jury." 

The  jury  returned  n  verdict  nf  not  guilty. 


('0| 

1). 

Ne| 


MOrtAL   INSANITY. 


285 


Miicfarluiurs  Ciihc. 


If  lio  (lets 
I  iiliciiiitioii, 
nsclousiicss 
)iiiS  wroiii,', 

j;    f  -t'Sfiit- 

t  irri'sj)oii- 

0  frenzy  of 
luiil  Is  iii- 

!(.'  is  violat- 
tlion  he  i> 

ion.  I  can 
you  hi  my 
|)iiri)ose  of 
le  circuin- 
iisibility  of 

my  greater 
tion  wliicli 
'es       sil)!!' 

1  vom 
;,  oii- 

aiul  feel- 
st  be  lu'ld 
issions,  or 
ttious  yo'i 

)risoner." 

,  if  it  be 
mis  itself 

the  men 
acquittal. 

,  you  be- 
If  to  your 

the  rules 
ire,  if  you 
eted, you 
of  ac- 

;he  foro- 
;fore  and 
1  tlie  in- 

enefit  of 
1(1  could 
e  as  was 


In  ^iicfiirlawVii  C'lsf,,^  the  prisoner,  nuniel  Maofarland,  was  trliil  before  Re- 
corder llACKKir,  of  New  Yorli,  for  inunl(;r  lu  the  first  degree  In  sliootlni;  AlluTf 
I).  Richardson  on  November  25,  18(!!t,  in  the  odlce  of  the  New  York  Tribune,  in 
New  York  City,     Tlie  judge  charged  llie  jury  as  ftdlows:  — 

"  Wldl(!  some  of  you,  perhaps  most  of  you,  sat  in  court  as  individuals,  and  not 
yet  jurors,  Daniel  Maefarland  was  arraigned  at  tlds  l)ar.  Tlio  Indict luent, 
stripped  of  its  technical  veri)lage,  charged  tliat  he  killed  Albert  I).  Klciiardson, 
intending  to  kill  1dm.  Included  in  tlie  direct  eliargt;  wasan  implied  one  that  be- 
loiiu's  to  ail  cases  of  crime,  tliat  the  iitenlion  was  of  a  man  in  a  state  of  saidty. 
I  >liall  for  l)revity,  use  the  phra.sc  si.ito  of  sanity,'  or  *  state  of  insanity  '  con- 
tinuously througli  this  cliarire.  1  do  so  iieeause  it  Is  tlie  statutory  phrase  —  'no 
act  iloiie  by  a  person  In  a  state  of  insanity  can  Ix!  punished  as  an  offence.' 

"  The  statute  did  not,  and  no  arl)itrary  statute  could,  give  a  definition  of  In- 
■^unity,  which  should  Include  all  cases.  Hence,  It  is  left  to  be  IntiTpretcd  by  the 
courts.  In  using  tiie  plirase  '  state  of  sanity,'  I  am  to  l)e  understood,  tliroughoiit 
as  meaning  tlierel)y  this,  the  .state  in  which  a  man  knows  the  act  lie  is  (!oinmlt- 
thig  to  l)e  unlawful  and  morally  wrong,  and  has  reason  sulllcient  to  apply  such 
knowledge  and  to  t)e  controlled  by  it. 

"  In  using  the  plirase,  'state  of  insanity,'  I  am  to  be  understood  throughout 
as  meaning  thereby  the  state  under  whicli  a  man  is  not  aceoniital)le  for  an  al- 
leired  criminal  act,  because  he  does  not  know  the  act  he  is  committing  to  be  un- 
lawful and  morally  wrong,  and  has  not  reason  sulllcient  to  apply  such  knowledge 
and  to  be  controlled  by  it. 

"The  accused  simply  pleaded  not  guilty  to  the  charge.  That  general  denial 
(as  subsequent  testimony  has  sliown  you)  was  really  a  particular  denial  —  a 
<lcnial  that  he  killed  with  intention  to  kill,  because  he  was  not  legally  capable  of 
forming  an  intention  to  kill,  as  an  intention  wliich  was  recognized  l)y  the  law  to 
be  criminal,  and  thereby  to  render  him  accountable  to  human  law.  Practically 
l)y  the  evidence,  the  physical  act  of  killing  (that  is  so  often  a  sul)ject  of  dispute 
in  homicide  cases),  has  been  admitted.  But  the  mental  character  of  the  act,  the 
legal  accountability  for  the  act,  were  put  In  issue. 

".Vfter  the  arraignment  you  were  then  severally  called  and  sworn.  Whatever 
was  suld  or  done  during  the  progress  of  challenging  or  impanelling,  is  to  be 
disregarded  or  forgotten  Ijy  you  as  In  any  way  bearing  upon  the  present  relations 
lictween  you  and  the  prisoner.  For  instance,  the  circumstances  tliat  the  de- 
fence or  the  prosecution  excluded  jurors,  are  not  in  the  remotest  manner  in  the 
case.  Each  side  had  that  statutory  right  to  exclude.  A  right  given  and  exer- 
cised under  statute  is  never  amenable  to  criticism.  That  process  of  cliallenging 
and  impanelling  was  simply  upon  the  relation  of  eacli  of  you,  as  a  juror  in  tlie 
then  future,  toward  either  the  People  or  prisoner.  When  you  were  sworn,  both 
the  People  and  the  prisoner  stood  practically  contented  to  have  you  hear  evi- 
dence and  all  which  accompanied  the  impanelling  of  tlie  twelve  is  now  as  if  it 
never  had  been  said  or  done. 

"  The  evidence  began  and  it  has  closed.  Your  inquiries  in  considering  the 
whole  evidence  will  naturally  be:  First.  What  are  tlie  theories  of  each  side? 
Second.  What  are  the  rules  of  law  that  connect  themselves  with  those  theories? 


yuiWj. 


>  8  Abb.  Pr.    (N.  8.)  57  (lS70h 


286 


THE    LEGAL   TEST   OF   INSANITY. 


Notes. 


"  The  theory  upon  which  the  defence  seeks  acquittal  is,  substantially,  that 
domestic  troubles  produced  in  the  accused  a  state  of  insanity  towards  Mr.  Rich- 
ardson. The  theory  upon  which  the  prosecution  seeks  conviction  is,  that  thti 
domestic  troubles  originated  and  fostered  such  a  spirit  in  the  accused  towards 
Mr.  Richardson  as  the  law  calls  and  rebukes  as  malice.  Reviewing  the  evidenci- 
upon  the  subject  of  the  state  of  insanity  offered  by  the  defence,  I  can  see  that 
nearly  all  of  it  would  have  been  admissible  had  it  been  offered  by  the  prosecu- 
tion to  prove  malice.  The  defence  justify  the  accused  in  domestically  acting  as 
he  did  toward  his  wife  and  friends. 

"  The  prosecution  takes  some  issue  on  that  justification.  The  defence  claim 
that  a  conspiracy  to  disturb  the  domestic  relations  of  the  accused,  existed  on  the 
part  of  some  of  the  wife's  friends. 

"  But,  gentlemen,  retain  constantly  in  your  minds  that  the  actual  state  of  these 
domestic  relations,  or  the  blame  or  praise  appertaining  to  them,  or  the  fact,  or 
color  of  fact  or  the  falsity,  of  any  such  conspiracy,  are  not  at  all  material  for 
you  to  deflnitelj'  adjudicate. 

"The  question  for  your  consideration  (whether  you  estimate  insanity  or 
malice)  is,  how  did  the  prisoner  believe  about  those  domestic  relations  or  a 
conspiracy,  as  a  belief  to  impress  his  mind  sanely  or  insanely? 

"  The  law  books  are  full  of  cases  of  sane  men  who  have  kil!  id  from  a  malice 
engend'^red  by  utterly  false  conceptions  of  occurrences  or  individuals.  Medical 
records,  and  law  books  contain  many  instances  of  insane  men  killing  under  an 
insanity  which  was  the  result  of  the  most  delusive  or  unsubstantial  or  irrational 
conception  of  human  conduct  or  material  events,  as  well  as  of  men  killing  from 
insanity  occasioned  by  the  operation  of  actual  facts.  The  theory  of  the  defence 
as  to  the  operation  of  tlie  domestic  troubles  upon  the  mind  of  the  accused,  was 
undoubtedly  fully  presented  by  the  long  question  put  by  the  counsel  for  the  dt- 
fence  to  Drs.  Vance  and  Hammond,  and  which  you  can  doubtless  substantially 
recall.  The  *'>eory  of  the  prosecution  mainly  as  to  the  malice  and  partially  as  to 
the  sanity,  was  substantially  presented  by  the  compact  question  put  to  the  same 
witness  on  tlie  cross-examination,  and  whicJi  you  may  recall. 

"  1  do  not  intend  to  comment  upon  tiie  evidence.  I  do  not  think  I  ought  to. 
In  tlie  first  place,  it  has  been  summed  up  in  parts  by  tlie  speeches  on  either  sidi' 
during  evidence,  and  as  a  wiiole  in  the  closing  arguments.  In  the  next  place,  it 
is  impossible  for  me  to  take  up  the  ?vidciice,  without  possibly  impressing  upon 
you  by  my  arrangeinoiit  of  it,  or  emohasis  in  repeating  it,  the  very  decided  con- 
viction upon  the  merits  of  this  prosecution,  which  I  have  formed.  I  shall  simply 
group  it  as  appertainhig  to  the  question  of  malice  or  insanity,  or  to  the  otlur 
legal  questions,  and  leave  the  details  to  your  memory.  The  legal  necessity  for  a 
manslayer  to  have  been  in  a  state  of  sanity  when  he  slew,  before  he  can  be  held 
accountable  to  human  law,  is  deeply  rooted  in  jurisprudence. 

•'.\s  far  back  as  the  civiliansj  the  maxim  was  ^  furiosus,  furioso,  solum  puniter^ — 
a  mad  man's  madness  is  his  only  punishment.  In  the  early  history  of  the  com- 
mon law,  one  of  the  essentials  to  the  defiu'tion  of  murder  (a  definition  which  is 
its  universal  test  in  jurisprudence),  was  'sound  memory  and  discretion.' 
'  Murder  is  where  a  person  of  sound  memory  and  discretion  unlawfully  kills 
any  reasonable  creature,  being  in  the  peac  ;  of  the  king,  with  malice  prepense  or 
aforethought,  either  express  or  Implied.'    The  converse  phrase  of  our  statute 


MORAL    INSANITY. 


287 


Macfarland's  Case  —  Continued. 


itially,  that 
s  Mr.  Ricli- 
is,  that  thf 
led  towards 
he  evidence 
an  see  that 
le  prosecu- 
y  acticg  as 

'ence  claim 
sted  on  the 

ite  of  these 
he  fact,  or 
laterial  for 

nsanity  or 
itions  or  a 

m  a  malice 
.  Medical 
',  under  an 
'  irrational 
lling  from 
le  defence 
used,  was 
ar  the  (h- 
•stantially 
illy  as  to 
the  same 

>ught  to. 
ther  side 
place,  it 
ng  upon 
ded  con- 
11  simply 
he  other 
ity  for  ;i 
be  held 

tniter'— 
le  com- 
kvhich  is 

retion.' 
lly  kilU 
icnse  or 

statute 


'state  of  insanity'  is  convertible  with  that  other  phrase,  'sound  mcmorj-  and 
iliscretion'  in  the  conmon  law.  As  early  as  18IG,  in  this  court,' it  was  said: 
•  An  insane  person  is  considered  in  law  incapable  of  committing  a  crime ;  but  it 
Is  not  every  degree  of  insanity  which  abridges  the  responsibility  attached  to  the 
commission  of  crime.  In  that  species  of  insanity  where  the  prisoner  has  lucid 
intervals;  if,  during  those  Intervals,  and  when  capable  of  distinguishing  good 
from  evil,  he  perpetrates  an  offence,  he  is  responsible;  and  the  principle  subject 
of  inquiry  is  whether  the  prisoner  at  the  time  he  committed  the  offence  had  suf- 
ficient capacity  to  discern  good  from  evil;  and  should  the  jury  believe  he  had 
such  capacity,  it  will  be  their  duty  to  find  him  guilty.'  The  utter  responsibility 
to  human  law  of  the  mad  man  (or  the  jnan  who  lacks  a  sound  memory  or  discre- 
tion, and)  who  takes  human  life  has  never  been  doubted.  The  difllculty  has  been 
to  decide  upon  the  degree  of  the  madness,  or  the  quality  of  the  insanity  which 
shall  claim  irresponsibility.  It  may  be  interesting  to  the  legal  student  to  follow 
the  discussions  of  legal  tribunals  upon  this  subject  and,  indeed,  to  mark  their 
-■  i,.;uations  of  doctrine.  But  the  law  regulating  to-day  the  uujuiry  of  a  jury 
upon  ihe  subject  is  not  complex.  If  you  will  keep  in  mind  what  I  have  held  to 
bo  the  meaning  of  the  phrases,  '  state  of  sanity '  or  '  insanity  '  in  the  statute,  I 
will  now  refer  to  the  propositions  of  the  counsel  for  the  defence  on  that  subject. 
"  I  substantially  charge  every  proposition  of  the  counsel  for  the  defence  upon 
the  subject  of  sanity.  There  is  possibly  no  difference  of  legal  opinion  between  tlu 
counsel  for  the  defence  and  the  district  attorney  regarding  the  law  constituting 
state  of  sanity  or  insanity.  The  difference  between  them  is  one  of  applicability 
of  the  legal  rule  to  the  particular  circumstances  of  the  case.  Those  differences 
have  been  reasoned  out  or  commented  upon  in  the  summing-up,  l)ut  it  is  due  to 
the  counsel  for  the  defence  that  I  should  re-read  them,  with  my  comments:  — 

"  •  Even  if  the  evidence  as  to  the  insanity  of  the  defendant  should  leave  it  in  doubt  as  to 
whether  lie  was  insane  at  the  time  of  tlie  counnlssion  of  tlie  alleged  act,  if  it  also  leaves  in 
doubt  his  sanity  at  that  time  he  is  entitled  to  an  acquittal.' 

"  Which  I  charge. 

"  'Though  the  evidence  may  leave  the  defence  of  insanity  in  doubt,  if  upon  the  whole 
evidence  in  the  case,  the  jury  entertain  a  reasonable  doubt  as  to  the  perfect  sanity  of  the 
defendant  at  the  time  of  the  commission  of  the  alleged  act,  they  are  bound  to  acquit  him.' 

"Which  I  charge. 

"  'If  the  jury  cannot  say  beyond  a  doubt  that  the  defendant  was  sane  at  the  time  of  the 
comniissinn  of  the  alleged  act,  or  cannot  say  whether  at  that  time  he  was  saue  or  Insane, 
they  are  bound  to  ac({uit  him.' 

"  Which  I  charge. 

"  '  If  the  jury  entertain  a  reasonable  doubt  upon  all  the  evidence  in  the  case,  as  to  the 
guilt  or  innocence  of  the  defendant  of  the  crime  alleged  against  him,  he  is  entitled  to  un 
acquittal.' 

"Which  I  charge. 

"  '  If  at  the  time  the  prisoner  committed  the  act  charged  upon  him  (if  he  did  commit  it) , 
the  deceased  suddenly  presented  himself  to  him,  without  any  anticipation  or  expectation 
on  his  part  that  he  would  then  and  there  see  the  deceased,  and  the  prisoner  was,  from  an 
association  of  the  deceased  with  his  real  or  fancied  domestic  troubles,  thrown  into  a  state 
of  mind  in  which  he  was  deprived  of  his  memory  and  understanding  so  as  to  be  unaware  of 

1  Clark's  Case,  1  City  Hall  Reo.  176. 


288 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


the  naturp,  character  and  consequences  of  the  act  he  committed,  or  to  be  unable  to  discrim- 
iiiatu  between  right  ami  wrong  in  reference  to  that  particular  act,  at  the  very  time  of  its 
commission,  he  is  entitled  to  an  acquittal.' 

"  Denied,  for  the  re.tson  thnt  there  is  no  evidence  upon  the  subject  of  sudden 
or  expected  presentation  to  justify  the  liypothesis. 

"  '  If,  at  the  time  the  prisoner  committed  the  act  charged  upon  him  (if  he  did  commit  it), 
the  deceased  suddenly  presented  himself  to  him,  without  any  antic'"ation  or  expecta- 
tion on  his  iiart,  that  he  would  then  and  there  see  the  deceased,  and  the  prisoner  was,  from 
an  association  of  the  deceased  with  his  real  or  fancied  domestic  troubles  tlirown  Into  a 
stall!  of  excitement  in  which  he  was  divested  of  his  reason  and  judgment,  and  was  deprived 
of  his  mental  power  to  an  extent  placing  him  beyond  the  range  of  self-control  in  reference 
to  the  particular  act  charged  against  him,  so  that  he  could  not  possibly  restiain  himself 
from  the  commission  of  the  act  alleged  against  him,  at  the  very  time  of  its  commission, 
he  is  entitled  to  an  aciiuittal.' 

"  Denied  for  lil\e  reason. 

"  'Although  .sanity  is  assumed  to  be  the  normal  state  of  the  human  mind,  when  insanity  is 
once  proved  to  exist,  it  is  presumed  to  exist  until  the  presumption  is  overcome  by  contrary 
or  repelling  evidence.' 

"  Refused,  for  tlie  reason  that  the  insanity  for  your  inquiry  relates  exclusively 
to  the  time  of  the  act. 

"  'If  partial  insanity,  simply,  is  shown,  as  the  human  mind  is  not  the  subject  of  inspection 
or  examination,  and  as  the  range  or  extent  of  the  disease  can  only  be  a  matter  of  seientillc 
conjecture  or  judgment,  the  jury  have  ariglit  to  say  whetlier  the  particular  act  charged 
upon  the  defendant  was  or  was  not  an  amplification,  or  extension,  or  another  phase  of  the 
diseas'j,  even  though  the  testimony  may  not  go  that  length.' 

«'  Refused. 

"  '  The  jury  have  the  right  from  their  own  knowledge  of  human  nature,  and  the  tendencies 
of  the  human  mind  in  additi»n  to,  and  in  conllrmation  of,  the  evidence  of  experts,  to  say 
how  far  the  causes  relied  upon  to  establish  irresponsibility  on  the  part  of  the  defendant  at 
the  time  of  the  commission  of  his  act,  were  adequate  or  sufficient  to  produce  insanity,  and 
liid  cause  that  result.' 

"  Whlcli  I  charge  you. 

"  '  Where  the  cause  of  insanity  is  alleged  to  be  an  interference  with  a  man's  marital  rela- 
tions, or  his  paternal  rights  in  taking  away  his  wife  or  child,  the  jury  have  the  right  to  judge 
of  tlic  probability  of  tliu  existence  of  such  an  affection  from  their  own  and  the  known  feel- 
ings of  others,  as  husbands  and  as  fathers.' 

"Refused. 

"  '  If  the  jury  believe  that,  at  the  very  time  of  the  commission  of  the  act  alleged  against 
him,  from  causes  operatinj;  for  a  considerable  length  of  time  beforehand,  or  recently  or 
suddenly  occurring,  the  defendant  was  mentally  unconscious  of  the  nature  of  the  act  in 
which  he  was  engagetl,  he  was  and  is  legally  irresponsible  for  it.' 

"Which  I  charge. 

"  •  If  the  defendant  was  deprived  of  his  reason  at  the  time  the  act  alleged  against  him  was 
committed,  resulting  either  from  a  settled  and  well-established  mental  alienation,  or  from 
the  pressure  and  overpowering  weight  of  the  circumstances  occurring  at  the  time,  he  is 
legally  irresponsible  for  what  he  did.' 

"  Which  I  charge. 

"  '  It  the  jury  believe  that  when  the  deceased  entered  the  Tribune  office  he  did  not  expect 
to  see  the  defendant,  nor  the  defendant  him,  and  that  after  he  entered,  the  defendant  was 
moved  to  the  commission  of  the  act  alleged  against  him  by  the  sudden  access  and  irresisti- 
ble pressure  of  excited  and  overwhelming  passion,  roused  by  the  sudden  and  unexpected 
Bight  of  the  destroyer  of  his  domestic  peace,  or  him  he  supposed  to  be  such,  dethroning  bis 


3IORAL   INSANITY. 


289 


Macfarliiml's  Case  —  Continued. 


against 

sntly  or 

act  in 


Mm  was 
3r  from 
le,  lie  is 


■  expect 
Int  was 
reeisti- 
Ipected 
ling  bis 


reason  and  pressing  him  on  to  tlie  commission  of  tliis  act  under  tlie  influence  of  an  ungov- 
ernable frenzy,  unsettling  for  the  time  his  faculties  and  enthroning  insanity  in  their  place, 
he  is  not  responsible  for  the  act.' 

"  Refused,  because  not  wholly  justifled  by  evidence. 

"  •  If  from  the  whole  evidence  the  jury  believe  that  the  defendant  committed  the  act,  bnt 
ntthe  time  of  the  doing  so  was  under  the  intlucnce  of  a  diseased  mind,  and  was  reully  un- 
cunsoioua  that  he  was  committing  a  crime,  he  is  not  in  law  guilty  of  murder.' 

'Which  I  charge. 

"  '  If  the  jury  believe  that  from  any  predisposing  cause  the  defendant's  mind  was  impaired 
and  at  tlic  time  of  killing  deceased,  h^  became  or  was  mentally  incapable  of  governing 
tiimself  in  reference  to  deceased,  and  at  the  time  of  his  committing  said  act  was,  by  reason 
(if  such  cause,  unconsc'ous  that  he  was  committing  a  crime  as  to  the  deceased,  he  is  not 
guilty  of  any  offence  whatever.' 

"Which  I  charge. 

"  '  If  some  controlling  disease  was  in  truth  the  acting  power  within  him  (the  prisoner), 
which  ho  could  not  resist,  or  if  he  had  not  a  sulUcient  use  of  his  reason  to  control  his  pas- 
bions  which  prompted  the  act  complained  of,  he  is  not  responsible.* 

"Which  I  charge. 

"  'And  it  must  be  born  in  mind,  that  the  moral  as  well  as  the  intellectual  fiiculties,  maybe 
so  disordered  by  disease,  as  to  deprive  the  iniiid  of  its  controlling  and  directing  power.' 

"Which  I  charge. 

"  '  In  order,  then,  to  constitute  a  crime,  a  man  must  have  memory  and  intelligence  to  know 
that  the  act  he  is  about  to  commit  is  wrong;  to  remember  and  understand  that  if  he  coni- 
niits  the  act  he  will  be  subject  to  punishment;  and  reason  and  will  to  enable  him  to  coin- 
piiro  and  choose  between  the  supposed  advantage  or  gratillcfition  to  be  obtained  by  the 
criminal  act,  and  the  immunity  from  punishment  which  ho  will  secure  by  abstaining  from 
it.  If,  on  the  other  hand,  he  have  not  intelligence  and  capacity  enough  to  have  a  criminal 
intent  and  purpose,  and  if  his  moral  or  intellectual  i>owers  are  so  deficient  that  he  has  not 
sullicicnt  will,  conscience,  or  controlling  mental  power,  or  if,  tlirougli  tlie  overwhelming 
violence  of  mental  disease,  his  intellectual  power  is  for  the  time  obliterated,  he  is  not  u 
lusponsiblo  moral  agent,  and  is  not  imnishable  for  criminal  acts.' 

"Which  I  charge. 

'•  'If  the  jury  believe  from  the  evidence,  that  previous,  up  to,  and  at  the  time  of  the 
lidiuicido  in  question,  the  prisoner  thought  or  believed  that  his  wife  and  the  deceased  or 
ciilior  of  them,  wore  or  was  watching  liiin  with  a  view  to  ascertaining  how  he  provided  for 
liis  oldest  son  I'crcy,  intending  to  take  legal  proceedings  to  deprive  him  of  that  son  the 
first  opportunity  that  offered,  and  that  he  considered  his  poverty  would  render  him  almost 
liclplcss  against  such  proceedings,  and  so  he  would  lose  that  son;  that  this  was  nn  un- 
warranted and  unsound  delusion  on  the  part  of  the  prisoner;  that  thereafter,  and  in  con- 
su>iuunce  thereof,  his  mini,  became  and  continued  diseased ;  that  sucli  delusion  and  disease 
increased  in  intensity  I'.iiCil  the  prisoner  became,  was  and  remained  subject  to  great  cause- 
less and  violviii,  frenzies  and  paroxysms  of  rage,  in  which  his  power  of  distinguishing 
wliolhcrhe  vas  committing  a  crime  or  not,  was  for  the  time  destroyed  or  superseded,  and 
that  the  act  '■/harged  upon  him,  was  committed  while  in  such  a  paroxysm,  and  while  such 
power  of  distinguishing  was  destroyed  or  superseded,  he  is  not  responsible  legally  for  that 
act." 

"  Refused,  because,  although  good  iu  part,  it  is  uot,  iu  ray  opiuion,  correct  as 
an  entire  proposition. 

"  '  If  the  jury  believe  from  the  evidence,  that  while  the  prisoner  was  in  such  a  paroxysm 
as  is  described  in  the  last  proposition,  he  committed  the  act  charged  upon  him,  at  the  time 
thereof,  being  entirely  divested  of  all  mental  control  over  his  actions,  and  without  will  or 
consoiencc,  or  the  capacity  to  exercise  will  or  conscience  in  reference  to  his  conduct,  so 
far  as  the  deceased  was  concerned,  and  as  against  the  deceased,  be  is  uot  responsible  legally 
I 'J 


21>0 


THE    LEGAL   TEST   OF    INSANITY . 


Notes. 


for  the  act,  even  though  he  was  at  the  time,  capable  of  distinguishing  between  right  and 
wrong  in  reference  to  his  act.' 

"Which  I  charge. 

"  '  If  the  jury  believe  from  the  evidence,  that,  previous,  up  to  and  at  the  time  of  the  homicide 
in  question,  the  prisoner  thought  or  believed  that  his  wife  actually  loved  him  and  would  not 
have  left  him  but  for  the  persuasion  of  the  deceased  and  females  acting  in  his  interest,  ami 
that  she  was  willing  to  return  and  would  have  returned  to  him  but  for  this  cause,  that  this 
was  an  unwarranted  and  unsound  delusion  on  the  part  of  the  prisoner,  that  thereafter,  and 
in  conse(iuence  thereof,  his  mind  became  diseased  and  continued  diseased,  that  sucli 
delusion  and  disease  increased  in  intensity  until  the  |>risoncr  became,  was,  and  remained 
subject  to  great,  causeless  and  violent  frenzies  and  paroxysms  of  rage,  in  which  his  power 
of  distinguishing  whether  he  was  committing  a  crime  or  not,  was  for  the  time  destroyed  or 
supcrseded,  and  that  the  act  charged  upon  liim  was  committed  by  him  while  in  such  a 
paroxysm,  and  while  such  power  of  distinguishing  was  destroyed,  or  superseded,  he  is  not 
responsible  legally  for  that  act.' 

"  Refused,  because,  although  good  iu  part,  it  is  not,  in  my  opinion,  correct  as 
an  entire  proposition. 

"  '  If  the  jury  believe  from  the  evidence,  that  while  the  prisoner  was  in  such  a  paroxysm 
as  is  described  in  the  last  proposition  ho  committed  the  act  charged  u|)on  him,  at  the  tiniu 
thereof  being  divested  of  all  mental  control  over  his  actions,  and  without  will  or  conscience, 
or  the  capacity  to  exercise  will  or  conscience  in  reference  to  his  conduct,  so  far  as  the 
deceased  was  concerned  and  as  against  the  deceased,  he  is  responsible  legally  for  the  act. 
even  though  he  was  at  the  time,  capable  of  distinguishing  between  right  and  wrong  in 
reference  to  his  act." 

«'  Wliich  I  decline  to  cliarge  in  the  terms  proposed. 

" 'That  to  make  the  prisoner  responsible  for  the  act  charged  upon  him,  the  jury  must 
not  only  be  satisfied  that  he  was  aware  of  what  he  did  at  the  time  of  doing  it,  but  that  he  was 
not  morally  insane  in  reference  to  the  deceased,  or  the  act  which  he  is  charged  with  perpe- 
trating upon  the  deceased.' 

"Which  I  cliarge. 

•' '  That  to  make  the  prisoner  responsible  for  the  act  charged  upon  him  he  must  have  been 
intellectually  and  morally  sane  in  reference  to  that  act,  and  the  deceased  at  the  time  of  iu 
commission.' 

"Wliich  I  charge. 

"  'That  the  law  holds  no  one  responsible  for  his  act,  when  his  mind  was  so  diseased  at 
the  time  of  the  act,  as  to  be  without  reason,  conscience  and  will,  and  where  from  such  cnu>os 
the  party  accused  was  an  involuntary  instrument  of  such  a  disease,  and  incapable  of  refrain- 
ing from  the  commission  of  the  act.' 

"Which  I  charge. 

*'  'The  accused  must  have  sufficient  mental  capacity  to  distinguish  between  right  and 
wrong,  as  applied  to  the  act  he  is  about  to  commit,  and  be  conscious  that  the  act  is  wrong, 
before  he  can  be  convicted  of  a  crime.' 

"Which  I  charge. 

"  'To  coustitute  a  crime,  the  accused  must  be  acted  upon  by  motives,  and  be  governed  by 
will.' 

"Which  I  charge. 

"  '  To  convict  a  person  of  crime  ho  must  have  memory  and  intelligence  to  know  that  the 
act  be  is  about  to  commit  is  wrong,  to  remember  and  understand  that  if  he  commits  the 
act,  he  will  be  subject  to  punishment,  and  reason  and  will  to  enable  him  to  compare  and 
choose  between  the  supposed  advantage  or  gratiftcatlun  to  be  obtained  by  the  criminal  act, 
and  the  immunity  from  punishment  which  be  will  secure  by  abstaining  from  it.' 

"Which  I  charge. 


MORAL    INSANITY. 


291 


Mucfarland's  Case  —  Continued. 


right  and 


e  homicide 
would  not 
terest,  and 
e,  that  this 
eafter,  and 
that  such 
ij  remained 
1  his  power 
estroyed  or 
a  in  such  a 
id,  he  is  not 

correct  as 


a  paroxysm 
,  at  the  time 
conscience, 
o  far  as  the 
r  tor  the  act. 
id  wrong  in 


jury  must 
that  he  wa-. 
with  perpe 


;  have  been 
>  time  of  it* 


diseased  at 
sucli  causes 
e  of  refrain- 


n  right  and 
,ct  is  wrong, 


yroverned  by 


ow  that  tlie 
bommits  the 
Imipare  ami 
Irimlual  act, 


"  'To convict  a  person  of  crime  he  must  have  sulliciont  memory,  intelligence,  reason  and 
will  to  enable  him  to  distinguish  between  right  and  wrong  in  regard  to  the  particular  act 
to  bo  done,  to  know  and  understand  that  it  will  be  wrong,  and  that  he  will  deserve  punish- 
ment by  committing.' 

"  Which  I  charge. 

"  'If  the  proof  shows  that  the  mind  of  the  accused  was  in  a  diseased,  and  unsound  state, 
the  question  will  be  whether  the  disease  existed  to  so  high  a  degree,  that  for  the  time  bein^ 
it  overwhelmed  the  reason,  conscience  and  judgment;  and  whether  the  prisoner,  in  com- 
mitting the  homicide  acted  from  an  irresistible  and  uncontrollable  impulse ;  if  so  then  the 
act  was  not  the  act  of  a  voluntary  agent,  but  the  involuntary  act  of  the  body,  without  the 
concurrence  of  a  mind  directing  it.' 

"Which  I  cliarge. 

"  But  in  regard  to  all  the  matters  embraced  in  the  foregoing  propositions  to 
c''  rge,  it  is  proper  to  add,  tluit  they  are  really  rhetorical  amplifications  more  or 
less  (according  to  different  pluises  of  theory  or  evidence),  of  the  rule  of  law 
whicli  I  have  laid  down  for  interpreting  the  phrases  of  tlie  statute  '  state  of 
sanity,'  or  '  insanity.' 

•'This  case  differs  somewhat  from  all  those  cited  in  one  respect.  Here  the 
accused  had  grown  familiar  with  the  wrongs  that  he  alleges  to  have  been  done 
to  his  marital  relation  by  the  deceased.  Years  progress  from  his  first  alleged 
discovery  of  the  alleged  wrongs.  The  defence  claim  that  this  very  lapse  of  time 
engendered  morbid  fancies,  and  was  lil^ely  to  grow  into  settled  insanity,  or  to 
beget  a  state  of  mind  easily  influenced  to  frenzy.  The  prosecution  claims  that 
this  familiarity  with  alleged  wrongs,  and,  indeed,  acquiescence  in  them,  and  to 
some  extent  trafficking  upon  tliem,  begot  only  the  malice  of  the  law  of  murder, 
and  utterly  destroys  the  idea  of  insanity.  I  tliink  all  the  cases  cited  are  of  nisi 
prius  acquittals,  under  circumstances  of  frenzy  induced  flagrante  delicto,  or  by 
recent  communication  of  dishonor  or  of  sudden  wrongs  calculated  to  dethrone 
reason.  The  only  case  of  conviction  in  the  courts  of  this  State  under  analogous 
circumstances  which  has  reached  very  authoritative  discussion,  as  I  have  been 
able  to  find,  is  the  Sanchez  Case.  The  Court  of  Appeals  in  the  case  of  Sanchez,' 
tliussays:  'Assuming  the  theory  of  the  defence  to  have  been,  as  the  prisoner's 
counsel  alleges,  that  the  homicide  was  committed  by  the  prisoner  in  an  insane 
frenzy,  superinduced  by  jealousy  awakened  in  his  mind  in  relation  to  his  wife's 
conjugal  infidelity — whicli  would  reduce  the  offence  from  murder  to  man- 
slaughter—  and  that  such  theory  was  a  sound  one,  tiie  Inquiry  should  Iiave  been 
confined  to  the  time  and  occasion  of  the  lionilcide,  or  within  a  period  so  shortly 
before,  that  the  court  could  see  tliat  the  passions  had  not,  or  might  not  have  had, 
thnc  to  subside.  The  questions  to  each  of  tliese  witnesses  related  to  an  indel'- 
nite  period  of  time  between  tlie  prisoner's  marriage  and  the  homicide,  and  then;  • 
fore,  if  for  no  other  reason,  were  clearly  inadmissible.' 

"Whicli  leads  me  to  say  that  (as  was  in  tlie  minds  of  the  jury  in  the  Cole 
Ca.sr',  according  to  their  verdict),  the  state  of  insanity  and  the  act  of  commis- 
sion must  concur  in  direct  point  of  time.  This  is  the  converse  of  the  well 
settled  rule  in  cases  of  sane  persons  committing  murder  that  the  design  to  kill 
may  be  conceived  on  the  instant  of  killing.  In  Cole\t  Case  the  jury  saifl :  '  We 
find  the  prisoner  to  have  been  sane  at  the  moment  before  and  the  moment  after 


I  2-2  N.  Y.  U7. 


292 


THE    LEGAL   TEST   OF    INSANITY 


Notes. 


the  killing,  but  are  in  doubt  as  to  his  sanity  at  the  instant  of  the  homicide.' 
The  doubt  was  given  to  the  i)iisoner,  because  on  that  instant  hinged  the  issue. 

•'  Yon  might  conversely  arrive  at  the  conclusion  that  the  deceased  may  have 
l)eeu  in  a  state  of  insanity  at  periods  i)nor  to  the  moment  of  killing,  or  was  in 
a  state  of  insanity  shortly  afterward,  and  you  might  lind  him  in  a  state  of  sanity 
at  tlie  moment  of  the  shot  —  exercising  perception  to  recognize  the  decea.sed, 
exercising  memory  in  recalling  wrongs,  exercising  will  in  aiming  the  pistol,  and 
exercising  judgment  in  going  away  —  all  of  which  are  <iuestions  for  you  to  de- 
termine. 

"  If  you  shall  arrive  at  tlie  conclusion  that  the  accused  was  in  a  state  of  sane 
mind  at  tlw  time  he  llred  tlie  shot,  then  it  becomes  important  to  consider  the 
legal  (piaiity  of  the  act. 

"If  you  l)elieve,  from  the  evidence,  that  the  accused  armed  himself  with  a 
loaded  pistol,  and  sought  out  the  deceased  and  shot  him  upon  grudge  or  malice, 
uitending  to  kill,  he  is  guilty  of  nnirder  in  the  llrst  degree.  If,  having  a  loaded 
pistol,  he  shot  deceased  without  intent  or  design  to  take  life,  and  in  the  heat  of 
passion,  then  it  may  be  either  manslaughter  in  the  third  or  fourth  degree. 
Technically  describeti,  by  the  statute,  murder,  lirst  degree,  is  the  killing  of  a 
human  being,  when  not  justifiable  or  excusable,  nor  coming  under  the  head  of 
manslaughter,  and  perpetrated  with  a  iiremeditated  design  to  effect  death. 

"  I  am  requested  by  the  counsel  for  the  defence  to  charge  certain  propositions 
respecting  tlie  llrst  shooting.  This  llrst  sliootiiig  is  regarded  by  the  prosecution 
as  evidence  of  malice,  or  grudge,  or  ill  will,  and  of  tlieir  manifestation  by  ac- 
cused towards  deceased,  and  it  is  an  important  circumstance  for  you  to  weigh. 

"  'As  to  the  (alleged)  shooting  of  the  ileccaseil  by  the  dofendant  on  March  f3, 1807,  that 
cannot  be  taken  by  the  jury  as  evidence  of  malice,  unlcs.s  the  prosecution  liave  salisUeil 
them  by  proof,  beyond,  all  reasonable  doubt,  that  the  shooting  was  felonious.' 

«'  Which  I  charg<'. 

"  'To  do  this  the  proof  must  be  such  as  would  induce  the  jury  to  llnd  a  verdict  against  the 
defendant,  if  he  was  on  trial  under  an  indictment  for  that  act.' 

"Which  I  charge. 

"  'It  the  jury  believe  from  all  the  evidence  in  the  case,  that  act  was  committed  by  the 
defendant  in  a  state  of  insanity,  they  are  to  discard  It  from  their  consideration  altogether.' 

"  Which  I  cliarge. 

"  'The  fact  that  the  defendant  was  not  prosecuted  for  that  act,  is  strong  evidence  that  the 
act  was  not  deemed  to  be  a  crime  at  the  time  of  its  commission.' 

"Which  1  decline  to  charge. 

"  '  To  make  the  threats  evidence  of  malice  for  any  purpose,  they  would  have  to  be  uttered 
while  the  defendant  was  in  a  sane  state  of  mind.' 

"Which  I  charge. 

"  '  To  connect  them  with  the  shooting  of  November  2."),  1809,  the  jury  must  find  that  they 
wore  uttered  maliciously  —  seriously  —  with  the  intent  to  execute  them  when  and  as  they  ini  ■ 
ported,  by  the  dcfendaut  in  a  stale  of  sanity,  and  that  that  shooting  occurred  in  )')ursuance 
oi  these  threats.' 

"Which  I  decline  to  charge. 

"  'In  passing  upon  the  question  of  whether  that  act  was  or  not  criminal  the  jury  are  to 
take  into  consideration  the  dilUculty  they  may  suppose  the  defendant  to  be  under  in  defend- 


MORAL    INSANITY 


29;i 


Macfarland's  ('iiso  —  Coiitiiiiicd. 


1807,  tlial 


that  thoy 
I  they  iiii- 
jursuance 


iry  are  to 
n  defend- 


ing himself  Hgainst  it  from  the  lapse  of  lime  since  it  occurred,  the  disappearance  or  disper- 
sion of  witnesses,  an<l  tlie  like.' 

"  Wliicli  I  (leclinu  to  charjro. 

"  'As  to  the  (alleged)  shooting  of  March  10, 1867,  it  is  only  evidence  against  the  defendant 
on  the  present  indictment,  on  the  principle  that  that  shooting,  and  that  of  November  3.'i, 
imi'i,  occurred  while  the  defendant  was  iu  a  sane  state  of  mind.' 

"Which  I  cliurge. 

"  'If  the  jury  believe  that  the  act  of  November  25, 1869,  occurred  while  the  defendant  was 
in  a  state  of  insanity,  it  is  unaffected  by  the  act  of  March  1:!,  1867,  even  though  that  act  was 
committed  in  a  state  of  sanity.' 

"Which  Icharije. 

"'Even  supposing  the  defendant  to  have  threatened  to  kill  the  deceased,  ir.  conversa- 
tions occurring  antecedent  to  his  being  shot  on  November  2'>,  186t),  if  that  act  (the  shooting 
on  that  day),  was  perpetrated  by  the  defendant,  while  in  a  state  of  insanity,  it  would  still 
exempt  him  from  legal  responsibility.' 

"  Which  I  cliar{?c. 

"  Tnder  any  circumstances  the  Jury  must  find  that  the  threats  and  act  in  question  were 
the  result  of  a  sound  mind.' 

"Which  I  charge. 

"  '  Upon  the  point  of  the  seriousness  of  the  threats,  the  jury  arc  to  consider  the  fact  that 
those  to  whom  they  were  made,  neither  notified  the  deceased  of  them,  nor  took  any  steps 
to  have  the  defendant  arrested  for  them,  in  pursuance  of  law.' 

"Which  I  decline  to  charge. 

"  'If  the  jury  believe  that  the  threats  v,-ere  unmeaning,  and  were  uttered  in  a  state  of 
excitement  or  anger,  without  any  intention  of  executing  them,  and  wholly  as  the  result  of 
passion,  they  are  not  to  be  regarded  in  determining  the  character  of  the  homicide  in  ques- 
tion.' 

"  This  would  only  modify  their  weight  in  evidence,  but  would  not  exclude 
them  from  tlie  jury. 

"Experts  have  been  called  in  this  case.  They  are  to  bo  considered  rather  as 
mirrors  with  which  merely  to  reflect  upon  you  tlioir  opinions.  But  you  remain 
the  sole  judges  whether  those  reflections  are  accurate.  Sometimes  tlie  expert 
is  an  enthusiast;  sometimes  he  is  a  clover  charlatan.  In  the  one  case  even  his 
iTood  judgment  may  bo  warped;  in  tlie  other  his  want  of  judgment  may  be 
speciously  hidden.     Hence,  the  usefulness  of  the  jury  as  umpire. 

"  Tlie  exact  line  between  sanity  and  insanity  in  medical  philosophy  or  medical 
jurisprudence  is  as  intangible  and  as  dilllcult  to  precisely  measure  as  a  meridian 
line  in  geography.  But  law  and  science  in  each  instance  do  the  best  they  can  to 
iirbitrarily  tlx  them  for  safety.  Experts  in  mental  or  moral  philosophy  or  geog- 
rupiiy  can  only  describe  and  illustrate.  You  become  the  judges.  Test  for  your- 
selves from  this  evidence  the  phases  and  conditions  of  sanity  or  insanity,  or 
the  line  between  aversion,  anger,  rage,  hatred,  wrath,  vengeance  on  one  side, 
und  the  dethronement  of  reason  upon  the  other. 

"We  have  all  probably  seen  manifestations  of  the  emotions  and  passions  just 
named.  A  groat  piiilosopher  has  said,  '  no  man  is  sane.'  '  That  in  every  organ- 
ization there  is  more  or  less  of  a  deviation  from  the  normal  condition  of  the  mind 
as  the  Deity  would  have  It.'  Anger  itself  is  a  short-lived  madness;  wrath  is 
longer-lived;  vengeance  is  still  longer-lived;  but  neither  anger  nor  wrath  nor 
vengeance,  unless  produciug  a  state  of  insanity,  wholly  excuse  crime.    Hence,  as 


294 


THE    LEGAL   TEST   OF   INSANITY. 


Notes. 


philosopliers,  experts,  jurors,  judges,  counsel,  and  laymen  might  speculate  •\vlkllj' 
uiul  blindly  regarding  the  measure  of  the  insanity  that  will  excuse  an  otherwise 
criminal  act,  the  law  has  come  to  deflne  it  as  well  as  it  can,  and  leave  the 
application  in  particular  cases  to  the  sworn  judgment  of  jurors  —  the  real  ex- 
perts—  and  upon  all  the  testimony. 

"I  will  here  read  from  Wharton  &  StlUe's  Medical  Jurisprudence:' 
'  Briand  says,  that  from  the  height  of  passion  to  madness  is  but  one  step,  but  it 
is  precisely  this  step  which  hnpressos  upon  the  act  committed  a  distinct  char- 
acter. It  is  Important  to  know  exactly  the  precise  characteristics  of  the  passions 
and  of  Insanity.  But  here  science  fails,  for  It  must  be  adihitted  that  we  are 
unable  to  point  out  the  place  where  passion  ends  or  madness  commences.  M. 
Orflla  draws  the  following  distinction  between  a  man  acting  under  the  impulse 
of  the  passions  and  one  urged  on  by  insanity:  'The  mind  is  always  greatly 
troubled  where  it  Is  agitated  by  anger,  tormented  by  an  unfortunate  love,  be- 
wildered by  jealousy,  overcome  by  despair,  humbled  by  terror,  or  corrupted  by 
an  unconquerable  desire  for  vengeance,  etc.  Then,  as  is  commonly  said,  a  man 
is  no  longer  master  of  himself,  his  reason  is  affected,  his  ideas  are  in  disorder; 
he  is  like  a  mad  man.  But  in  all  these  cases  a  man  does  not  lose  his  knowledge 
of  the  real  relation  of  things;  he  may  exaggerate  his  misfortunes,  but  this  mis- 
fortune is  real,  and  if  it  carries  him  to  commit  a  criminal  act  this  act  is  perfectly 
well  motived.  Insanity  is  more  or  less  independent  of  the  cause  that  pro- 
duced it;  it  exists  of  itself;  the  passions  cease  with  their  cause,  jealousy  dis- 
appears with  the  object  that  provoked  it,  anger  lasts  but  a  few  moments,  in  the 
absence  of  the  one,  who  by  a  grievous  injury,  gave  it  birth,  etc.  Violent  passions 
cloud  the  judgment,  but  they  do  not  produce  those  illusions  which  are  observable 
in  insanity."  ' 

"  The  counsel  for  the  defence  has  stated  in  your  hearing  that  several  times  in 
kindred  cases  he  has  been  called  upon  to  vindicate  the  sanctity  of  the  marriage  tie, 
or  uphold  and  defend  the  marriage  relation.  I  cliarge  you,  gentlemen,  that  no  such 
ideas  should  enter  into  the  jury-box.  You  are  not  to  uphold  nor  to  prostrate 
the  marriage  relation  by  your  verdict.  Fourierism,  free  love,  or  sentimentalism 
on  the  one  hand,  and  moral  reflections  upon  the  conduct  of  the  deceased  man  or 
living  woman  upon  the  other  hand,  are  not  legitimately  to  affect  j'our  verdict. 
Some  of  you  might  arrive  at  the  conclusion  upon  some  of  the  extraneous  matters 
that  have  been  foisted  into  this  case  that  Richardson  was  the  demon  whom 
counsel  for  the  defence  described  him  to  have  been,  and  others  of  you  might 
arrive  at  a  conclusion  that  the  fact  of  Richardson  and  Mrs.  Macfarland,  both 
desiring  a  divorce  and  a  marriage,  was  proof  that  no  criminality  existed  between 
them  down  to  the  time  of  the  homicide.  Yet,  either  conclusion  would  be  foreign 
to  your  duty  —  your  sworn  and  solemn  duty  —  your  duty  to  the  public  and 
respect  for  due  course  of  law  and  order  as  well  as  your  duty  to  the  accused. 
Unsworn  men  not  clothed  with  the  solemnity  of  jurors'  oaths,  and  interpreting 
a  worldly  code,  may  say  that  he  who  seduces  the  wife  c."  another  ought  to  be 
killed,  or  that  he  who  does  so  upholds  the  marriage  relation.  But  judges  and 
jurors  must  interpret  the  strict  legal  code  —  a  code  that  to  swerve  even  a  hair's 
breadth  from  is  often  as  fatal  to  human  society  as  the  slightest  variation  of  the 


'  Sect.  115. 


MORAL    INSANITY. 


295 


Macfarlancl's  Case —  Continued. 


mariner's  compass  is  sometimes  fatal  to  the  ship  and  her  passensxers,  whose 
safety  depends  on  the  nnswerving  integrity  of  the  maj^netic  needle.  And  In  '"i- 
terpretlng  that  code  the  Inflexible  rule  of  jurors  should  be  that  the  a;;;xrieved 
husband,  or  father  or  relative,  who  takes  the  correction  of  wronj^s  Into  his  own 
hands,  with  pistol  or  knife,  and  is  not  In  a  state  of  Insanity  when  he  did  the  cor- 
rection, Is  not  to  be  acquitted  because  It  Is  the  duty  of  any  man  to  uphold  the 
sanctity  of  the  marriage  tie,  unassisted  by  lei^al  procedure. 

"When  the  prisoner  broujiht  suit  against  llichardson  he  was  within  law. 
When  he  became  executioner  he  took  the  law  Into  his  own  hands.  If  he  took 
this  law  Into  his  own  hands  in  a  state  of  sanity  and  with  malice,  however  much 
sentiment  for  the  living  prisoner  may  applaud  the  act,  he  is  guilty  of  felonious 
killing.  If  in  a  state  of  insanity,  liowever  much  sentiment  In  favor  of  the  dead 
might  reprehend  the  act,  or  however  much  all  persons  might  reprehend  the 
wrong  done  the  State  by  killing  its  citizen  In  an  unauthorized  mode,  the  accused 
is  not  guilty. 

"The  Idea  of  strictly  maintaining  the  law.  Is  that  jurors  shall  not  speculate 
upon  provocation.  Wrongs  occasioned  by  a  swindler,  by  a  betrayal  of  political 
friendship  or  by  the  numerous  variety  of  social  Insults,  could  be  just  as  logically 
estimated  outside  of  law  by  jurors,  In  other  cases,  as  the  wrongs  occasioned  by 
a  seducer.  All  wrongs  may  extenuate  liomiclde  from  the  degree  of  nuirder  to 
one  of  mimslaughtor,  when  the  violent  vindicator  of  them  Is  in  a  state  of  sanity, 
but  under  a  passion  wliieli  does  not  permit  a  design  to  take  life.  Laws  against 
homicide  are  enacted  and  enforced  because  society  is  full  of  wrongs  and  tempta- 
tions therel)y  to  commit  violence  at  the  Instigations  of  malice  or  passions.  Un- 
der any  wrongs,  the  same  person  whom  they  may  have  Impressed  is  not  at  liberty 
after  his  passions  have  had  time  to  cool,  and  after  the  tempest  of  excited  feeling 
have  subsided,  to  stalk  abroad,  seek  out  the  unconscious  and  unprepared  victim 
of  his  resentment,  and  without  the  intervention  of  forms  of  law,  or  the  judgment 
of  his  peers,  become  the  self-appointed  avenger  of  his  own  wrongs,  or  vindica- 
tor of  the  violated  majesty  of  the  law. 

<'  The  law  must  be  left  to  maintain  Its  own  dignity,  and  to  enforce  its  own 
decrees  through  the  constituted  tribunals  of  Its  own  creation,  and  it  lias  not,  in 
any  just  or  legal  sense,  commissioned  the  accused  to  the  discharge  of  the  higli 
office  of  the  law.  We  must  carry  Into  effect  the  law  of  the  land;  we  must  en- 
force its  solemn  mandates,  and  not  nullify  nor  relax  its  positive  commands  by 
misplaced  sympathy  or  morbid  clemency.  If  our  duty  is  clear,  we  forswear  our- 
selves if  we  do  not  perform  it.  This  duty  we  must  discharge  at  whatever  haz- 
ard, whether  painful  or  disagreeable.  Neither  manhood  nor  honor,  the  restraints 
of  conscience,  nor  tlie  solemn  mandates  of  the  law,  allow  us  to  decline  Its  per- 
formance, or  to  hesitate  at  its  execution.  Let  us  content  ourselves  with  admin- 
istering the  law  as  we  find  it,  in  our  own  appointed  sphere  of  duty.  Then  we 
shall  have  consciences  void  of  offence  toward  all  men,  and  the  happy  conscious- 
ness, that  In  the  spirit  of  our  oaths,  and  In  conformity  with  the  obligations  which 
rest  upon  us,  we  have  as  faithful  and  law-abiding  citizens  executed  the  laws  of 
the  land." 

Mr.  Graham.  —  "  I  want  your  honor  to  charge  this  sentence  of  Recorder  Hoff- 
man's charge  In  the  Wagner^s  Case  " :  — 

"  '  I  have  been  requested,'  says  Recorder  Hoffman,  « to  charge  you,  that  if 


296 


THE    LKtJAL   TKST    OI'    INSANITY. 


Notes. 


the  prisoner  committed  tlie  act  in  a  moment  of  frenzy,  lie  cannot  be  convicted  of 
murder  in  tiie  first  (leyree;  I  not  only  cimruc  tliat  proposition,  but  if  his  mind 
was  in  tiiat  condition  he  cannot  he  convicted  of  any  offence.'  " 
The  Coi'iiT.  "  I  so  charge." 

"Tlie  jury  retired,  and  in  an  hour  and  forty-eiglit  minutes  returned,  and  ren- 
dered a  verdict  of  '  not  guilty,'  and  the  prisoner  was  discharged." 

In  Commomoealth  v.  Hosier,'*  tried  in  184(J,  in  the  Philadelphia  court  of  Oyer 
and  Terminer,  before  Ginsox,  C.  J.,  Coim.tkk,  and  Bkll,  JJ.,  the  different 
kinds  of  insanity  were  passed  on  by  the  cidef  justice  in  his  charge  to  the  jury, 
and  it  was  held:  (1)  that  insanity  to  be  a  defence  to  a  crime  must  bo  siiown  to 
exist  to  such  an  extent  as  to  blind  its  subject  to  the  consequences  of  iiis  acts  and 
deprive  him  of  all  freedom  of  agency;  (2)  that  want  of  motive,  or  (3)  the  nature 
of  the  act  itself  is  no  evidence  of  insanity. 

The  prisoner  Avas  indicted  for  the  murder  of  Eve  Mosler,  his  wife.  It  appeared 
that  the  parties  had  been  married  about  eleven  years,  and  that  there  was  a  great 
disparity  of  age  between  them,  the  prisoner  being  nearly  twenty  years  the  younger 
of  the  two.  On  the  day  of  the  homicide  the  prisoner  came  into  the  house  about  one 
o'clock,  and  shortly  afterwards  commenced  taunting  one  Boyer,  a  son  of  the  de- 
ceased by  a  former  liusband,  and  at  the  same  time  threatening  to  cut  tlie  throat 
of  her  granddaughter.  At  about  six  o'clock  the  prisoner  and  deceased  were 
left  alone  in  the  house,  having  previously  had  a  slight  quarrel,  and  about  twenty 
minutes  past  six  o'clock  the  deceased  was  found  lying  In  the  house  with  licr 
tliroat  cut.  No  question  was  made  on  the  trial  as  to  tlie  fact  of  the  prisoner 
being  the  guilty  agent.  Ilis  shirt  was  torn,  there  were  several  bruises  on  tlie 
person  of  the  deceased,  and  her  left  eye  was  black  as  from  a  blow.  He  was 
arrested  wliile  changing  his  shirt,  in  the  room  where  the  act  was  done.  He  im- 
mediately said  that  he  "  did  it,"  and  said  tliat  he  "  had  done  it  with  her  own  sou's 
razor;  "  that  he  "was  ready  to  go  anywhere;  "  "he  had  tried  to  do  it  before," 
"iiad  done  it  this  time  right."  The  defence  was  insanity,  and  in  support  of  it 
evidence  was  offered  to  sliow  that  a  year  or  more  before  he  had  attempted  to 
flre  his  wife's  house;  that  some  time  previous  he  liad  started  to  Pittsburg,  but 
soon  returned,  saying  that  every  night  tlie  deceased  and  her  granddaughter 
stood  at  the  foot  of  his  bed;  and  that  when  arrested,  his  appearance  and  con- 
duct, according  to  the  impression  of  one  witness,  were  those  of  a  crazy  man. 

GiBSOx,  C.  J.,  in  cliarging  the  jury,  said:  "Tlie  fact  of  killing  is  not  denied. 
Two  points  of  defence  liavc  been  set  up:  The  flrst,  that  of  insanity,  implying 
an  entire  depriv..ul  jn  on  the  part  of  the  prisoner  of  tiie  power  of  self-control, 
and  constituting  a  complete  defence  to  the  charge.  The  second,  that  of  tempo- 
rary fury  induced  by  aderpiate  provocation,  reducing  the  offence  to  manslaugliter. 
Tlie  flrst,  if  sustained,  will  acquit  him  altogether;  the  second,  while  acquitting 
him  of  murder,  will  leave  hira  guilty  of  manslaughter. 

"  Insanity  is  mental  or  moral,  the  latter  being  sometimes  called  homicidal 
mania,  and  properly  so.  It  is  my  purpose  to  deliver  to  you  the  law  on  this 
ground  of  defence,  and  not  to  press  upon  your  consideration,  at  least  to  an  un- 
usual degree,  the  circumstances  of  the  present  case  on  which  the  law  acts. 

"A  man  may  be  mad  on  all  subjects;  and  then,  though  he  may  have  glimmer- 


>  4  Pa.  St.  264. 


MORAL    INSANITY. 


21)7 


Commomvcaltli  v.  Moslcr. 


ii:;r.s  of  reason,  ho  Is  not  a  responsible  agent.  This  is  general  insanity;  hnt  If 
H  be  not  so  great  in  its  extent  or  tlegreo  as  to  blind  him  to  the  natnre  and  con- 
sequences of  his  moral  duty,  It  Is  no  defence  to  an  accusation  of  crime.  It  must 
be  so  great  as  entirely  to  destroy  his  perception  of  right  and  wrong;  and  it  is 
not  until  that  perception  is  tlius  destroyed,  that  ho  ceases  to  be  responsil)Ie.  It 
must  amount  to  delusion  or  hallucination,  controlling  his  will,  and  making  the 
commission  of  the  act.  In  his  apprehension,  a  duty  of  overruling  necessity.  The 
most  apt  Illustration  of  the  latter  Is  the  perverted  sense  of  religious  obligation 
which  has  caused  men  sometimes  to  sacrlllco  their  wives  and  children. 

"  Partial  Insanity  is  confined  to  a  particular  subject,  the  man  being  sane  on 
every  other.  In  that  species  of  madness,  it  Is  plain  that  ho  is  a  responsible 
agent.  If  ho  were  not  Instigated  by  his  madness  to  perpetrate  the  act.  Ho  con- 
tinues to  be  a  legitimate  subject  of  punishment,  although  he  may  have  been 
laboring  under  an  obliquity  of  vision.  A  man  whose  mind  squints,  unless  im- 
pelled to  crime  by  this  very  mental  obliquity,  is  as  much  amenable  to  punish- 
ment as  one  whose  eye  squints.  On  this  point  there  has  been  a  mistake,  as 
melancholy  as  it  is  popular.  It  has  been  announced  by  learned  doctors  that  If  a 
man  has  the  least  taint  of  Insanity  entering  into  his  mental  structure.  It  dis- 
charges him  of  all  responsibility  to  the  laws.  To  this  monstrous  error  may  be 
traced  both  the  fecundity  in  homicides,  which  has  dishonored  this  country,  and 
the  Immunity  that  has  attended  them.  The  law  Is,  that  whether  the  insanity  be 
general  or  pavtlal,  the  degree  of  it  must  bo  so  great  as  to  have  controlled  the 
will  of  Its  subject,  and  to  have  taken  from  him  the  freedom  of  moral  action. 

"  But  there  Is  a  moral  or  homicidal  Insanity,  consisting  of  an  Irresistible  Incli- 
nation to  kill,  or  to  commit  some  other  particular  offence.  There  may  be  an 
unseen  ligament  pressing  on  the  mind,  drawing  it  to  consequences  which  it  sees 
but  cannot  avoid,  and  placing  It  under  a  coercion  which,  while  Its  results  are 
dearly  perceived,  Is  incapable  of  resistance.  The  doctrine  which  acknowledges 
this  mania  Is  dangerous  In  Its  relations,  and  can  be  I'ocognized  only  In  the  clearest 
cases.  It  ought  to  be  shown  to  have  been  habitual,  or,  at  least,  to  have  evinced 
itself  In  more  than  a  single  instance.  It  Is  seldom  directed  against  a  particular 
individual.  But  that  it  maybe  so,  Is  proved  by  the  case  of  the  young  woman 
who  was  deluded  by  an  IrreslstUile  Impulse  to  destroy  her  child,  though  aware 
of  the  heinous  nature  of  the  act.  The  frequency  of  this  constitutional  malady 
is  fortunately  small,  and  It  is  better  to  confine  It  within  the  strictest  limits.  If 
juries  were  to  allow  It  as  a  general  motive,  operating  in  cases  of  this  character, 
its  recognition  would  destroy  social  order  as  well  as  personal  safety.  To  estab- 
lish it  as  a  justification  in  any  particular  case.  It  is  necessary  either  to  show,  by 
clear  proofs.  Its  contemporaneous  existence  evinced  by  present  circumstances, 
or  the  existence  of  habitual  tendency  developed  la  previous  cases,  becoming  in 
itself  a  second  nature.  Now,  what  Is  the  ovideuco  of  mental  insanity  In  this 
particular  case? 

"  1.  The  prisoner's  counsel  rely  on  his  behavior,  appearance,  and  exclamations 
at  the  time  of  tlie  act  or  Immediately  after  It.  According  to  one  witness,  his 
conduct  was  that  of  a  reckless  determination,  evincing  un  unsound  mind.  *I 
ilo  it,'  he  repeated  three  times.  It  Is  said,  like  a  raving  maniac.  But  you  must 
recollect  that,  to  commit  murder,  a  man  must  be  wound  up  to  a  high  pitch  of 
excitement.    None  but  a  butcher  by  trade  could  go  about  it  with  circumspection 


298 


THE    LKOAL   TEST   OF   INSANITY. 


Notes. 


and  coolness.  The  emotion  sliown  by  the  prisoner  wns  not  extrftordJniiry.  TIi' 
seemed  to  know  the  conseiinenees  of  Ills  act  —  wiis  nnder  ti  di-luslon  —  and  was 
self-possessed  enough  to  llnd  a  reason  for  the  uct,  that  reason  being  her  alleged 
iii-treatment. 

"  2.  It  is  urged  that  the  want  of  motive  is  evidence  of  Insanity.  If  a  motive  were 
to  bo  necessarily  proved  by  the  Connuomvealth,  it  is  sliown  in  this  case  by  the 
prisoner's  own  declaration;  l)Ut  a  motive  need  not  always  bo  shown, —  it  may  be 
secret;  and  to  hold  everyone  mad  whose  act  cannot  lie  accounted  for  on  the 
ordinary  principles  of  cause  and  effect,  \#ould  give  a  general  license.  Tin;  law 
itself  Implies  malice,  where  the  homicide  is  accompanied  with  suiii  circum- 
stances as  are  the  ordinary  symptoms  of  a  wicked,  depraved,  and  mallgiiaiit 
spirit, — a  heart  regardless  of  social  duty,  and  delil)erately  bent  upon  miscliuf. 

"  ;{.  But  it  is  said  that  tiiere  is  intrinsic  evidence  of  insanity  from  tlie  nature 
of  the  act.  To  the  eye  of  reason,  every  murderer  may  seem  a  madman;  but  in 
the  eye  of  the  law  he  is  Still  responsible. 

"4.  His  trip  to  Pittsburg  and  voyage  to  Germany,  it  is  contended,  have  not  been 
accounted  for,  except  that  he  expected  to  get  property  in  the  latter,  but  did  not ; 
and  tliere  Is  an  e(|ual  obscurity  al)out  the  motive  of  his  se'tting  lire  t(j  ills  wife's 
property,  —  her  barn,  I  think  it  was;  but  these  things  do  not  show  an  insanity 
connected  with  his  crime. 

"The  only  circumstance  which  seems  to  point  to  a  foregone  conclusion,  is  the 
repeated  visions  he  had  after  he  started  for  I'ittsburg  of  liis  wife  and  lier  graiul- 
daugliter,  wliose  throat  he  also  attempted  to  cut,  standing  at  the  foot  of  his  bed. 
This  foreboding  may  tend  to  show  a  morbidness  of  mind  in  reference  to  tills 
particular  subject;  but  it  is  for  you  to  say, — keeping  in  mind  the  fact  that,  to 
constitute  a  sufllcient  defence  on  this  ground,  there  must  be  an  entire  destruc- 
tion of  freedom  of  the  will,  l)lin(liiig  the  prisoner  to  the  nature  and  consequence 
of  his  moral  duty,  —  whether  tiiese  circumstances  raise  a  reasonable  doubt  of 
the  prisoner's  responsibility. 

"To  reduce  the  offence  of  manslaughter,  it  is  necessary  that  a  quarrel  should 
liave  taken  place,  and  blows  have  been  interchanged  between  parties  in  some 
measure,  upon  equal  terms  of  strength  and  condition  for  fighting;  and  this, 
without  regard  to  the  question  who  struck  first.  Yet  tliis  must  be  taken  with 
some  grains  of  allowance.  If  a  man  should  kill  a  woman  or  a  child  for  a  sligiit 
blow,  the  provocation  would  be  no  justification;  and  I  very  much  qne-fjon 
whether  any  blow  inflicted  by  a  wife  on  a  husband  would  bring  tli<  killiii_ 
her  below  murder.  Under  this  view  of  the  law,  I  have  nlway  di  ted  Sled- 
man's  Case,  in  which,  for  a  woman's  blow  on  the  face  with  ; 
to  a  soldier  in  return  for  words  of  gross  provocation,  he  j. 
the  pommel  of  his  sword  on  her  breast,  and  then  ran  after  i 
in  the  back,  and  the  crime  was  held  to  be  only  manslaughter.' 
is  cruel  or  unmanly,  the  provocation  will  not  excuse  it;  and  the  same  law  exists 
where  there  was  a  previous  quarrel,  and  the  killing  was  on  the  old  grudge. 

"You  will  determine  whether  there  was  provocation  in  this  case  sufficient  to 
lower  the  offence,  on  this  view  of  the  law,  to  manslaughter.  The  behavior  of 
the  deceased  immediately  preceding  the  struggle  was  peaceable  and  soothing. 


,iatten,  given 

,ier  a  blow  witl. 

iiid  stM'  hedher 

\Vh(    ■  a  blow 


Reg.  V.  Stedman,  Fast.  292;  1  Hale,  4.57;  1  Hawk.,  cb.  31,  sect.  34. 


MORAL    INSANITY. 


SJtf) 


CoinmoiiwcaUh  v.  Frcth. 


You  will  recollect  tlmt,  nccordlnfj  to  the  evidence,  she  put  off  pettlnsj  a  warrant 
from  tluie  to  thnc,  in  hopes  liis  conduct  wf)uld  cluiufie.  Ills  behavior,  on  tlic 
other  liand,  was  (luarrelsonie  to  every  one  present.  Ills  shirt,  which  appeared 
iifterwards  to  have  been  torn,  shows  a  seuflle,  1)Ut  no  more;  and  If  done  by  her, 
it  was  more  prol)ably  in  resisting  than  attacklnir.  You  will  keep  in  mind  the 
disparity  of  aiie  and  strenijth,  and  the  fact  that  all  the  bruises  were  received  on 
ill  ri)art,  and  ri'celved  In  self-protection. 

"  If  the  evidence  on  these  points  fail  the  prisoner,  the  conclusion  of  his  pullt 
will  be  inevitable,  and  It  will  bo  your  duty  to  draw  It,  however  unpleasant  it 
iiiiiy  be.  You  are  bound  by  the  trennndous  sanction  of  an  oath  to  do  your  duty 
iiy  liim;  and  you  are  bound  by  the  same  sanction  to  do  your  duty  i)y  the  Coni- 
inouwealtli;  and  to  you  the  case  of  the  one  and  the  other  Is  connnltted." 

The  jui'ii  rrtnvncd  n  verdict  <if  (jniltn  ofiiwinlcv  in  thefivKt  degree . 

In  Commomocdlth  v.  Frcth,^  who  was  tried  in  Ih,j8  In  the  Court  of  Oyer  and 
Terminer  of  rhiladeli)hla  for  the  nnirder  of  Wni.  Lee  Smith,  LiDi.ow,  J.,  charired 
tiie  jury  as  follows:  "  The  defence  In  this  case  Is  that  the  i)risonerat  the  time 
uf  the  commission  of  this  offence  was  not  an  accountable  belii^i;  if,  gentlemen 
of  tlio  jury,  this  alleiiation  is  true,  it  would  be  monstrous  to  punish  him,  and 
tlu  lefore  we  find  the  law  to  be,  if  one  charijed  with  the  conunission  of  crime  is 
so  entirely  devoid  of  understanding  as  to  be  either  an  Idiot  or  a  madman,  he  is 
thereby  acquitted  of  all  guilt,  he  Is  not  criminally  responsible  to  the  offended 
majesty  of  the  law,  but  becomes  at  once  rather  an  object  of  pity  than  the  subject 
of  punishment. 

"  (lentlemen,  It  is  unnecessary  for  me  to  say  to  you,  that  we  will  be  oblised  to 
iiivestiijjate  a  most  delicate  and  dangerous  subject;  nevertheless  we  will  en- 
deavor to  lay  such  rules  and  tests  as  will  enable  vqu  to  arrive  at  a  satisfactory 
conelnsicm. 

"  If  the  prisoner  at  the  bar,  at  the  time  he  cominitted  the  net,  had  not  sufficient 
cMpacity  to  know  whether  his  act  was  right  or  wronji,  and  whether  it  was  con- 
trary to  law,  he  is  not  responsible;  that  is  in  fact  generiil  Insanity,  so  far  as  the 
act  in  cpiestion  is  concerned,  and  It  must  be  so  trrt  at  in  extent  and  degree  as  to 
blind  liim  to  the  natural  consequences  of  hi.,  moral  duty,  and  must  have  utterly 
destroyed  his  perception  of  right  and  wrong. 

"  The  test,  in  this  Instance,  as  you  perceive,  is  the  power  or  capacity  of  a 
prisoner  to  distinguish  between  right  and  wrong  in  reference  to  the  particular 
act  In  question ;  for  although  a  man  may  be  sane  upon  every  subject,  yet  if  he  be 
inad,  to  use  an  expressive  phrase,  upon  the  subject,  and  so  far  as  the  actimder 
immediate  investigation  is  concerned,  he  thereby  loses  that  control  of  his  mental 
powers  which  renders  him  a  responsible  being.  The  test  thus  suggested  has 
been  adopted  by  the  judges  of  England,  and  by  the  courts  of  our  own  State,  and 
is  too  well  settled  to  be  shaken. 

"  But  suppose  that  the  prisoner  was  able  to  distinguish  between  right  and 

I  ong,  and  yet  was  laboring  under  partial  insanity,  hallucination  or  delusion, 
which  drove  him  to  the  commission  of  the  act  as  a  duty  of  overwhelming  neces- 
sity, is  he  in  such  cases  responsible  for  his  acts? 

"  If  the  delusion  were  of  such  a  nature  as  to  induce  the  prisoner  to  believe  in 


1  SPbila.  105;  5  Clark,  455. 


300 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


the  real  existence  of  facts  which  were  entirely  imajiinary,  but  which,  if  true, 
would  have  been  a  good  defence,  ho  would  not  be  responsible.  We,  however, 
desire,  at  this  stage  of  our  remarks,  to  refer  to  other  delMsions  than  the  class 
thus  spoken  of,  reserving  for  future  consideration  our  remark:?  on  this  branch  of 
the  subject. 

"  That  partial  insanity,  hallucination  or  delusion,  coupled  with  the  power  of 
discriminating  between  right  and  wrong,  was  no  excuse  for  crime,  has  betii 
ruled  to  be  the  law  of  England,  and  to  this  point  did  the  judges  of  f^ngland  refer 
in  McNaghten^s  Case,^  in  their  first  answer  to  the  questions  propounded  to  tb.eiii 
by  the  House  of  Lords.  This  doctrine  was  also  stated  to  be  the  law  by  our  pn- 
decessors  upon  this  bench  in  the  case  of  Coinmonioealth  v.  Farkin,"^  and  would 
have  remained  the  law  of  this  State,  but  for  the  opinion  and  charge  of  Ch.  J. 
Gibson  in  Commonwealth  v.  Mosler,^  where  the  chief  justice  says:  *  It  (insan- 
ity) must  amount  to  delusion  or  hallucination,  controlling  his  will,  and  making 
the  commission  of  the  act  a  duty  of  overruling  necessity; '  and  again  he  says, 
'  The  law  is,  that  whether  insanity  be  general  or  partial,  it  must  be  so  great  as  to 
have  controlled  the  will  of  its  subject  and  to  have  taken  from  him  the  freedom  of 
moral  action.' 

*•  Medical  writers  agree  that  instances  constantly  occur  of  the  commission  of 
acts  of  killing  by  those  who  not  only  know  that  the  act  about  to  be  committed  is 
wrong,  but  that  punishment  is  afBxed  to  its  commission  by  law. 

"  We  cannot,  however,  leave  this  branch  of  the  subject  to  doubt  or  uncer- 
tainty, and  our  conclusion  is,  after  a  somewhat  extended  investigation  of  tin- 
law,  that  the  proper  rule  to  be  adopted  upon  the  point  in  question  is  the  foUow- 


rel 

11x1 

wll 

to 

ilel 

thJ 

(Icll 

sun 

thai 

If 

chd 


"  If  the  prisoner,  although  he  labors  under  a  partial  insanit}',  hallucination  or 
delusion,  did  understand  the  nature  and  character  of  his  act,  had  a  knowledge 
that  it  was  wrong  and  criminal,  and  mental  iioworsullicie-nt  to  apply  tbat  knowl- 
edge to  his  own  case,  and  knew  if  he  did  the  act,  he  would  do  wrong,  ard  would 
receive  punishment;  if  further,  he  had  sulliclcnt  power  of  memory  to  I'ccollect 
the  relation  la  which  he  stood  to  other«.  and  others  .«tood  to  him,  that  the  act  in 
question  was  contrary  to  the  plain  'I'ctates  of  justice  and  right,  injurious  to 
others,  and  a  violation  of  the  dictates  of  duty,  he  would  be  responsible. 

"A  man  must,  therefore,  labor  under  something  more  than  a  '  moral  obliquity 
of  perception,'  and  'a  man  whose  miud  squints,  unless  imiK'lled  to  crime  l)y  this 
very  mental  obliquity  is  as  much  amenable  to  punishment  as  one  whoso  eye 
squints.' 

*'  The  jury  must,  therefore,  even  though  they  believed  the  prisoner  labored 
under  a  diseased  and  unsound  state  of  mind,  be  satisfied  that  this  diseased  or 
unsound  state  of  mind  existed  to  such  a  degree,  that,  although  he  could  distin- 
guish between  right  and  wrong,  j'ct  with  reference  to  the  act  in  question  his  rea- 
son, conscience,  and  judgment  were  so  entirely  perverted,  as  to  render  the 
commission  of  the  act  in  question  a  duty  of  overwhelming  recesslty. 

"But,  gentlemen,  there  is  another  species  of  delusion  entirely  distinct  from 
those  we  have  just  considered,  which  is  recognized  by  the  law,  and  which  when 
the  jury  believe  that  it  clearly  exists  will  entitle  the  prisoner  to  an  acquittal.    I 


>  10  CI.  &  F.  210. 


«  2  Pars.  Sel.  Cas.  431. 


»  4  Pa.  St.  264. 


MORAL    INSANITY. 


301 


Coinmonwcalth  v.  Froth  —  Continued. 


refer  to  that  delusion  by  reason  of  whicli  the  prisoner  commits  the  act  under  a 
lixed  bona  fide,  belief  (whieli  is  a  delusion)  that  certain  faets  existed  which  were 
wholly  imaginary,  but  which,  if  true,  Avould  have  been  a  good  defence. 

"The  judges  of  England,  in  their  answer  to  the  fourth  question  propounded 
to  them  by  the  House  of  Lords,  say:  '  Supposing  that  one  labors  under  a  partial 
delusion,  and  is  not  in  other  respects  insane,'  we  think  he  must  be  considered  in 
the  same  situation  as  to  responsibility  as  if  the  facts  with  respect  to  which  the 
delusion  exists  were  real.  Tor  example:  if,  under  the  influence  of  delusion,  he 
supposes  a  man  to  be  in  the  act  of  attempting  to  take  away  his  life,  and  he  kills 
that  man,  as  he  supposes,  in  self-defence,  he  would  be  exempt  from  punishment. 
If  his  delusion  was  that  the  deceased  had  inflicted  a  serious  injury  to  his 
character  aud  fortune,  and  he  killed  liim  in  revenge,  he  would  he  liable  to  pun- 
ishment. 

"But,  gentlemen,  if  this  spirit  of  delusion  existed,  the  act  chaiged  against  the 
prisoner  must  be  the  direct  resuiD  of  this  delusion,  and  the  delusion  must  have 
been  directly  connected  with  the  act,  driving  him  to  its  connnission,  and  must 
have  been  such  a  delusion  which,  if  it  had  been  a  reality  instead  of  an  imagina- 
tion, would  have  justified  him  in  taking  life.  Besides  the  kinds  of  insanity  to 
which  I  have  referred,  aud  which,  strictly  speaking,  effect  the  mind  oidy,  we  have 
moral  or  homicidal  insanity  which  seems  to  be  an  irresistible  inclination  to  kill 
or  to  commit  some  particular  offence.  AVe  are  obliged  by  the  force  of  authority 
to  say  to  you  that  there  is  such  a  disease  known  to  the  law  as  homicidal  in- 
sanity. What  it  is,  or  in  what  it  consists,  no  lawyer  or  judge  has  ever  jet  been 
able  to  explain  with  precision.  Physicians,  especially  those  having  charge  of  the 
insane,  gradually,  it  would  seem,  come  to  the  conclusion  that  all  wicked  men  are 
mad,  and  many  of  the  judges  have  so  far  fallen  into  the  same  error  as  to  render 
it  possible  for  any  man  to  escape  the  penalty  which  the  law  affixes  to  crime. 

"We  do  intend  to  be  understood  as  expressing  the  opinion  that,  in  some  in- 
stances, human  beings  arc  not  alliicted  with  a  homicidal  mania,  but  we  do  intend 
to  say  that  a  defence  consisting  exclusively  of  this  species  of  Insanity  has  fre- 
quently been  made  the  means  by  which  a  notorious  offender  has  escaped  punish- 
iiK  lit.  What,  then,  is  that  form  of  disease,  denominated  liomicidal  mania,  which 
will  excuse  one  for  having  committed  a  murder? 

"Cliii'f  Justice  Gins(»x  calls  it  '  that  unseen  ligament  pressing  on  the  mind 
a.d  driving  it  to  consequences  which  it  sees  but  cannot  avoid,  and  placing  it 
under  a  coercion  which,  while  its  results  are  clearly  perceived,  is  incapable  of 
resistance  '  — '  an  irresistible  inclination  to  kill.' 

"  If  by  moral  insanity  it  is  to  be  understood  only  a  disordered  or  perverted 
state  of  the  affections  or  moral  powers  of  the  mind,  it  cannot  be  too  soon  dis- 
carded as  affording  any  shield  for  ])unishmeiit  for  crime;  if  it  can  be  truly  said 
that  one  who  indulges  in  violent  emotions,  such  as  remorse,  auger,  shame,  grief, 
ami  the  like,  is  aillicted  with  homicidal  insanity,  it  will  be  difllcult,  yes,  impos- 
sible to  say  when  sanity  ends  and  insanity  begins,  for,  by  way  of  illustration, 
the  man  who  is  lashed  into  fury  by  a  fit  of  anger  is  in  one  sense,  insane.  As  a 
areneral  rule,  it  will  be  found  that  instances  are  rare  of  cases  of  liomicidal  in- 
sanity occurring  wherein  the  mania  is  not  of  a  general  nature,  and  results  in  a 
desire  to  kill  any  and  every  iierson  who  may  chance  to  fall  Avithin  the  range  of 
tile  maniac's  malevolence,  as  it  is  general,  so  also  is  it  based  upon  Imaginary 


302 


THE   LEGAL   TEST   OF    INSANITY. 


Notes. 


and  not  real  wrongs;  if  It  is  directed  against  a  particular  person  (as  is  some- 
times the  case),  then  also  the  cause  of  the  act  will  generally  be  imaginary. 
When,  therefore,  the  jury  find  from  the  evidence  that  the  act  has  been  the  result 
not  of  an  imaginary,  but  a  real  wrong,  they  will  take  care  to  examine  with  great 
caution  into  tiio  circumstances  of  the  case,  so  that  with  the  real  wrong,  they 
may  not  also  discover  revenge,  anger,  and  kindred  emotions  of  the  mind  to  be 
the  real  motive  which  has  occasioned  the  homicidal  act. 

"  Ortlla  has  said,  '  that  the  mind  is  always  greatly  troubled  when  it  is  agitated 
by  anger,  tormented  by  an  unfortunate  love,  bewildered  by  jealousy,  overcome 
by  despair,  haunted  by  terror,  or  corrupted  by  an  unconquerable  desire  for  ven- 
geance. Then,  as  is  commonly  said,  a  man  is  no  longer  master  of  himself,  his 
reason  is  affected,  hi.s  ideas  are  in  disorder,  he  is  like  a  madman.  But  in  all 
these  cases  a  man  does  not  lose  his  knowledge  of  the  real  relation  of  things. 
He  may  exaggerate  his  misfortune,  but  this  misfortune  is  real,  and  if  it  carry 
him  to  commit  a  criminal  act,  this  act  is  perfectly  well  motived.' 

"  The  man  who  has  a  clear  conception  of  the  various  rchitions  of  life,  and 
the  real  relations  of  things,  is  not  often  afflicted  with  insanity  of  any  descrip- 
tion. He  may  become  angry,  and,  in  a  fit  of  temper,  kill  his  enemy,  or  even  his 
friend,  but  this  is  not,  and  I  hope  never  will  be,  called,  in  courts  of  justice,  in- 
sanity. Again,  one  who  is  really  driven  on  l)y  an  uucontrollal)]e  impulse  to  the 
commission  of  a  crime,  will  be  able  to  show  its  '  contemporaneous  existenei' 
evinced  by  present  circumstances,  or  the  existence  of  an  habitual  tendency  de- 
veloped in  particular  cases,  and  becoming  in  itself  a  second  nature.'  And  ought 
further  to  show  that  the  mania  '  was  habitual,  or  that  it  had  evinced  itself  iu 
more  than  one  instance.' 

"Chief  Justice  Lkwis  has  said,  that  moral  insanity  'bears  a  striking  resem- 
blance to  vice; '  and  further:  '  It  oug'it  never  to  l)e  admitted  as  a  defence  until 
it  is  shown  that  these  propensities  exist  in  such  violence  as  to  suljjugate  the  in- 
tellect, control  the  will,  and  render  it  inipossil)le  for  the  party  to  do  otherwise 
than  yield.'  And  again :  *  This  state  of  mind  is  not  to  be  presumed  without  evi- 
dence, nor  does  it  it  usually  occur  without  some  premonitory  symptoms  iudicJit- 
ing  its  approach.' 

"  Gentlemen  of  the  jury,  we  say  to  you  as  the  result  of  our  reflections  on  thin 
branch  of  the  subject,  tliat  if  the  prisoner  was  actuated  by  an  irresistible  incli- 
nation to  kill,  and  was  utterly  unable  to. control  his  will  or  subjugate  his  intel- 
lect, and  was  not  actuated  by  anger,  jealousy,  revenge,  and  kindred  evil  passions, 
he  is  entitled  to  an  acquittal,  provided  the  jury  believe  that  the  state  of  niiiiii 
now  referred  to  has  been  proven  to  have  existed  without  doubt,  and  to  their 
satisfaction." 

The  judge  then  reviewed  at  length  the  evidence,  and  called  the  attention  of 
the  jury  to  the  Act  of  Assembly  regulating  the  degrees  of  nuirder,  and  also  to 
that  act  Avhich  requires  a  jury  when  the  defence  is  insanity,  to  say  so  if  they  so 
believe,  and  also  to  find  if  the  prisoner  is  acquitted  on  that  ground.  And  after 
calling  upon  the  jury  in  the  most  so!:'mu  manner  to  discharge  their  whole  duty, 
he  committed  the  prisoner  to  their  charge,  saying:  "  If  the  prisoner,  l)y  reason 
of  mental  intlrmity,  is  not  a  responsible  being,  acquit  him;  but  if  you  believe 
him  to  be  guilty,  in  that  event  consign  him  to  that  doom  which  is  the  direct 
result  of  his  owu  act." 


5 


MORAL   INSANITY, 


303 


Commonwealth  v.  Mooro. 


In  Commonwealth  v,  Moo7'e,^  tried  in  the  Court  of  Oyer  and  Terminer  of 
Cambria  County,  Pen  isylvania,  in  1804,  the  prisoner  was  indicted  for  tlie 
murder  of  Jordan  Marbourg,  and  Insanity  was  set  up  as  a  defence.  TAvr.f)!!, 
P.  J.,  charged  the  jury  as  follows:  "  Was  the  prisoner  at  the  time  of  the  homi- 
cide a  responsible  agent;  or,  in  other  words,  was  he  insane?.  Tiie  just  prin- 
ciple upon  whic'  .1  is  defence  rests,  Is,  that  one  wliose  perception  of  right  is 
perverted  or  d'^*i  •■oyed  by  mental  malady,  is  not  responsil)le  for  his  actions  any 
more  tlian  an  -  ant.  The  law  imputes  to  them  no  guilt  whatever;  and  when 
such  a  state  of  mind  at  the  time  of  tlie  commission  of  an  act  souglit  to  l)e  pun- 
ished as  a  crime  is  shown  to  have  existed,  it  is  the  duty  of  the  jury  to  find  the 
defendant  not  guilty.  And,  by  a  recent  statute  of  this  Commonwealth,  — the  act 
of  iUst  Marcli,  1800,  known  as  the  *  Revised  Penal  Code,'  it  is  enacted  that  '  in 
every  case  in  wliich  it  shall  he  given  in  evidence  upon  the  trial  of  any  person 
charged  with  any  crime  or  misdemeanor  that  such  person  was  insane  at  the  time 
of  tlie  conunission  of  such  offence,  and  shall  be  acquitted,  tlie  jury  shall  be  re- 
quired to  find  specially  Avhether  such  person  was  insane  at  the  time  of  tlie  com- 
mission of  such  offence,  and  to  declare  whether  he  was  acquitted  by  them  on  tlie 
ground  of  such  insanity.'  This,  as  it  is  indicated  in  the  statute,  so  that  he  shall  be 
treated  and  provided  for  as  his  unlia,jpy  situation  and  the  safety  of  tli  commun- 
ity in  which  it  is  thus  ascertained  to  be  unsafe  to  let  him  go  at  large,  may  w- 
(luire;  and  such,  should  tlie  defence  set  up  in  this  case  prevail,  will  be  your 
duty. 

"Tlic  law,  gentlemen,  which  must  govern  your  inquiries,  and  to  which  you 
must  apply,  and  by  which  you  must  judge  of  and  pass  upon  tlie  facts  relied  upon 
to  establish  the  defence  of  insanity,  as  declared  by  all  the  judges  in  Engiaiul  in 
McXaghten^s  Case,  and  by  the  English  courts  ever  since,  and  by  almost  every 
American  court,  including  the  Supreme  Court  of  the  State  of  Penii»ylvania,  antl 
by  the  most  able  and  eminent  judges,  ainoit'i  them  Chief  Justice  Shaw,  of 
Massachusetts,  and  the  late  distinguished  Chief  Justice  Gibson,  of  Pennsylvania, 
and  in  the  words  in  which  we  have  felt  it  to  be  our  duty  lieretofore  to  state  it  to 
a  jury  in  a  capital  case,  is  this: 

"  '  Everyman  Is  presumed  to  >  >  sane,  and  to  possess  a  sufficient  degree  of  rea- 
son to  be  responsible  for  liis  crimes,  until  the  contrary  be  proved  to  the  satis- 
faction of  the  jury;  and  to  establish  a  defence  on  tlie  ground  of  insanity,  it  must 
lie  clearly  proved,  that  at  the  time  of  committing  the  act,  the  party  accused  was 
laboring  under  such  a  defect  of  reason  from  disease  of  tlie  mind,  as  not  to  know 
tlie  nature  and  quality  of  the  act  he  was  doing,  or  if  lie  did  know  it,  did  not  know 
that  he  was  doing  what  was  wrong.'  However  otliers  may  si»eculate,  it  is  the 
duty  of  a  jury  to  bring  the  evidence  to  this  test. 

"  Upon  this  general  subject,  we  state  to  you  the  law  as  applied  to  a  case  before 
tlie  judges  of  our  own  Supreme  Court  (three  of  them  present),  in  tlie  language 
of  riiief  Justice  Ginsox :  — 

"' Insanity  is  mental  or  moral;  the  latter  being  sometimes  called  homicidal 
mania,  and  properly  so.  It  is  my  purpose  to  deliver  to  you  tlie  law  on  this 
ground  of  defence,  and  not  to  press  upon  your  consideration,  at  least  to  an  un- 
usual degree,  the  circumstances  of  the  present  case  on  which  the  law  acts. 


1  2  I'lttsb.  r.0.;. 


304 


THE    LEGAL   TEST   OF    INSANITY. 


Notes. 


"  'A man  maybe  mud  on  all  subjects;  and  then,  though  he  may  have  glimmer- 
ings  of  reason,  he  is  not  a  responsible  agent.  This  is  general  insanity;  but  if  it 
is  not  so  great  in  its  extent  or  degree,  as  to  blind  him  to  the  nature  and  extent 
of  his  moral  dut}',  it  is  no  defence  to  an  accusation.  It  must  be  so  great  as  to 
entirely  destroy  his  percepti(jn  of  right  and  wrong;  and  it  is  not  until  that  ])cr- 
ception  is  thus  destroyed  that  he  ceases  to  be  responsil)le.  It  must  amount  to 
delusion  or  hallucination,  controlling  his  will,  and  making  tlie  eonnnission  of  the 
act,  in  his  apprehension,  a  duty  of  overwhelming  necessity.  The  most  apt  illus- 
tration of  the  latter  is,  the  perverted  state  of  religious  obligation,  wi'icli  has 
caused  men  sometimes  to  sacritlce  tlieir  wives  and  cliildrcn. 

•"Partial  insanity  is  confined  to  a  particular  subject,  the  man  being  sane  on 
every  other.  In  that  species  of  insanity,  it  is  plain  that  lie  is  a  responsible 
agent  if  he  were  not  instigated  by  his  madness  to  perpetrate  the  act.  He  con- 
tinues to  be  a  legitimate  subject  of  punishment,  although  he  may  have  been 
laboring  under  a  moral  obliquity  of  perception,  as  much  as  if  he  were  laboring 
under  an  obliquity  of  vision.  A  man,  whose  mind  squints,  unless  impelled  to 
crime  by  this  very  mental  obliquity,  is  as  much  amenable  to  punishment  as  one 
whose  eye  squints.  On  this  point  there  has  been  a  mistake  a.^  melancholy  as  it 
is  popular.  It  has  been  announced  by  learned  doctors,  that  if  a  man  has  the 
least  taint  of  insanity  entering  into  his  mental  structure,  it  discharges  him  of  all 
responsibility  to  the  laws.  To  this  monstrous  cxTor,  may  be  traced,  both  the 
fecundity  in  homicides,  which  has  dishonored  this  country,  and  the  immunity 
which  has  attended  them.  The  law  is,  tliat  whether  insanity  be  general  or  par- 
tial, the  degree  of  it  must  be  so  great  as  to  have  controlled  the  will  of  its  sub- 
ject, and  to  have  taken  from  him  the  freedom  of  moral  action. 

•'  'But  there  is  amoral  or  homicidal  insanity,  consisting  of  an  irresistible  in- 
clination to  kill,  or  to  commit  some  other  i)articular  offence.  There  may  be  an 
unseen  ligament  pressing  on  tlie  mind,  drawing  it  to  consequences  which  it  sees, 
but  cannot  avoid,  and  placing  it  under  a  coercion  which,  while  its  results  are 
clearly  perceived,  is  incapable  of  resistance.  The  doctrine  which  acknowledges 
this  mania  is  dangerous  in  its  relations,  and  can  be  recognized  only  in  the  clear- 
est cases.  It  ought  to  be  shown  to  have  been  habitual,  or  at  least  to  have  shown 
itself  in  mon;  than  a  single  instance.  It  is  seldom  directed  against  a  particular 
individual ;  but  that  it  may  be  so,  is  proved  by  the  case  of  the  young  woman  who 
was  deluded  by  an  irresistible  impulse  to  kill  her  child,  though  aware  of  the  hein- 
ous nature  of  the  act.  The  frequency  of  this  constitutional  malady  is  fortunately 
small,  and  it  is  better  to  contlne  it  within  the  strictest  limits.  If  juries  Avere  to 
allow  it  as  a  general  motive  operating  in  cases  of  this  character,  its  recognition 
would  destroy  social  order  as  well  as  personal  safety.  To  establish  it  as  a  justi- 
fication in  any  particular  case,  it  is  necessary  either  to  show  by  clear  proof  its 
contemporaneous  existence  evidenced  by  present  circumstances,  or  the  existence 
of  a  particular  tendency  developed  in  previous  cases,  becoming  in  itself  a  second 
nature.' 

•'  We  introduce  here,  and  answer,  the  written  points  submitted  by  the  pris- 
oner's counsel :  — 

1.  "  'The  court  are  requested  to  instruct  the  jury  that  if  they  believe  that  at 
time  of  the  killing  the  defendant  was  in  such  a  state  of  mind  as  to  be  unable  to 


mill 

sul. 

tliol 

by 

iiesl 

dim 


MORAL    INSANITY. 


305 


Commomvealth  v.  IMoore  —  Contimiod. 


jgnitioii 

ii  jiisti- 

Iroof  its 

cistcnce 

Sl'COlKl 

l(>  pris- 

Ithat  :xt 
iil)le  to 


iipply  the  test  of  right  and  wrong  to  tlio  particular  case,  he  is  not  a  responsible 
a^ent,  andtlio  vert   et  should  be,  n«)t  guilty.' 

"T'lisisthe  tester  criterion,  1u  passing  upon  evidence  of  the  existence  of 
iiisani'  :,  in  its  common  and  usual  forms,  to  a  degree  that  will  relieve  from  re- 
sponsibility; and  we  answer  the  point  in  the  afllrinati\e. 

2.  "  'The  court  are  requested  to  instruct  the  jury  that  if  they  believe  the  pris- 
oner t'>  have  been  governed  by  an  uncontrollable  impulse,  his  will  no  longer  iu 
subjection  to  his  reason,  owing  to  the  excited  and  continued  impetuosity  of  his 
tlioughts,  and  the  tumultuous  and  confused  condition  of  his  mind;  that,  goaded 
by  a  sense  of  grievous  wrong,  he  was  wrought  to  a  frenzy  bordering  upon  mad- 
ness, which,  for  the  time  being,  rendered  him  unable  to  control  his  actions  or  to 
direct  his  movements,  their  verdictshould  l)e  not  guilty.' 

"  We  are  at  some  loss  to  understand  what  is  meant.  If  the  point  is  predicated 
of  moral  insanity,  which  is  recognized  in  Moslcr^s  Case,^  and  which  we  recognize, 
\vc  adirm  it.  We  recognize  moral  insanity,  however,  as  they  did,  as  of  uncom- 
luon  occurrence,  and  evidence  of  the  existence  and  operation  of  which,  since  it 
cannot  be  tested  by  the  general  rule  applicable  to  the  connnon  and  usual  forms 
of  insanity,  is  to  be  received  and  passed  upon  in  view  of  the  cautions  suggested 
ill  the  case  referred  to.  If  tlie  pr)int  means  more  or  less  than  we  have  sup- 
posed, we  refuse  our  assent. 

"  You  will  incjuire,  then,  gentlemen,  whether  tl  e  prisoner  was  laboring  under 
moral  insanity,  and  iu  doing  so,  you  will  remeniL'T  the  cautions  suggested  in 
the  case  read.  Tlie  general  test  here  fails,  for  in  this  mania,  it  seems,  one  may 
be  drawn  on  to  consequences  which  '  he  sees,  but  cannot  avoid'  and  'be  aware 
of  the  heinous  nature  of  the  act.'  Tliere  is  little,  in  such  case,  to  distinguish 
il,  from  an  ordinary  criminal  act.  *To  the  eye  of  reason,  every  murderer  is  a 
niaihnan.'  In  the  commission  of  every  crime,  the  judgment  and  conscience  are 
overborne  for  the  time  by  temptation  to  evil,  acting  upon  the  wickedness  of  the 
li'.art,  and  exciting  the  evil  passions  to  overmastering  strength;  but  to  allow 
that  to  excuse,  would  be  to  make  crime  its  own  justification  and  evidence  of  its 
own  innocence,  and  to  strike  at  the  foundation  of  all  accountability.  It  is  well 
said,  therefore,  that  'the  doctrine  which  acknowledges  this  numia  is  danger- 
ous in  its  relations  and  can  be  recognized  only  in  the  clearest  cases.'  Tlie 
evidence  adduced  to  establish  it  should  be  sulijected  to  the  strictest  scrutiny. 
'It  ought  to  be  shown  to  have  been  habitual,  or  at  least  to  have  shown  itself  iu 
more  than  one  instance.'  'To  establish  it  as  a  justification  in  any  particular 
case,  it  is  necessary  cither  to  show  by  clear  proofs,  its  contemporaneous  exist- 
ence, evidenced  by  present  circumstances  or  the  existence  of  a  particular 
tendency,  developed  in  previous  cases.'  Is  there  such  proof  here?  Were  the 
shots  fired  at  tlie  deceased  without  discrimination  or  without  a  motive?  Had  a 
tendency  to  such  acts  been  developed  in  a  single  instance  in  the  whole  life  of  the 
prisoner  before  this  act  of  homicide,  or  has  it  been  since? 

"  If  the  prisoner  was  not  laboring  under  moral  insanity,  you    will   inquire 
whether,  upon  the  evidence  here,  he  was  laboring  under  mental  malady  of  any 

kind,  so  as  not  to  know  and  understand  the  nature  of  the  act  he  was  doing,  and 

that  it  was  wrong  and  would  subject  him  to  punishment.    And  we  propose  to 


1  4  Pa.  St.  264. 


20 


306 


THE   liKOAL    TEST   OK    INSANITY 


Nuti's. 


(lotain  you  butasliort  lime  longer,  with  a  few  observations  upon  tlie  evidence  in 
this  i)art  of  the  case. 

"  It  is  claimed  on  the  part  of  the  prisou'-r  tliat  his  appearance  and  conduct  on 
that  occasion,  explained  and  accounted  for  by  other  evidence  heard  in  lii>  belKill. 
evidenced  insanity.  The  witnesses  state  that  iie  was  wild  and  excited  in  lii> 
appearance,  violent  ia  his  gestures,  his  voice  raised  to  a  higli  and  i;nnat\ii;il 
liitcli,  and  heard  in  -i.  crying  tone,  and  his  expressions,  some  of  the  witnesses  say, 
were  incoherent.  The  witnesses  themselves  were,  of  course,  more  or  less  ex- 
cited, and  they  use  their  own  words  to  describe  his  conduct,  and  to  express  tlnir 
own  impressions.  Some  express  his  manner  and  appearance  as  '  exciteil,'  am! 
'wild;'  some  of  them  say  lie  was  in  '  a  frenzy.'  Thev  t.'.stify  that  he  swon 
profanely  and  used  also  low  and  vulgar  expressions  The  question  here  Is,  wa«. 
this  the  incoherent  raving  and  frenzied  conduct  of  a  niiuiiac,  or  one  at  tiic 
time  insane,  or  Avas  it  the  violence  of  one  excited  by  passion  and  seeking  re- 
venge? Was  It  insanity,  or  was  it  anger?  You  will  judge.  Violent  gesture^, 
loud  tones,  and  excited  looks  arc  the  natural  expressions  of  anger,  varying  in 
degree  with  the  temperament  of  the  person,  and  the  Intensity  of  his  passion. 
Profanity  seems  also  to  be  the  natural  language  of  angry  passion.  The  witnesses 
say  that  his  appearance  was  different  from  what  they  had  ever  noticed  it;  but 
none  of  them  had  ever  seen  him  angry.  Was  his  conduct  natural  or  otherwise, 
supposing  him  to  have  been  sane  and  to  have  sought  out  Marbourg  and  shot  him 
down,  in  revenge  for  an  injui-y?  If,  calm  and  unexcited,  and  as  the  witnesses 
had  always  before  seen  him,  or  with  a  smile  on  his  face,  instead  of  the  lire  of 
anger  in  his  eye,  he  had  met  Marbourg  and  shot  him  down,  without  anyassigiud 
or  known  motive,  and  turned  ai^jund  and  walked  calmly  away,  without  manifest- 
ing any  excitement  or  concern,  what  would  have  been  the  conclusion,  that  he 
was  sane  or  insane? 

"  It  is  claimed,  also,  that  his  appearance  and  conduct,  on  that  occasion,  were 
in  such  striking  contrast  with  his  hal)its  and  character  through  his  whole  lifr, 
as  to  exhibit  a  complete  transformation,  wliicli  is  only  reasonably  explained  on 
the  supposition  that  the  .sad  calamity  that  liad  befallen  him,  tlie  evidence  of 
wliicli  he  had  conllrmed  that  morning  by  the  confession  of  his  wife,  acting  upon 
an  excitable  temperament  for  a  week,  during  which  he  had  ate  and  slept  ijiit 
little,  had  dethroned  his  reason.  And  it  is  true  that  he  has  shown,  by  all  tlic 
witnesses,  not  merely  a  good,  but  a  very  good,  an  excellent  character.  It  lia- 
been  shown,  too,  that  he  has  long  lieen  a  regular,  punctual,  and  an  exemplary 
member  of  a  church;  an  elder,  occasionally  ofliciating  for  the  preacher  in  liis 
absence;  tliat  no  one  had  ever  heard  him  use  a  profane  or  vulgar  word,  or  any 
expression  which  might  not  be  used  in  any  company.  All  this  is  entitled  to  your 
consideration,  and  to  such  weight  as  you  think  it  deserves,  in  determining  the 
question  of  his  .sanity.  Is  it  probable,  the  inquiry  naturally  arises,  that  if  lu> 
reason  had  not  for  the  time  been  overthrown  he  would  have  acted  and  talked  in 
:i  manner  so  inconsistent  witli  his  Avhole  previous  life,  and  so  conti'ary,  appar- 
ently, to  his  very  nature,  as  exlubited  in  the  proof  of  his  excellent  character  a^ 
a  man  and  a  Christian.  And  yet  it  is  not  to  l)e  forgotten  tliat  men  of  tlie  iiio>t 
exalted  personal  and  religious  character  have  fallen  into  crime.  David,  who  wa- 
rt man  after  God's  own  heart,  was  guilty  of  a<lultery,  and  to  hide  it,  of  nuinUr. 
And  we  read  that  when  the  mob  had  taken  his  Divine  Master  before  the  high 


vidcufi'  ill 

onduct  Oh 
liis  l)flia'il. 
ti'd  ill   lii^ 

iiunatiira' 
K'ssi's  sa_\ , 
r  loss  tN- 
press  tlu'ir 
cited,'  ami 

lie  swoii 
LTC  is,  \va< 
jnc  at  till- 
i'el<ing  n - 
;  gestures, 

Viiryinu;  in 
s  passion. 

.'  WitUL'SSOS 

led  it;  bnl 
othorwisf, 
id  sliotliini 
)  witnessis 
the  lire  of 
kyassiiriud 
manifest - 
Ml,  tliat  he 

sion,  were 

whole  life', 

|)laiiied  on 

ideuce  nf 

ting  upoi' 

slept  \)\n 

by  all  the 

r.     It  lia< 

exemplary 

her  in  his 

rd,  or  any 

L'd  to  your 

liniiig  thi' 

hat  if  iii> 

talked  in 

y,  appar- 

iracter  a» 

the  most 

who  wa'^ 

f  murder. 

tlio  high 


M.OKAL    INSANITY 


307 


Coimnoiiwealth  v.  Moore  —  Contiinied. 


|)rie.>t,  '  I'eter  sat  without  in  the  i)alace,  and  a  duiusei  came  unto  liini  sayill^, 
lliou  also  wast  with  Jesus;  but  he  tlenied  before  them  all,  saying,  I  know  not 
wliat  thou  sayest.'  lie  was  accused  by  anotlier,  '  and  again  he  denied  with  an 
oath,  saying,  I  know  not  the  man.'  And 'after  a  while  they  that  stood  liy 
accosted  him  with  tlie  same  accusation;  then  began  he  to  curse  and  swear,  say- 
ni'S,  1  know  not  the  man.'  lie  soon  afterwards  '  went  out  and  wept  bitterly.' 
I'.ler  was  guilty  of  lying  and  profanity.  It  was  conduct  grossly  inconsistent 
with  ids  religious  character;  but  it  is  not  intimated  that  he  was  iii.sane.  The 
Sa\  ior,  '  who  knew  what  was  in  the  lieart  of  man,'  said  to  his  followers,  '  watch 
and  pray  that  ye  enter  not  into  temptation.'  And  an  apostle  said,  '  let  him  that 
tliiiiketh  he  standeth,  take  heed  lest  he  fall.'  Such  is  human  nature,  tliat  a  good 
diaracter  is  no  certain  guaranty  that  its  possessor  may  not  fall  into  sin,  and  i)Ut 
feeble  evidence  against  clear  proof  of  guilt.  Still,  we  commend  this  evich^iice  tn 
yunr  consideration  upon  this  question  of  insanity,  and  you  will  allow  it  all  the 
weight  you  think  it  merits  in  the  i)risoner's  behalf. 

"  It  has  also  been  shown  that  one  of  the  prisoner's  brothers  is  insane,  and  has 
l)een  a  raving  maniac  for  twenty-eight  or  tliirty  years;  and  that  he  has  a  sister 
wlu),  as  some  of  the  witnesses  expressed,  is  a  weak-minded  woman,  Slie  is 
married  and  has  children,  but,  in  the  opinion  of  some  of  the  witnesses,  is  not 
capable  of  giving  proper  attention  to  her  cliildren  and  her  domestic  affairs. 
Tliis  evidence  was  offered  and  received  to  show  a  hereditary  taint.  Insanity  is 
no  doubt  a  hereditary  disease,  which  may  appear  and  reappear,  overlapping 
.sometimes  a  generation;  and  proof  of  its  existence  in  a  family  is  pertinent  evi- 
dence on  a  question  like  tills.  The  evidence  here,  however,  going  no  further 
than  we  have  stated,  is  very  sliglit.  It  does  not  appear  that  his  parents  or  any 
of  his  ancestors  have  been  insane,  or  any  of  the  family  except  one  brother.  But 
if  such  proof  were  made,  the  force  of  it  woidd  only  be  to  show  a  liability,  or  a 
predisposition  at  most,  to  the  disease.  That  is  not  the  disease.  If  a  hereditary 
taint  were  established,  it  might  aid  in  solving  the  question,  whetlier  his  unusual 
conduct  is  most  reasonably  ascribable  to  insanity  or  auger.  You  will  judge 
whether  this  evidence  sheds  any  light  on  the  question. 

"  We  all  I'emember,  too,  that  the  prisoner  became  suddenly  ill  here  in  this  room 
un  last  Friday,  and  it  has  been  sliown  that,  after  he  was  taken  to  the  jail,  lie  was 
lahiiring  under  delirium,  and  was  for  a  short  time,  frenzied  and  raving.  He 
iiuauined  there  were  persons  there  trying  to  injure  him,  and  he  wanted  the 
>lieriff  sent  for  to  protect  him,  when  the  sheriff  was  there  trying  to  calm  him. 
lie  wanted  to  see  his  son  when  his  son  was  present.  He  fancied  they  wanted  to 
.shout  him,  and  that  he  saw  blood  on  his  breast.  He  continued  in  that  state  near 
lialf  an  hour,  when  he  fell  asleep  and  awoke  rational.  This  Avas  delirium  're- 
sulting,' as  Dr.  Bunn  testitles,  'from  depression  following  higli  nervous  excite- 
uient,  and  resembling  mania  apotu.''  During  its  continuance,  there  can  be  no 
lioulit  he  would  not  have  been  responsible  for  any  act  done  by  him.  But  the 
<|Uestion  is  not  what  was  his  condition  on  Friday,  Init  on  the  12th  of  Fel)ruary, 
when  he  shot  Marbourg.  The  evidence  has  no  other  bearing  on  this  question 
than  as  it  may  tend  to  show  the  existence  of  some  predisposition  to  delirium  or 
mania,  nnder  like  circumstances,  and  from  a  similar  cause  and  of  the  same  charac- 
ter He  had  been  under  excitement  a  week  before  the  homicide,  this  fact,  with 
the  evidence  now  under  consideration,  it  is  argued,  explains  and  accounts  lor 


308 


THE    LEGAL   TEST   OF   INSANITY. 


Notos. 


his  conduct  at  that  time.  It  is  not  madu  to  appear  tliat  he  labored  under  any 
delusion  tlien,  lie  was  dealing  witli  a  real  character  and  for  a  reason  tlun 
given.  To  the  excitement  up  to  that  time  was  added  tliat  of  the  tcrrilile  tragedy, 
of  everything  tiiat  has  followed  to  lum,  and  of  this  trial,  and  yet  wo  do  not  learn 
that  lie  had  any  mania  or  delirium  during  "the  Intervening  montli.  That  mania, 
loo,  results  from  and  follows  excitement;  wliile  he  was  under  high  excitenieni 
at  the  time  of  tlie  homicide.  It  is  to  lie  remarlved,  also,  tliat  in  mania  a  potu, 
with  wliicli  Dr.  Bunii  classes  it,  the  patient  is  not  tierce,  1)nt  fearful;  liis  delu- 
sion ix'ing  apprehended  danger  to  himself,  which  he  is  trying  to  escape;  and  so 
it  was  with  him  on  Friday. 

"  On  the  other  hand  it  is  urged  tliat  the  prisoner,  during  the  whole  of  tiu' 
week  before  the  liomicide,  was  ferreting  and  trying  to  ascertain  the  trutli  of  thr 
reports  concerning  his  wife  and  tlie  deceased;  going  from  one  person  to  another, 
and  from  place  to  place,  as  he  discovered  some  new  source  of  information ;  com- 
paring statements  and  noticing  discrepancies  in  his  efforts  to  get  at  tlie  trutli,  as 
counsel  would  prepare  a  cause;  that  after  having  satisfied  himself  of  tlie  trutli 
of  the  reports,  he  provided  the  loaded  pistol,  and  went  to  the  ^'icinity  of  the  post- 
office,  where,  as  it  is  alleged,  he  expected  to  find  the  deceased;  waited  and 
watched,  lying  in  wait  for  him  in  Welin's  store,  as  it  is  also  alleged,  till  lie 
passed ;  followed  hiin  to  tlie  post-oHice,  and  shot  him  down  —  what  he  declared  lie 
would  do  if  lie  found  the  report  to  be  true,  and  giving  that  reason  for  it  at  the 
lime  and  afterwards.  In  all  this  it  is  argued  against  the  prisoner,  he  was  fol- 
lowing out  and  executing  a  deliberately  formed  and  repeatedly  declared  purpose, 
reasoning  at  every  step,  and  knowing  and  understanding  what  he  was  about. 
It  is  urged,  also,  that  he  afterwards  went  to  the  oHice  of  Irwin  Rutlcdge,  Es(|., 
knowing  where  it  was,  and  tliat  he  was  a  magistrate;  stating  to  him  tliat  he  had 
shot  Marbourg,  and  had  come  to  surrender  himself  into  tlie  hands  of  tlie  law. 
expressing  at  the  same  time,  his  belief  that  God  would  forgive  him,  and  his  will- 
ingness to  be  tried  by  a  jury  of  his  countrymen.  Tliis,  it  is  argued,  all  clearly 
shows  that  lie  knew  at  the  time  the  nature  and  consequences  of  the  deed,  and 
understood  before  wliat  tribunal  he  was  answerable  for  it. 

"  You,  gentlemen  of  the  jury,  will  take  into  careful  consideration  tlie  wliole 
evidence,  and  determine  the  prisoner's  responsibility,  that  is  all  we  have  to  say 
to  you. 

"  If  you  find  tlie  prisoner  guilty,  you  will  state   in  your  verdict  the  degree  of 
his  crime,  or  of  what  you  find  him  guilty.    If  you  find  him  not  guilty  on  the 
ground  of  insanity,  the  only  ground  on  which  you  can  acquit  him,  it  will  be  your 
duty  to  state  tliat  you  find  he  was  insane  at  the  time  of  the  commission  of  the  act 
and  that  you  acquit  him  on  that  ground." 

But  these  latter  cases  are  simply  the  charges  of  trial  judges,  and  are  of  no 
value  as  authority,  where  they  confiict  with  tlie  rules  laid  down  on  the  same  sub- 
ject by  the  courts  of  last  resort  in  the  same  States. • 

§2').  Doctrine  of  "Moral  Insanity  "  Disapproved. — The  courts  of  several 
States  have  expressly  repudiated  this  doctrine.  In  Georgia  it  is  said  that  moral 
insanity  has  no  foundation  in  the  law,  and  will  not  be  permitted  as  a  defence  to 


1  See  ante,  pp.  234,  259. 


DOCTUINE   OF    MORAL    INSANITY    DKSAI'I'KOVKI> 


'.WJ 


In  most  of  the  Statess. 


;tl  under  any 
reason  then 
ibie  trajfedy, 
do  not  learn 
That  mania, 
1  excitement 
lania  a  putu, 
il;  his  dchi- 
ape;  and  so 

diole  of  tlic 
trutli  of  the 
1  to  another, 
itioii;  coni- 
:lie  triitii,  as 
of  tlie  trutli 
of  the  post- 
waited  and 
?ed,  till  he 
;  declared  he 
'or  it  at  till' 
lie  was  fol- 
•ed  purpose, 
was  about, 
cdire,  Es(i., 
that  he  had 
of  the  law. 
lid  his  will- 
,  all  clearly 
i  deed,  ami 

the  whole 
lave  to  say 

;  degree  of 

ilty  on  till' 

'ill  be  yonr 

of  the  act 

are  of  no 
same  sub- 


of  several 
that  moral 
defence  to 


a  crime.'  In  Spannw  *S7rt(e,*  the  Rnpreine  Court  of  that  State  said:  "The  evi- 
dence in  this  record  discloses  the  undoubted  fact  that  tlic  defendant  and  Eber- 
liart,  a  girl  living  in  tlie  house  willi  him,  killed  Ids  wife  by  strangling  and 
brealiing  lier  neck  with  u  rope  wlicn  she  was  lying  on  her  bed  asleep;  that  after 
they  had  killed  her,  they  lieated  water  and  attempted  to  obliterate  the  marks  of 
the  rope  around  the  neck  of  the  deed  woman,  but  the  more  they  washed  it  the 
plainer  the  marks  appeared;  that  then  the  parties  fled  to  the  State  of  Alabama, 
were  pursued,  and  defendant  was  found  in  Coffee  County,  cliopping  cotton  in  the 
cotton  patch  of  one  Harris.  When  defendant  was  arrested  by  those  who  pursued 
him  he  asked  them  what  authority  they  had  to  arrest  him  out  of  the  State.  Tlie 
motion  for  a  new  trial  in  this  case  is  based  mainly  on  newly  discovered  evidence, 
since  the  trial,  of  the  defendant's  insanity,  and  tlio  aflldavits  of  several  doctors 
have  been  procured  who  have  examined  him  since  the  trial,  and  some  of  whom 
knew  him  before  the  trial,  and  they  give  it  as  their  opinion  tiiat  the  defendant  is 
atllicted  with  moral  insanity.  There  are  also  aflldavits  of  other  j)ersons,  not 
doctors,  who  liave  known  the  defendant,  who  state  that  he  is  a  dull,  weak- 
minded  man.  If  we  are  to  understand  by  '  moral  insanity  '  that  the  defendant 
was  so  depraved  that  he  Avas  regardless  both  of  the  laws  of  God  and  man,  as  the 
enormity  of  his  crime  would  induce  most  people  to  believe,  then  the  import  of 
the  words,  moral  insanity,  requires  no  further  explanation;  but  if  moral  insan- 
ity is  to  be  understood  as  that  species  of  insanity  Avliicli,  in  tin  sense  of  the  law, 
will  excuse  the  defendant  from  the  commission  of  the  crime  with  which  he  is 
charged,  then  it  is  a  great  mistake  on  the  part  of  those  who  insist  on  it.  The 
insanity  which  the  law  recognizes  as  an  excuse  for  crime,  must  be  such  as  de- 
thrones reason  and  incapacitates  an  individual  from  distinguishing  between  right 
and  wrong.  There  is  not  one  of  tlie  attldavits  in  this  case  containing  the  newly 
discovered  evidence,  including  all  the  doctors,  wlio  venture  to  state  that  the  de- 
fendant did  not  liave  sullicient  reason  and  capacity  to  distinguish  right  from 
wrong  at  the  time  the  crime  with  which  he  is  charged  was  committed,  and  that 
is  the  fatal  defect  of  all  the  e\i(lence  contained  in  the  record,  in  support  of  the 
motion  for  a  new  trial.  The  defendant  had  sutHcient  reason  and  capacity  to 
attempt  to  o))literate  tlie  marks  of  violence  from  the  neck  of  his  dead  wife,  and 
to  fiee  from  the  State  with  his  paramour  after  he  liad  committed  the  crime;  and 
lie  had  sullicient  reason  and  capacity  to  demand  of  his  pursuers  Ijy  what  author- 
ity they  arrested  him  out  of  the  State  where  the  crime  was  committed,  The 
records  of  tliis  court,  we  are  quite  sure,  do  not  furnish  a  more  agLcravated  case 
of  cool,  deliberate  murder  than  the  one  now  before  us,  and  we  shall  not  inter- 
fere with  the  verdict  of  the  jury  which  finds  the  defendant  guilty  of  that  crime. 
Let  the  judgment  of  the  court  below  be  alHrmed." 

And  the  doctrine  of  moral  insanity  has  been  expressly  disapproved  in  North 
^irolina,''  Michigan,*  and  Alabama;  ^  also  in  the  other  States  where  the  right 
iind  wrong  test  is  recognized. 

In  Ueg.w  Haynes,'^  the  prisoner,  a  soldier,  was  tried  before  Bk.\mwkll,B.,  for 
tlie  murder  of  Mary  MacGowan.  The  deireased  was  an  unfortunate  woman, 
with  whom  the   prisoner  had    been  intimate.     No   motive   was  assigned    for 


'  Choice  V.  State,  31  Ga.  424  (18<iO). 

MTGii.  .-Mii  (1S7:{). 

'  Stale  V.  Bi-aiidon,  8  Jones  L.  403  (18G2). 


^  People  r.  Finley,  HS  Mich.  4S;)  (ItiTS). 
6  Boswell  V.  State,  C:J  Ala.  307  (IST'.t)- 
«  1  F.  &F.  666(l!j5'.»). 


310 


THE   LEGAL   TEST   OF   INSANITY. 


Notes. 


the  pcrpotrntion  of  tlio  net,  and  gcnoral  evidence  was  given  that  tlie  prisoner, 
while  in  Canada,  havln;^  sednced  a  yo»ins  woman  under  a  promise  of  murriaiic, 
which  lie  had  l)een  unahlc!  to  fuUll,  hy  reason  of  his  rej^lment  having  been  onlen  il 
lioMic,  his  mind  had  been  much  affected  by  the  circnmstanee.  Hit.vMWKi.i.,  J{., 
charsied  the  jury  as  follows:  "  It  has  l)eeii  urijed  for  the  prisoner  that  j'ousliouM 
ac(|uit  him  on  the  liround  that  it  bciu'j;  impossible  to  assiixn  any  motive  for  tin 
perpetration  of  the  offence,  lu?  must  have  been  actinj:;  under  what  Is  calloil  ;i 
l)owerful  and  irresistible  Inllui'nce  or  homicid.nl  tendency.  But  I  must  rennirk 
iis  to  that,  that  the  circumstance  of  an  act  bcinii  a])i)arently  motiveless  is  not  ;i 
irround  from  which  you  can  safely  infer  the  existence  of  such  an  inlluence.  Mo- 
tives exist  unknown  and  immmerable  which  miirht  prompt  tlic  act.  A  morl)iil 
and  restless  (but  resolute)  thirst  for  blood  would  itself  beanu)tiv(!  uruiiiii  td 
>ncli  a  deed  for  its  own  relief.  Hut  if  .•lu  influence  l)e  so  powerful  as  to  be  Icniiril 
irresistible,  so  much  the  more  reason  is  there  why  we  should  not  withdniw  ;iii) 
of  the  safeguards  tending;  to  counteract  it.  Tliere  are  three  powerful  reslraiiit^ 
existini;,  all  teudiuii  to  the  assistance  of  the  person  who  is  suffering;  under  such 
an  influence  —  the  restraint  of  religion,  the  restraint  of  conscience,  and  the  re- 
straint of  law.  But  if  the  influence  itself  be  hcdd  a  lej?al  excuse,  renderinji  the 
crime  dispunishable,  yo\i  at  once  withdraw  a  most  powerful  restraint  —  ihat  for- 
bidding and  punisliinii  its  perpetration.  We  must,  tlierefore,  return  to  the  siiii- 
ple  question  you  have  to  determine;  did  the  prisoner  know  the  nature  of  the  ad 
III  was  doiuir,  and  did  he  know  tliat  he  was  doinji  what  was  wronij?  "  The  pris- 
oner was  found  iiuilty. 

In   Jicff.  V.  Burton,^  tried  before   Wic.iitmax,  .1.,   in    I8t;;3,  the   prisoner  wa- 
indicted  for  the  nnirder  of  a  boy,  and  the  learned  judge  instructed  the  jury  a> 
follows:  <'As  there  was  no  doubt  about  the  act,  the  only  question  was  whether 
the  prisoner,  at  the  time  lie  committed  it,  was  in  such  a  state  of  mind  as  not  to 
be  resi)onsil)le  for  it.    Tlie  prisoner's  account  of  it  was  that  he  liad  done  it  from 
a  morbid  feeling;  that  he  was  tired  of  life  and  wished  to  be  rid  of  it.     No  doubt 
j)risoners  iiad   been  ac(|Uitted  of  murder  on  the  ground  of  insanity;  but  the 
(piestion  was,  what  were  the  cases  In  which  men  were  to  be  absolved  from  re- 
sponsibility on   that  grqunil?     HddfiaUVs   Case  differed  from   the   present,  for 
there  wounds  had  been  received  on  the  liead  which  were  proved  to  liave  injund 
tlie  brain.    In   tlie  more   recent  case  of  McXiajhten  the  judges  had  laid  down 
the  rule  to  Iks  that  there  must,  to  raise  tlie  defence,  be  a  defect  of  reason  from 
disease  of  the  mind,  so  as  that  the  person  did  not  know  tlie  nature  and  (|uaiit\ 
of  the  act  he  committed,  or  did  not  know  whether  it  was  riglit  or  wrong.     Nnu 
to  apply  this  rule  to  the  present  case  would  be  the  duty  of  the  jury.     It  was  iioi 
mere  eccentricity  of  conduct  which  made  a  man  legally  irresponsible  for  lii> 
acts.    The  medical  man  called  for  the  defence  defined  homiciilal  mania  to  be  ;i 
propensity  to  kill,  and  described  moral  insanity  as  a  .state  of  mind  under  which  :\ 
man,  perfectly  aware  that  it  was  wrong  to  do  so,  killed  another  under  an  uncon- 
trollable impulse.    This  would  appear  to  be  a  uiost  dangerous  doctrine,  and 
fatal  to  the  interests  of  society  and  security  of  life.    The  question  is  whether 
such  a  theory  is  in  accordance  with  lawl'    The  rule  as  laid  down  by  the  judges 
is  (juite  inconsisx'nt  with  such  a  vi<'w,  for  it  was  tliat  a  man  was  responsible  for 


\ 


'■& 


I 


'  3  I'.  At  F.  --•!. 


>IOI!AL    INSANITY    NOT   KIX  0<i\IZi:U    1\    F.NOLANIi. 


.'HI 


No  Ti'st  Adopted  in  New  niiiiipshlri;. 


e  prlsoiK-T. 
f  intirriaiic, 

'Oil  OrdlM'rd 
MWKl.l.,  ]{., 

youfslioiiM 

vo  for  till 

is  calloil  ,■! 

1st   rciiiaik 

'ss  is  Hot  ;i 

nee.     ]\I(i- 

A  inni'hiil 

uruiim  til 

I  hv  tcniu'il 

iidraw  wwK 

I'cstraints 

llUkT  Mich 

11(1  llic  rc- 
doriiijr  the 
-  tlitit  for- 
")  tll(!  .siiii- 
of  tlu'  act 
Tiic  pris- 
oner Ava>. 
10  jury  a> 
s  ■niictlier 
as  not  to 
le  it  from 
No  doiib) 
;  but  the 
from  ro- 
L>sont,  for 

0  injured 
aid  down 
■;on  from 
d  (luaiil) 

i£.      NiiW 

,  was  iiDi 
;  for  Li> 
a  to  be  a 
•  uiiicli  a 

1  iiucou- 
ino,  and 
wliotlier 
?  judges 
sible  for 


his  actions  if  lie  Iviiew  tlio  diftVroiioo  botweon  risilit  and  wroinj;.  It  was  iiijiod 
'liat  llie  prisoner  did  tlio  act  to  bo  liaiijicd,  and  so  was  under  an  insane  delusion, 
lilt  what  iloliision  was  lie  under?  So  far  from  it,  it  .showed  that  lie  was  ([uito 
.  uiiscious  of  tlio  nature  of  tlio  act,  and  of  its  oonsefiuences.  lie  was  supposed 
to  desire  to  )»o  liaiiiii'd,  and  in  order  t<!  obtain  tlio  object  cominilled  niiirder. 
'I'iiat  mi<;ht  show  a  morbid  stale  of  mind,  lint  not  delusion.  Homicidal  mania, 
ai'ain,  as  described  by  the  witnesses  for  tlio  defence,  .-liowed  no  delusion,  it 
iiienly  sliowetla  morliid  desire  for  l)l()od.  Delusion  meant  tlio  lielief  in  wlial 
did  note.\ist.  Tlu-  (luestion  for  tlio  jury  was,  whether  tlus  prisoner  at  the  time 
'le  comiiiilted  the  act  was  lab(jrin,u;  uiidi'r  such  a  six'cies  of  Insanity  as  to  he  iiii- 
iiware  of  tlio  nature,  tlu;  character,  or  tlio  consequoiiccs  of  the  act  he  I'ommitted. 
Ill  other  words,  whether  lie  wa.s  incapable  of  icnowinj:  tluit  what  he  did  was 
wroiijr.  If  so,  they  should  ac(piit  him;  if  otherwise,  they  should  llnd  a  vi'rdict 
of  iiuilty."  Venlict,  j:;iiilty.  Tlio  prisoner  was  executod,  liaviiii^  previously 
a(  knowlediicd  Ids  criiiio  and  responsibility. 

"  The  law,"  said  Jiaron  Ai.dkuson,  in  Jlnj.  v.  I'atc,^  "  does  iiotacknowiedsc  t'.ie 
doctrine  of  anunconlrollablo  impulse,  if  the  person  was  aware  it  was  a  wront;  act 
lie  was  about  to  commit.  A  man  miuilit  say  ho  picl^t'd  a  pock(;tfroiii  some  uneoii- 
irollablc  impulse,  and  in  that  case  tlio  law  would  have  an  iineontrollaldo  impulse 
)i)  imnish  him  for  it."-' 

(>  2(1.  The  New  Hampshire  Rule— No  Test— State  v.  Pike.— Finally  tlu; 
ciiwrts  of  New  liampshire,  ami  some  otlior  Stiites,  unable  to  llnd  a  satisfac- 
lury  one,  have  discarded  ail  tests.  In  State  v.  Pike,^  tlio  prisoner  lioinu;  indicted 
f'lr  the  murder  of  one  IJrown,  hiscounscd  claiinodthatho  was  irresponsibleby  roa- 
>i in  of  a  species  of  Insanity  called  dipsomania.  The  court  instructed  the  jury 
that  "  if  they  found  tliat  the  prisomr  killed  IJrown  in  a  manner  that  would  bi' 
riimiiiai  and  unlawful  if  he  was  sane,  their  verdict  should  be  '  not  guilty  liy  roa- 
-<iu  of  insanity,'  if  the  killint?  was  the  offsprin^j;  or  product  of  mentai  disease  in 
!iu;  defendant;  tiiat  iioitlier  delusion  nor  kiiowled,u;e  of  riiilit  and  wroni?,  nor  do- 
siL'n  or  cunning  in  iilanning  and  executing  the  Ivilling  and  escaping  or  avoiding 
detection,  nor  ability  to  recognize  acquaintance  or  to  labor  or  tmnsact  business 
IT  nianago  affairs,  is,  as  a  matter  of  law,  a  test  of  mental  disea.se,  but  that  all 
symptoms  and  all  tests  of  mental  disea.se  are  purely  matters  of  fact  to  l)e  doter- 
iiiiiied  by  the  jury;  that  whether  there  is  such  a  mental  disease  as  diiisomania, 
ami  whether  defendant  liad  that  disease,  and  whether  tlie  killing  of  IJrown  was 
the  productof  such  disease,  were  questions  of  fact  for  the  jury."  On  appeal  this 
instruction  was  allirmed. 

•5  27. State  v.  Pike  —  Elaborate  opinion  of  Doe,  J.  —  Mr.  Justice  Dok, 

wiiilo  dissenting  from  the  opinion  of  the  court  on  other  points,  delivered  an 
eliiborate  opinion  in  favor  of  the  charge  of  the  court  below  on  this  point:  — 

"The  defendant's  exception,"  said  he,  "  to  the  instructions  given  to  the  jury 


1  Hcnnett  &  Heard's  Ld.  Cas.  Crini.  Law, 
liW. 

-  And  see  Reg.  v.  Rowler,  .54  An.  Reg.  310. 
Martin's  Case  and  Reg.  v.  Rrixey,  both  cited 
inl  IJennett  &  Heard's  Leading;  Cas.  Orim. 
I^aw,   are   instances   of     insane   delusions 


which  were  the  cause.?  of  the  crimes  com- 
mitted, one  the  burning  of  York  C'atliedral, 
the  other  the  murder  of  a  cliild.    In  both 
cases  the  prisoners  were  acquitted. 
'  4!1N.H.  399  (1870). 


,'512 


TIIK    Li:(JAL   TKST   OF    INSANITY 


Notes. 


ill  relation  to  lils  iv.s|)oii.sll)lllty  iis  affected  by  (ll|)soiiitinia,  raises  tl>c  general 
question  of  tile  ieiial  tests  of  insanity;  for  if  tiie  instrnelioiis  iriveii  upon  ilipso- 
nianla,  are  eorrt'et,  tiiey  wouiil  l)e  correct  wiien  given  upon  any  otiier  ullejjed 
form  of  Insanity. 

"If  l<no\\  le(l:re  of  rlirlit  and  wrontr,  or  delusion,  is  tlie  test  in  otlier  aliejieil 
forms  of  insaidty,  knowledge  and  delusion  must  Ik'  the  test  in  aileifed  dipso- 
mania. Tlio  eorreetnesM  of  all  tiio  instructions  j;iven  on  tl»e  te.sts  of  mental 
dl.sease,  is  involved  in  tiieexceptlon  taken  hy  the  defendant. 

"This  was  the  llrsl  instance  in  whieli  siicii  instructions  were  over  Kiv»'n;  Imt 
they  an;  an  application  of  ancient  and  fundamental  principles  of  tliu  counnoii 
law.  A  i)ro(luct  of  mental  disease  isnotaeontract,  a  wlllora  crime;  andtlie  tests 
of  mental  disease  are  matters  of  f.act.'  Tried  hy  the  stanthird  of  lenal  prece- 
dent, t'lvj  instruclinns  aro  wronu;;  tried  l)y  the  standard  of  le;;al  principle,  they 
are  rii^lit.  We  iiave  come  to  a  point  where  we  can  plainly  .see  that  tlie  paths  of 
precedent  and  principle  diverge,  and  wliere  we  must  choose  between  them.  In 
makinit  our  choice  there  are  various  considerations  wlucii  weaken  the  attraction 
of  precedent 

".V  slrikiu!;,  conspicuous  want  of  success  lias  attended  tlie  efforts  made  to  ad- 
just the  lei^ai  relations  of  nieulal  disease.  In  rei^ard  to  tlu;  validity  of  a  contriiel 
as  affected  l)y  insanity,  tlie  autliorities  have  l)e{  n  contlictint^  and  vaciliatinu'. 
Littleton  says:  '•  No  man  of  fidl  a;j:e  sliail  be  received  in  any  plea  by  tlu;  law  to 
disable  his  own  pi-rson.' ■'  Coke  says:  'Tiiere  have  been  four  several  opinions 
concerning  the  alienation  or  other  act  of  a  man  that  is  non  conipDS  ineiUis,  etc. 
For,  first,  some  are  of  opinion,  tiiat  he  may  avoid  his  own  act  by  entry  or  plea. 
Secondly,  others  are  of  opinion  tliat  iie  may  avoiil  it  by  writ,  and  not  by  plea. 
Thirdly,  others,  tli;it  lie  may  avoid  it  citlier  by  plea  or  I)y  writ;  and  of  this 
opinion  is  Fit/.iierl)ert  in  his  N'atttm  lircinum.  And  Littleton  here  is  of  opinion, 
tliat  neither  by  i)lea,  nor  l)y  writ,  nor  otlierwise,  he  iiimself  siiail  avoid  it,  but 
his  lieir  siiall  avoid  it  by  entry,  plea  or  writ.  And  iierewitii  tiie  y;reatest  autliori- 
ties of  our  books  ujiree;  and  so  was  it  resolved  with  Littleton  in  Bcverlt/s  Caxc, 
where  it  is  said,  tiiat  it  is  a  maxim  of  tlie  common  law,  tlmt  tiie  party  sliail  not 
disable  himself.'*  '  Hy  tlie  law  of  EiiLtiand  no  man  sliali  avoid  his  own  act  by 
reason  of  tliesc  defects.'*  Blackstone  says:  '  Tiie  king,  indeed,  on  liehalf  of  an 
idiot,  may  avoid  liis  grants  or  other  acts.  But  it  hath  been  said  tiiat  a  non  com- 
j)os  himself  .shall  not  be  permitted  to  allege  liis  own  insanity  in  order  to  avoid 
sucii  grant;  for  tliat  no  man  sliail  l)e  allowed  to  stultify  himself  or  plead  his  own 
disability.  Tlie  progress  of  this  notion  is  somewliat  curious.'  lil.ackstone  gives 
its  history,  sliowing  that  it  did  not  prevail  in  the  time  of  Edward  L ;  tliat 'un- 
der Edward  III.  a  scruple  bt'gaii  to  arise  wliether  a  man  should  be  permitted  to 
blemish  himself  liy  pleading  Ids  own  insanity;  and  afterwards,' it  was  douiited 
wliether  a  plaintiff  wlio  had  executed  a  release  since  tlie  commenccmont  of  his 
suit,  and  who  was  taken  to  be  sane  at  its  commencement,  and  at  tlie  time  of 
pleading,  siionld  be  permitted  to  plead  an  intermediate  dci)rivation  of  reason  ex- 
isting at  tlie  execution  of  tlie  release,  '  and  the  (piestion  was  asked  how  he  came 
to  rememlier  the  release  if  out  of  his  senses  when  he  gave  it.  Under  Henry  VI. 
tills  Avay  of  reasoning  was  seriously  adopted  by  tlie  juiiges,  and  fi'oin  tliese  loose 
authorities,  wiiieli  Fitzlierl)ert  does  not  scruple  to  reject  as   being  contrary  to 


re 

an 


1  Board ni.inc.  Woodinan,  17  N.  II.  117-150. 

=  Co.  i.ii  nc. 


■■•■  Co.  Lit.  247.  b. 
*  1  Hale  1'.  (  .  •:'.). 


NO   TKST    IN    NKW    IIAMI'SIIIUK. 


3i;j 


Mr.  Just  let'  Dof's  (»i)iniiin. 


lit'  Kf'iicral 

poll    llipSd- 

licr  iillfjrt;,! 

her  allc^jcil 
:it'<l  (li|iso. 
of   incntul 

sflvoii;  hut 
t>  coiiiiiion 
idtlio  tests 
liiil  prccc- 
:iplo,  tlicy 
c!  paths  of 
tht'iii.  In 
attraction 

ulo  to  ad- 

II  contract 

acillatinir. 

ho  law  to 

opinions 

nntis,  olc. 

y  or  plea. 

;  by  plea. 

1  of  this 

opinion, 

id  it,  l)ut 

anthori- 

>fs  Cnnc, 

shall  not 

u  uct  Ijy 

ilf  of  an 

ion  com- 

to  avoid 

his  own 

lie  gives 

lat  '  uii- 

itted  to 

Lloiil)te(I 

t  of  Ills 

time  of 

son  ex- 

10  came 

nry  VI. 

e  loose 

;rary  to 


reason,  tlie  maxim  that  a  man  sliall  not  stultify  hl.ii'^elf,  hath  hccii  lianded  down 
as  settled  law.'  i 

"  In  ITti",  I-oi'd  M.\\sfii;m>  stated  the  law  tiius;  '  II  iiath  boon  said  to  l)e  'a 
maxim  tliat  IK)  man  can  plead  his  Iteiiii;  a  iiiiiatlc  to  avoid  a  deed  executed,  or 
vxeiiso  an  iieL  doiu;  at  tliat  time,  l>ecanse,'  il  is  said,  '  if  lie  was  a  lunatic 
lie  could  not  remember  any  action  lie  had  done  diirlmj!  tlic  period  of  his 
insanity,'  And  tlds  was  tlie  doctrine  formerly  laid  down  l>y  some  jndifes; 
but  I  am  p;1ad  to  lliid  that  of  late  it  liath  i)een  generally  exploded;  for  the 
reason  assiuned  for  It,  Is,  In  my  opinion,  wliolly  liisiilllcieiit  to  .support  It; 
Ijecansc,  though  he  could  not  rememlier  wliat  passed  during  Ids  insanity,  yet  lie 
might  justly  say,  if  he  ever  executed  siu'ii  a  <\'ed,  or  did  sncii  an  action,  it  must 
liave  lieen  during  ids  conlluemeiit  or  lunacy ,  for  he  did  not  do  il  eitlier  before  or 
since  that  time.  As  to  the  case  In  which  a  man's  plea  of  Insanity  was  actually 
set  aside;  it  was  not  more  than  till'  ;  It  was  when  they  pleaded  ore /<(/((.s';  tlie 
man  pleaded  tliat  lie  w.is  at  the  time  out  of  his  senses.  It  was  replied,  iiow  do 
you  know  that  you  were  out  of  your  senses?  No  man  that  is  so,  knows  himself 
to  be  so.  And  accordingly  his  plea  was,  upon  this  (|uiljble,  set  aside;  not  l)e- 
cause  it  was  not  a  valid  one  if  he  was  out  of  his  senses;  hut  because  they  con- 
eluded  he  was  not  out  of  his  senses.'^  «  Tlie  party  liimself  may  set  up  as  a 
(lufenco,  and  In  avoidance  of  his  contract  that  he  was  i>nn  compns  vientis  when  it 
was  alleged  to  have  been  made.  The  principle  adv.inced  by  Littleton  and  Coke 
tliat  a  man  shall  not  be  heard  to  stultify  himself  has  been  properly  exploded  as 
licing  manifestly  absurd  and  against  natural  justice.'  ^  '  Vet,  clear  as  this  doc- 
trine appears,  In  common  sense  and  common  justice,  it  lias  met  with  a  sturdy 
ojipositlon  from  the  common  lawyers  who  have  insisted,  as  has  been  justly  re- 
marked, in  dellance  of  natural  justice,  and  the  universal  practice  of  all  civilized 
nations  in  the  world,  that,  according  to  tlie  known  maxim  of  the  common  law, 
no  man  of  full  age  should  be  admitted  to  disal»le  or  stultify  himself.  How  so  ali- 
surd  and  mischievous  a  maxim  could  have  found  its  way  Into  any  system  of  jur- 
isprudence professing  to  act  upon  civilized  beings,  is  a  matter  of  wonder  and 
luimiliatlou.  There  have  been  many  strugiiles  against  it  by  eminent  lawyers  in 
all  ages  of  the  common  law;  but  it  is,  perliaps,  somewhat  dilllcnlt  to  resist  the 
authorities,  which  assert  Its  estal)lisliinent  in  tlie  fundamentals  of  the  common 
law;  a  circumstance  wiiich  may  well  abate  the  boast  so  often  and  so  rashly  made 
tliat  the  common  law  Is  the  perfection  of  human  reason.'  ♦ 

"  It  .seems  to  have  been  finally  considered,  in  this  and  other  jurisdictions,  tliat  a 
man  might  avoid  a  contract  on  the  ground  of  his  insanity  in  ail  cases,  excei)tiiig, 
perhaps,  a  contract  for  necessaries.''  Hut  It  is  now  held  tliat  he  is  estopped  to 
avoid  a  contract  made  in  good  faith,  unless  he  restores  the  other  party  to  his 
previous  ])osition,  or  makes  compensation.*'  This  result  places  tlie  contracts  of 
insane  persons  and  minors,  to  a  considerable  extent,  on  the  same  ground.'' 


1  2B1.  Com.  iouiivi. 

-  Cliamberlaiu  of  I,  union  r.  Kvaiia,  5  IJl. 
Com.  App.  149  (Am.  ed.),  (1T7:'>). 

^  2  Kent's  Com.  4.'>1. 

*  Story  Eq.,  sect.  215. 

'-  Langf.  Widden,  2  N.  H.  43.>,  438;  Rurke 
r.  Allen,  2!>  X.  II.  IOC;  Suaver  v.  IMielps,  11 
I'lclv.  :!01;  Gibson  v.  Soper,  (>  Gray,  2T'.>. 


«  Molton  ?•.  Cnmroux,  2  W.  11.  &  G.  4S7; 
s.  <■.,  t  W.  II.  &  G.  17;  Young c.  Stevens,  ISN. 
II.  i:!;!;  1  I'ars.  Con.  ."isi-^Sfi  (,.5tli  ed.). 

■  Can-  V.  Clousli,  26  X.  11.280;  Heath  v. 
West,  28  X.  H.  101 ;  Lincoln  v.  Buckniaster, 
.•12  Vt.  C52;  2  Greeul.  on  Ev.,  sects.  3(i'J, 
370. 


314 


THE    I.KGAL   TEST   OF    INSANITY. 


Notes. 


"The  Englijsli  hnv,  in  proccedini;s  for  tiuardiaiisliip,  lias  Ikhmi  coiifiiscd  aiiil 
uuseltk'd.' 

"  111  rcliiUou  to  till-  l)iirdcnof  proof  on  tlic  question  of  sanity  in  criminal  rases, 
the  Eny;lisli  and  nearly  ail  the  American  authorities  liave  b. en  manifestly  wrong. 
The  uniforiii  I'lile  in  EiiLilaiid,  and  tiic  licneral  rule  in  this  country,  has  been  that 
the  bnrdeii  was  on  the  ilefeiidant  to  prove  sanity,  either  biyoiid  reasonable  doiibl 
or  by  a  preponderance  of  evidence.  In  Kimj  v.  Arnold^''  Mr.  Justice  Tii.vfY  said 
to  tlie  jury:  'The  .shooting-,  my  Lord  Onslow,  which  is  the  fact  for  wliicli  tli 
prisoner  is  indicted,  is  proved  beyond  all  manner  of  ccmtradictioii;  but  whethei 
this  shootiiig  was  malicious,  that  depends  upon  the  sanity  of  the  man.'  Oiir 
•)f  the  most  important  judicial  encroaclnneiUs  upon  the  province  of  the  jui'y,  in 
Knghvnd,  has  always  been  the  inferenci'  of  malice  declared  by  the  court  as  ;i 
legal  presumption.  The  legal  idea  of  malice  includes  the  idea  of  sanity;  and 
the  legal  presumption  of  malice  threw  the  burden  of  proving  insanity  on  tin- 
defendant.  This  has  always  been  understood  in  Kngland,  as  distinctly  as  it  was 
by  Erskine,  when  he  said,  in  himj  v.  Iladtiehl:'-^  '  I  must  convince  you  that  tin 
unhappy  prisoner  was  a  lunatic.  The  whole  proof,  therefore,  is  undoubtedly 
cast  upon  me;  '  and  by  Mr.  Baron  ^I.mjtix,  when  he  charged  the  jury,  in  Qncm 
v.  ToJCM^r?/,*  '  Unless  they  were  salislied  —  and  it  was  for  the  prisoner  to  maki 
it  out  —  that  he  did  not  know  the  coiise(|uences  of  his  act,  or  that  it  was  agaiiiM 
the  law  of  (Jod  and  man,  and  would  subject  him  to  punishment,  he  was  guilty 
of  murder.'  Tliis  great  errt)r  was  corrected  in  Stute  v.  Bartlett/^  —  a  case  most 
revolutionary  ii;  precetleiit,  but  most  conservative  in  principle. 

"In  testamentary  cases,  tried  by  a  prol)ate  court  witliout  a  jury,  the  court 
necessarily  decides  the  fact  as  well  as  the  law.  in  tStcwart  v.  Lispenard,' 
Blanchanl  v.  Nestle,''  and  Clarke  v.  Sawijer,'^  it  was  held  that  mental  linbecilit\ 
is  not  testamentary  incapacity  unless  it  amounts  to  a  total  absence  of  reason: 
but  thiS  test  was  abandoned  in  Di'lnficld  v.  Part-ih.'*  In  182G,  an  English  judge 
of  probate  decideil,  in  Dc.io  v.  Clark,^"  tliat  as  a  matter  of  fact,  proved  l)y  tin 
medical  authorities  of  his  day,  delusion  was  tlie  test  of  insanity."  The  courts  ')!' 
this  country  inadvertently  adopted  in  te.stameiitary  cases,  as  a  rule  of  law,  the  tot 
of  delusion,  which  the  English  judge  of  probate  had  found  as  a  matter  of  fact 
And  this  mistake  greatly  increased  the  ditliculty  of  extricating  tiie  .sid)ject  from 
the  einliarrassments  and  o!)scuritii's  which  beset  it.  In  isi'J  it  Avas  su])posed 
that  tlie  American  doctrine  of  testamimtary  capacity  was  lirmly  established  on 
the  English  proliate  foiimhition  of  fact,  tv.istuken  hen  for  a  basis  of  law,  when 
suddenly  even  that  foundation  was  destroyed  by  the  Knglisli  probate  court. 

"  In  Smith  v.  Tehhitt,"  Sir  J.  P.  Wii.tn-:  said:  '  What  is  t(j  be  the  proof  of  dis- 
ease? ^yhat  is  to  be  the  test.,  if  there  be  a  test,  of  morbid  mental  action?  The 
existence  of  mental  ''  Iclusions,"  it  would  perhaps  be  answered.  But  this  only 
liostpones  the  question,  in  place  of  answering  it.  For  what  is  a  mental  delu- 
sion?    IIow  is  it  to  be  .U  tined  -o  as  to  constituti'  a  lest,  universally  applicable, 


1  1;?  Law  Mag.  A  Law  Uev.  122. 

s  lf>  St.  Tr.  n'X},  T(U. 

3  27  St.  Tr.  l;U4,  1:!18. 

<  3  F.  &  F.  s;59. 

f'  43 -V.  H.221. 

«  2t>  Wend.  2,'i5. 


'  3  Denio,  37. 
•■  2\.  Y.4>.1S. 
"  25  N.  Y.  n. 
"■  3  Adiliiins,  7'.». 

"  Hoardmnii  r.  Woodnian,  47  N".  11.148,149. 
'5  I..  I!.  1  I',  .'i  I>.  :;n8. 


NO  Ti>T  I.N  m:\v  iiami'siium:. 


;;  1 ') 


Mr.  Jiistico  Dot's  Opinion. 


of  mental  disonU'i-  or  disease?  Tlie  won!  is  not  ii  very  fortnnate  one.  In 
connnon  parlance,  ji  man  may  l)e  said  to  be  under  a  "  delusion,"  wlien  he  only 
labors  under  a  mistake.  Tho  "delusion"  intended  is,  of  course,  something; 
very  different.  To  say  that  a  "morbid  "  or  an  "  insane  delusion  "  is  meant,  is 
to  be;^  tho  (luestion.  For  the  "delusion"  to  be  sought  is  to  1)0  tho  test  of 
insanity;  and  to  say  that  an  insane  or  morbid  delusion  is  the  test  of  insanity  or 
lisease,  does  not  advance  tho  in(iuiry.  "A  belief  of  facts  which  no  rational 
person  would  have  believed,"  says  Sir  John  Xu'UOI.l.  'No  rdtimml  person." 
Tills,  too,  appears  open  to  a  like  obje(;tion,  for  what  are  the  limits  of  a  rational 
Mian's  belief?  And  to  say  that  a  belief  exceeds  them,  is  only  to  saythat  it  is 
h'ralional  or  insane.  "Tho  belief  of  things  as  realities  which  exist  only  in  the 
hiiagination  of  the  patient,"  says  Lord  UnorciiAM,  in  Witn'mj  v.  U'ariixj.^  But 
■«iirely,  sane  people  often  imagine  thiiiu;s  to  exist  which  have  no  existence  in 
reality,  both  in  the  physical  and  moral  world.  What  else  giv 's  rise  to  unfounded 
fears,  unjust  suspicions,  baseless  hojies,  or  romantic  dreams?  I  turn  to  another 
dellnition;  it  is  by  Dr.  Willis,  a  man  of  great  eminence,  and  is  quoted  by  Sir 
Joiix  Niciioi.i,.  in  Dew  v.  Clnrk:  "A  pertinacious  adherence  to  souks  delusive 
idea,  in  opposition  to  plain  evidence  of  its  falsity."  This  secMiis  to  offer  a  surer 
_q'ound;  l)ut  then  the  "evidence  "  of  the  falsity  is  to  bo  "  iihiin,"  and  who  shall 
^ay  if  it  bo  so  or  not?  In  many  or  most  cases  it  would  '"j  easy  enouiih.  Those 
who  have  entertained  the  '  delusive  idea  "  that  their  bodies  were  made  of  glass, 
or  their  legs  of  Initter  —  as  it  may  bo  found  in  medical  works  that  some  have 
done  —  certainly  have  "i)Iain  evidence"  at  hand  — the  evidence  of  their  senses  — 
of  its  falsity.  But  what  if  the  delusive  idea  concern  a  subject  in  which  the 
senses  play  no  part,  and  the  lain  evidence"  by  which  it  is  to  be  discharged  is 
matter  of  reasoning,  and  adonssed  to  the  intellectual  faculty,  —  will  all  sane 
nun  agree  wlusther  the  evidence  is  plain  or  not?  and,  if  not,  shall  one  man,  in 
all  cases,  proiiounco  aiioth  r  a  nionoinaniac,  when  the  evidence  is  plain,  to  his 
ivascii,  of  tho  falsity  of  the  other's  ideas. 

"  '  I  liiid  no  fault  with  the  language  of  these  defnitions,  as  fairly  and  properly 
dcs(;ribing  the  mental  pheiioniena  that  are  used  \..,  '.lepict.  I  only  assert  that  the 
I'xistence  of  mental  di'lusions  thus  dt^lined,  is  nob  capable  of  .leing  erecited  into 
an  universal  test  of  mental  diseasi'.  It  is  no  doubt  true  that  mental  dis(>ase  is 
ahvays  accompanied  by  tho  exhibition  of  thoughts  and  ideas  that  are  false  and 
mil  iiinded,  and  may  therefore  be  properly  called  "delusive."  lUit  what  1  mean 
to  convey  on  this  head  Is  this:  that  the  question  of  insanity  and  tho  question 
of  "delusions  "  is  really  one  and  the  same,  —  that  the  unJ'j  delusions  which  prove 
insanity  are  iiisaiK!  delusions,  and  that  the  broad  iiKiuiry  into  mental  health  or 
disease  cannot  in  all  c;ases  be  either  narrowed  or  determined  by  any  lU'evious  or 
-ubstituted  inquiry  into  liie  existence  of  what  are  called  "delusions."  I  say  in 
all  cases,  for  in  some  such  as  those  to  which  I  have  already  alluded,  where  the 
Illusive  idea  ought  to  receivt;  its  condeiniuitlon  and  expulsion  at  once  from  the 
-iinple  action  of  the  senses,  tho  contrary  is  tho  case;  and  the  same  may  be  said 
of  (Illusions  obviously  opposed  to  the  simple,  ordinary  and  universal  action  of 
reason  in  healthy  minds.  These  are  the  simple  cases  alioiit  which  no  one  would 
lonbt,  and  in  tliei;'.  the  proof  of  the  "  di'lusion-. "'  i^  also  the  proof  of  insanity. 


(1  .McKi.  I'.  (  .  ;;:ii. 


316 


THE   LEGAL   TEST   OF   INSANITY. 


Notes. 


without  iiiori'.  But  what  is  to  bo  said  of  tho  more  complicated  cases?  What 
If  the  diseased  action  of  the  inind  does  not  exJiihit  Itself  on  the  surface,  as  it, 
were,  opposing  its  hallucinations  to  the  couuuon  senses  or  reasons  of  all  man- 
kind, but  can  be  tracked  only  in  the  recesses  of  aljstract  thought  or  religious 
speculation,  —  regions  in  which  the  mental  action  of  the  sane  produces  no  com- 
mon result,  — and  all  is  (luestion  and  contlict?  In  what  form  of  words  could  a 
"  delusion  "  be  defined  whicli  would  bo  a. positive  test  of  insanity  in  such  cases  as 
these?  In  none,  I  -jonceive,  btit  "  insane  tZ>7(/.s(t>Hs,"  or  words  of  the  like  import, 
Wiiich  carry  with  tlu-m  the  whole  breadth  of  the  general  imiuiry.  flow,  then,  i> 
this  question  of  insanity  to  be  appro'icl'.ed  by  a  legal  tribunal?  What  tests  an' 
to  be  applied  for  disease?  What  limits  nisigncd,  within  which  extravagance  <■ 
thought  is  to  be  pronounccvl  compatible  witli  mental  health?  The  decided  lase^ 
offer  no  light  on  these  heads.  I  nowhere  'ind  any  attempt  to  devise  such  tests 
or  assign  such  limits.  Nor  do  I  conceive  tliat  any  tests,  however  claljorate, 
beyond  the  connnou  and  ordina*".'  method  of  judging  in  such  matters,  would  be 
competent  to  bear  the  s+rain  jf  individual  cases  in  the  course  of  experience.' 

"The  judge  held  it  to  be  the  duty  of  the  court  'to  inform  itself,  as  far  as 
opportunity  permits,  of  the  general  results  of  medical  oljservation; '  and  he 
quoted  Dr.  Hay,  Dr.  Prichard  and  Dr.  Esquirol.  If  the  .American  law  of  insanity 
is  to  be  tliat  wliich  the  English  prol)ate  court  holds,  from  time  to  time,  to  be  a 
matter  of  fact  depending  upon  'the  general  results  of  medical  observation  '  and 
the  progress  of  medical  science,  we  have  no  assurance  that  this  branch  of  our 
law  will  be  more  stable  hereafter  than  it  lias  been  heretofore. 

"  The  attempt  to  establish  a  legal  test  of  mental  disease  ha--  Ije^'u  as  unsucces- 
ful  in  criminal  as  in  testamentary  cases.  In  England,  froml82(i  to  18(!7,  delusion 
was  applied  as  the  test  in  the  latter;  but  it  was  not  adopted  in  the  former;  ami 
it  was  not  shown  how  it  liappeued  that  wiiat  was  an  infallible  test  of  mental  dis- 
ease in  a  man  when  he  disinherited  his  child,  was  no  test  of  mental  disease  in 
him  when  he  deiu'ived  his  child  of  life. 

"  It  has  been  held  within  one  hundred  and  llfty  years  that  tlie  test  in  criminal 
cases  is  whether  the  defendant  was  totally  depriveil  of  his  understanding  ami 
memory,  and  did  not  know  wliat  he  was  doing  any  more  than  a  wild  beast.' 
This  was  the  original  form  of  the  knowletlge  test.  In  ISOO  the  attorney-genera! 
of  England  declared  tliat  this  test  had  never  l»cen  contradicted,  but  had  alway> 
been  adapted. '  Erskiiie,  in  the  saip.;  case,  said:  'I  will  employ  no  artillce;^  of 
speech,  the  attorney-iiciieral  standing  iindoulitedly  upon  the  most  revered  au- 
thorities of  the  law,  has  l;iid  it  ilowii,  tli;it  \o  lU'otect  a  man  from  criminal  n-- 
sponsibilit'j  ihi'W.  must  he  a  total  drprirntioi)  of  mono nj  vnd  i  udrrstamUvij.  I 
admit  that  this  is  tlie  very  expression  used  hy  Lord  Cukk  and  I  ord  ll.vi.i:;  but 
the  true  interpretation  of  it  deserves  the  utmost  attention  and  consideration  of 
the  court.  Di'luniim,  theri'fore,  where  there  is  no  frenzy  or  raving  madness,  i> 
the  true  character  of  insanity.  I  really  think,  however,  that  the  attorney- 
general  and  myself  do  not,  in  substance,  very  materially  differ.  In  contemiil.at- 
ing  the  law  of  the  country,  and  the  pi'ecedents  of  its  justice  to  which,  they  nnisf 
be  ai)i>lii!d,  I  tlnd  nothing  to  challi'iige  or  i|uestion.  I  ai)i)rove  of  tliem  throunli- 
out;   I  subscril)e  to  all  that  is  written  bv  Lord  IIai.i;  :    I  aiiive  with  all  tlieaull.oi- 


'  ICiiiK  c.  .Vrnold,  Id  SI.  Tr.  (I'.i.'i,  TO"). 


Kiiii;  r.  HMdlieM,  27  St.  Tr.  I-JSS. 


NO   TEST   IN   XP:W    IIAiMPSIIIRE. 


317 


Mr.  Justice  Boe's  Opinion. 


ities  cited  by  tlie  attorney-general  from  Lord  Cokk.''  Tlie  effort  of  Erskine 
was  made  Avitli  such  '  artifices  of  speecli,'  tliat  the  court  seem  to  have  been  niys- 
lilied.  When  Lord  Kknyox,  satisfied  tliat  the  defendant  Avas  insane,  stojjped 
the  trial,  and  ordered  a  verdict  of  acquittal,  his  remark  that,  '  with  regard  to  tlie 
law  as  it  has  been  laid  down,  there  can  be  no  doubt  upon  earth,' ai)par'jntly 
meant  as  it  has  been  laid  down  by  the  attorney-generiil  and  by  Erskine.  He 
seems  not  to  have  und"rstood  that  the  ancient  test  was  (luestioned;  and  yet, 
tried  by  tliat  test,  Iladlield  must  have  been  convicted.  Iladlield's  aecjuittal  was 
not  a  judicial  adoption  of  delusion,  as  the  test  in  the  place  of  knowledge  of 
:idit  and  wrong;  -  it  was  probably  an  instance  of  the  bewildering  effect  of  Ers- 
kiiu'.s  ailroitness,  rhetoric,  and  elotjuence. 

"  Tl^c  common  instincts  of  humanity  liavc  abandoned  the  original  '  wild  beast ' 
form  of  the  knowledge  test,  only  to  adopt  others  eipially  arl)itrary,  though  less 
-hocking  to  the  intelligence  and  sensibility  of  the  age.  Knowledge  of  right  and 
wrong,  in  some  degree,  with  more  or  less  of  exi)lanation  and  variatiiui,  has 
ii'ways  been,  in  theory,  the  test  of  criminal  capacity  in  England,  and  generally 
Ml  this  country;  tlie  English  courts  have  never  recognized  delu>ioii  as  the  test. 
Tliey  have  noticed  (Illusion  only  so  far  as  it  destroyed  the  knowledge  of  riglit 
and  wrong,  which  is  the  same  as  an  explicit  rejection  of  it  as  a  test.  If  knowl- 
cilge  of  right  and  Avrong  is  the  test,  it  is  immaterial  whether  that  knowledge  be 
lu  stroyed  by  disease  assuminii-  tlie  forms  of  delusions,  or  any  other  form. 

"  't  is  matter  of  hist  >ry  that  insanity  has  been,  for  the  most  itart,  a  growth  of 
tlic  modern  state  of  society.  Like  many  other  diseases,  it  is  caused,  in  a  great 
ilegree,  by  the  habits  and  incidents  of  civilized  lite.  In  the  I'aiiier  and  ruder 
ages,  it  was  comparatively  rare.  Its  i>resent  extent  has  been  cliielly  attained 
witliin  a  few  liuiidred  years.  Until  reei'iitly  there  were  no  asyjuins  for  the  lii- 
-aiie,  and  no  experts  devoting  their  lives  exclusively  to  the  practical  study  and 
treatment  of  the  disease.  The  neces.-ary  opportunities  for  ol)tainliig  a  thoroiigli 
under.standlng  of  it  did  not  ex. st  until  they  were  furnished  Ijy  the  positions  of 
superintendents  of  asylums  and  their  assistants.  Cousetiuently,  until  recently, 
there  was  very  little  knowledge  of  the  su'  ject. 

"  In  old  books  It  is  often  found  under  the  head  of  lunacy.  Lord  IIai.k  was 
the  llrst  writer  wlio  undertook  to  intro('uce  into  a  lawbook  any  considerable 
>latement  of  the  facts  of  mental  disease,''  Not  only  was  he  guld"d  by  the  best 
medical  authorities  of  his  day,  Init  he  carefully  used  tlie  language  of  medical 
men.  Among  other  current  medical  ideas  which '.le  recorded  wiis  this:  The  iu- 
-aiiity  'which  is  interpohited,  and  by  certain  i»e' iods  and  vicissitudes,'  'is  that 
which  is  usually  called  lunticij,  for  ti'.c  UiOi;;;  bi'.tii  a  great  influence  in  all  diseases 
of  the  brain,  especially  in  this  kind  of  dciacntia;  such  persons,  commonly,  in  the 
full  and  change  of  the  moon,  especially  about  the  equinoxes  und  suminer  sol- 
>tice,  are  usually  in  the  height  of  their  distemper;  '  and  '  such  persons  as  have 
their  lucid  Intervals,  —  which  ordinarily  happens  between  the  full  and  change  of 
the  moon — in  such  Intervals  have  usually  at  least  a  competent  use  of  reason.' 
Ill'  d'd  not  '">agini!  that  this  medical  lunar  theory  was  a  principle  of  the  common 
law.     Lord   Euskini;,  in   delivering  judgment   in   Craiuaer's  Cms*',*  said:   'The 


1  /(/.,  1;109,  lUl,  l:iU,  l:il8,  liii. 


3  1  lliile  I'.  C.  •.".», :J>, 
<  11  Vee.  446,  451. 


318 


TIIE    LKGAL    TKST    OF    INSANITY. 


Notes. 


U'' 


moon  has  no  iiiHuL-iici';  '  and  the  rei)orter  inserted  this  marginal  note:  '  Incases 
of  lunacy,  tlie  notion  that  tlie  moon  lias  an  intluence,  erroneous.'  The  reporter 
may  not  have  distintruished  l)et\veen  law  and  fact;  hut  Erskine  did  not  suppose 
that  he  was  announcin-i;  his  disajireement  with  II.M.r,  on  a  point  of  law. 

"Tlie  otiier  causes,  .symptoms,  and  tests  of  mental  di.sea.se  recorded  by  H.vi.i: 
were  as  clear  matters  of  fact  as  the  lunar  theory.  Wlien  he  put  tliem  in  his  hi>- 
tory  of  the  IMeas  of  the  Crown  lie  merely  followed  the  line  of  the  custom  that  had 
been  pursued  liy  him  and  all  oilier  Knttlisli  judires  of  iiivim^  to  the  jury  tlieir 
opinions  of  the  f!)cLs  of  the  cases  tried  before  them.'  In  tlie  History  of  the 
Common  Law,  he  says  of  trial  by  jury:  'Another  excellency  of  tiiis  trial  is  tlii> 
that  tlie  judge  is  always  present  at  the  time  of  the  evidence  given  in  it.  Herein 
he  is  able,  in  matters  of  law,  emerging  upon  the  evidence  to  direct  them;  and 
also,  in  matters  of  fact,  to  give  them  a  great  light  and  assistance  by  his  weigli- 
ing  the  evidence  before  them,  an*",  observing  where  tlie  <|nestion  and  knot  of 
tlie  business  lie;  and  by  showing  them  his  oiiiuion  even  in  matter  of  fact,  whicli 
is  a  great  advantage  and  light  to  laymen.'  '^ 

"  In  Kinrjv.  Cullender  and  Z>hh;/,' tliere  is  an  instance  of  the  positive  manner  in 
Avhich  judges  were  accustomed  to  give  their  opinions  to  the  jury  on  matters  of 
fact.  In  that  case,  the  defendants  were  tried  before  llxiM  for  witchcraft;  and 
he  instructed  the  jury  as  follows:  '  That  there  were  .such  creatures  as  witclies, 
he  made  no  doubt  at  all;  for,  first,  the  Scriptures  had  allirmerl  so  m  :h. 
Secondly,  the  wisdom  of  all  nations  had  provided  laws  against  tuch  person^, 
wluch  is  an  argument  of  their  coutldence  of  such  a  crime.'  The  jury  found  a 
verdict  of  guilty;  tlie  judge  was  fully  satistied  with  the  verdict;  ai>d,  upon  Ids 
sentence,  the  defeiulants  were  executed.  Tlie  doctrines  of  insanity  and  witch- 
craft, stated  by  Lord  IIalk,  were  held  by  him  in  connnon  witli  the  most  enlight- 
ened classes  of  the  ino.st  civilized  nations.  He  was  not  their  author,  nor  was  he 
responsible  for  them.  They  wi're  i-qually  doctrines  of  fact;  one  was  no  more  a 
matter  of  law  than  the  other;  and  tliey  are  eciually  entitled  to  oblivion,  although 
the  ancient  doctrine  of  insanity  outlived  the  ancient  doctrine  of  witchcraft. 

"  When  we  remember  that  the  universal  belief  in  witchcraft  has  been  overcome 
within  two  hundred  years,  it  is  easy  to  understand  how  the  phenomena  of  insan- 
ity were  long  regarded  as  supernatural.  Witchcraft  and  demoniacal  possession 
were  accei)ted  as  truths  taught  by  miraculous  inspiration.  Cases  of  insanity 
were  found,  answering  tlie  bililical  description  of  cases  of  demoniacal  posse- 
sion; but  the  suggestion  tliat  any  of  the  latter  might  be  cases  of  inent;il  or  i)liy- 
sical  disease,  was  received  as  an  attack  upon  tlie  iufaHlbiiity  of  the  Seri|)tur('s. 
This  state  of  tliiiiiis  discouraged  invest iiialion,  and  encouraged  the  bi'lief  that 
insanity,  at  least  in  some  of  its  forms,  was  demoniacal  i)osscssion.  The  natural 
causes  and  operations  of  cerebral  disease  were  mysterious:  the  tlieologieai 
clouds  that  encompassed  it,  were  appalling. 

"  In  a  period  of  ignorance,  credulity,  super'<titioii,  and  reliirious  terrorism,  he- 
fore  there  was  a  science  of  medicine,  we  sht.uld  not  expeet  to  tlud  any  scientilie 
or  accurate  understanding  of  such  a  malady.  Well  might  tlit)  boldest  shrink 
from  the  exploration  of  a  condition  l)elievcd  to  l>e,  in  its  origin,  beyond  the 
bounds  of  nature,  and  curable  only  by  the  power  of  exorcism. 


1  Ante,  p.  41G,  417 


=  2  Hale's  Hist.  Com.  L.  147. 


5  6  St.  Tr.  "00. 


NO   TKST    IX    NEW    IIAMrsiIIUE. 


319 


Mr.  Justice  Doe's  Opinion. 


"As  liic  ancient  tlioory  of  diiiholisni  L;nulnall\  passed  away,  insanity  was  >till 
altriljuteil  to  special  providences,  and  not  to  tlie  operaticn  of  tlie  fjeneral  iawsof 
liealtli.  Tlie  snfferers  were  treated  for  wic]<edness  ratlier  tlian  sickness.  Anionu: 
men  of  science,  tlie  investigation  of  tUc  subject  is  now  diseiicuuiliert'd  ot  all 
tlieological  complications.  IJut  this  is  amoderu  emancipation  not  yet  realized 
by  the  mass  of  even  llie  most  enliu;hte!ied  communities.  Very  few  persons  have 
an  adequate  conception  of  the  fact  that  insanity  is  a  disease.  The  common  no- 
tion of  it,  is  of  soinetliinij;  not  merely  marvellous,  but  also  peculiarly,  vaguely, 
and  indescribably  cmnected  with  a  hiuiher  or  lower  world.  The  insane  are  gren- 
erally considered  as  more  than  sick:  and  if  tliey  are  not  spoken  of  as  possrs  .cd, 
tlieir  condition,  to  the  popular  apprehension,  is  still  enveloped  in  a  snpernarural 
shadow.  The  Lord  Chancellor  of  England,  declared,  in  tlie  House  of  Lords,  on 
the  11th  day  of  Marcli,  18(li',  that '  the  introduction  of  medical  oi)iiiions  and  medi- 
cal theories  into  this  subject,  has  proceeded  upon  the  vicious  principle  of  con- 
sidering insanity  as  a  disease.'  '  This  remark  indicates  how  slowly  legal  super- 
stitions are  worn  out,  and  how  dogmatically  the  highest  legal  authorities  of  this 
age  maintain,  at  law,  tests  oi  insanity,  wliieh  are  medical  theories  differing  from 
those  rejected  by  the  same  autliorities,  only  in  being  the  obsolete  theories  of  a 
progressive  science. 

"It  was,  for  a  longtime,  sujiposed  that  men,  however  iii-ane,  if  they  knew 
an  act  to  be  wrong,  could  refrain  from  doing  it.  But  whether  that  supposition 
is  correct  or  not,  is  a  pure  (piestion  of  fact.  The  siii)positioii  is  a  supi)osition  of 
fact;  in  otlier  words,  a  medical  supposition,  in  other  words  a  medical  theory. 
Whetlier  it  originated  in  the  nu'dical  or  any  other  i)rofession,  or  in  the  general 
notions  of  mankind,  is  immaterial.  It  is  as  medical  in  its  nature  as  the  oppo- 
■^ite  tlieory.  Tlie  knowledge  test  in  all  its  foi'ins,  and  tlie  delusion  test,  are  medi- 
cal tlieories  introduced  in  immature  stages  of  science,  in  the  dim  light  of  earlier 
times,  and  subsequently,  upon  more  extensive  ol)servations  and  more  critical 
examinations,  repudiated  by  tlie  niedicil  profession.  But  leg.al  tril)unals  have 
claimed  these  tests  as  immutable  principles  of  law,  and  have  fancied  they  were 
al)undantly  vindicated  by  a  sweei)ing  denunciation  of  medical  theories,  uncon- 
siious  that  this  aggressive  defence  was  aa  irresistible  assault  ui)on  their  own 
position. 

"  Wlien  the  authorities  of  tlie  common  law  began  to  (U'al  witli  insanity,  they 
.adopted  the  prevailing  me<lical  theories.  The  (.listinction  between  thedut\-of 
llie  court  to  decide  ((Uestions  of  law,  and  the  duty  of  the  jury  to  decide  ((uestions 
(ffact,  was  not  appreciated  and  oliserved  as  it  now  is  in  this  State.  In  crim- 
ih'il  cases,  the  jury  might  decide  tlie  law  as  well  as  the  fact.-  In  civil  and 
<riniinal  cases,  the  court  gave'  to  tlie  jury  their  opinion  of  tlie  facts,  as  well  as 
of  the  law,-'  and  the  difference  between  a  iiuestion  of  fact  and  a  c|uestion  of  law 
was  generally  of  littleoriio  practical  importance.  When  new  trials  liad  not  come 
into  use,'  when  prisoners  were  not  allowed  the  assistance  of  counsel  in  relation 
to  matters  of  fact,' and  juries  were  puni-^licd  at  the  discretion  of  the  court  for 
tlmliiig  their  verdict  contrary  to  the  direction  of  the  judLre,"  tlie  sphere  of  the 


1  Iliinsard  CT.VV.  1200.  .V);  Quincy,  Mass.,  .5,VS;  Ililliunl  on  .New  Tr., 

-  I'iorce  V.  State,  13  X.    II.  .'i.'ir,;    Quincy  cli.  1,  .sects.  2,  S. 

Miiss.  l.'ep.  .V')8-.')72.  •'  4  HI.  Coin.  3.V);  11  St.  Tr.  17(i;  I'J  .St.  Tr, 

Aiite,4in,Ul.  !»14. 

<  :;  in.  Com.  10.-);  William  r.  I.uwis,  1  Wills.  '•  4  HI.  C'oni.  •to. 


320 


THE   LEGAL   TEST   OF    INSANITY . 


Notes. 


court  wiis  liilitiuliiuiriaii.  The  judicial  prautice  of  dlroctinf;  or  advising  juries 
in  matters  of  fact  lias  never  been  di>contiiuied  in  England.  And  this  practice 
lias  carried  into  rei)orts  and  treatises,  on  various  branches  of  the  law,  many 
opinions  of  mere  matters  of  fact.  Without  any  conspicuous  or  material  parti- 
tion l)etwecu  law  and  fact,  without  a  plain  demarcation  between  a  circumscribed 
province  of  the  court  and  an  independent  province  of  the  jury,  the  judges  gave 
to  juries,  on  <iucstious  of  insanity,  the  best  opinions  ■which  tlie  times  afforded. 
In  this  manner,  opinions  purely  medical  and  pathological  in  their  cliaracter, 
relating  entirely  to  (luestions  of  f  and  full  of  error,  as  medical  experts  now 
testify,  passed  into  booI<s  of  law,  and  aciiuired  the  force  of  judicial  decisions. 
Defective  medical  theories  usurped  tlie  position  of  common-law  principles. 

"  The  usurpation,  wlien  detected,  should  cease.  Tlie  manifest  imposture  of  an 
extinct  medical  tlieory  pretending  to  be  le^;al  authority  cannot  appeal  for  sup- 
l)ort  to  our  reason  or  even  to  our  syini)athy.  Tlic  proverbial  reverence  for 
precedent  does  not  readily  yield;  but  when  it  comes  to  be  understood  that  a 
precedent  is  medicine  and  not  law,  the  reverence  in  whicli  it  is  held  will,  in  tlie 
course  of  time,  subside. 

"Tlie  legal  profession,  in  profound  ignorance  of  mental  disease,  liave  a.ssailed 
the  superintendents  of  asylums  —  who  ]<iiew  all  tliat  was  known  on  the  subject, 
and  to  whom  the  world  owes  an  incalcuhible  debt — as  visionary  theorists  and 
sentimental  philosophers,  ai tempting  to  overturn  settled  iirineijiles  of  law; 
whereas,  in  fact,  the  legal  iirofessiou  were  invading  the  iirovince  of  medicine, 
and  attempting  to  install  old,  exploded  medical  theories  in  the  place  of  facts 
established  in  the  progress  of  scientific  knowledge.  Tlie  invading  party  will 
escape  from  a  false  i)t)sitiiii  wlien  it  withdraws  into  its  own  territoi'y;  and  the 
administration  of  justice  \vill  avoid  discredit  wlien  the  controversy  is  thus 
brought  to  an  end.  Whether  the  old  or  tlie  new  medical  theories  are  correct, 
is  11  question  of  fact  for  the  jury,  it  is  not  the  business  of  tlie  court  to  know 
whether  any  of  thein  are  correct.  The  law  docs  not  change  with  every  advance 
of  science;  nor  does  it  maintain  a  fantastic  consistency  by  adhering  to  iiuilicMl 
mistakes  Avhich  science  has  cotTected.  The  legal  i)rinciple,  however  much  it 
may  formerly  have  been  obscuri-U  by  pathological  darkness  and  confusion  of  law 
and  fact,  is,  that  a  product  of  mental  disease  is  not  a  contract,  a  Avill,  or  a  crime. 
It  is  often  dillicnlt  to  ascertain  whether  an  individual  ha  '  a  mental  disease,  or 
whether  an  act  was  the  product  of  that  disease,  but  tliest  Uilfieulties  arise  from 
the  nature  of  the  facts  to  lie  investigated,  and  not  from  tlie  law;  they  are  prac- 
tical difliculties  to  lie  >..lved  by  the  jury,  and  not  le;ral  didiculties  for  the  court. 

"  If  our  precedents  )ractically  estalilished  old  medical  theories  which  science 
had  rejected,  and  abs« I  utely  rejected  those  which  science  had  established,  they 
might  at  least  claim  r^tv  merit  of  formal  consistency.  But  the  precedents  require 
the  jury  to  be  instructed  in  the  new  iue\lical  theories  I  y  experts,  and  in  the  old 
medical  theories  by  the  judge. 

"  In  (^ueen  v.  (Mffrd,^  tried  in  1840,  Ur.  Chowue  testified  that  he  considered 
doing  an  act  without  a  motive  a  pn»of,  to  some  extent,  of  an  unsound  mind: 
that  one  kind  <'»:f  insanity  has  bi-rn  well  descrilRii  by  the  term  'lesion  of  the 
will;  '  tliut  it  is  sometimes  called  moral  insanity;  tliat  patients  are  often  im- 


1  9  C.  &  P.  545, 646. 


NO   TEiST    IN    NKW   HAMP.SIIIUK. 


321 


Mr.  Justice  Doe's  Opiiiion. 


pcllod  to  commit  suicide  without  any  motive;  tliat  tliis  state  of  mind  is  not 
incompatible  with  an  acntencss  of  mind  and  an  al)ility  to  attend  to  tiie  ordinary 
affairs  of  life.'  Lord  Dkxman  instructed  tlie  jury  tliat,  if  some  controlling: 
disease  was  in  truth  the  actini;  power  with  tlie  defendant,  which  lie  could  not 
resist,  he  was  not  responsible,  and  that  knowledge  was  the  test. 

"In  Queen  v.  McNaohten,  tried  in  1843,  Dr.  Monro  testilled  that  an  insane 
person  may  commit  murder,  and  yet  be  aware  of  the  conse(iuences;  that  lunatics 
often  manifest  a  liiiih  decree  of  cleverness  and  iniienuity,  and  exhibit  occasion- 
ally srreat  cunninij  in  escaping  from  the  consequences  of  .sucli  acts;  and  tliat  lie 
considered  a  i)erson  laboriinr  under  a  morbid  delusion  to  be  of  niisouud  mind; 
that  insanity  may  exist  without  any  morbid  delusion;  that  a  person  may  be 
of  unsound  mind,  and  yet  be  able  to  nianase  the  usual  affairs  of  life;  that 
insanity  may  exist  with  a  moral  perception  of  right  and  wrong,  and  that  this 
is  very  common.  Eight  experts  gave  .^icir  opinions,  going  to  show  that  the 
ilcfeiidant  had  committed  the  act  in  question  under  the  intlueiice  of  a  morbid 
iklnsion  Avhich  deprived  him  of  the  power  of  self-control.  Thi'ir  testimony,  in 
substance,  was  that  the  defendant  was  insane,  and  that  knowledge  of  right  and 
wrong  was  not  the  test.  The  medical  testimony  was  so  strong  that  the  court 
stopped  the  trial,  and  substantially  directed  the  jury  to  acquit  the  defendant; 
!)ut  Chief  Justice  Tin'dal  instructed  the  jury  that  knowledge  was  the  test.  It 
iloes  not  appear  iiow  the  defendant  could  be  acquitted  by  that  test.'^ 

"In  E.  V.  Pate,  tried  in  I80O,  Dr.  Conolly  testitied :  '  I  have  conversed  with 
the  prisoner  since  this  transaction,  and,  in  my  opinion,  he  is  a  pei'sonof  unsound 
iiiind.  I  am  not  aware  that  he  suffers  from  any  particular  delusion,  lie  is  well 
aware  that  he  has  done  wrong,  and  regrets  it.'  Dr.  Monro  testilled:  '  I  have 
iiad  five  interviews  with  Mr.  Pate  since  this  transaction,  and,  from  my  own 
observation,  I  believe  him  to  be  of  unsound  mind.  I  agree  with  Dr.  Conolly 
that  he  is  not  laboring  uiuhr  any  specific  delusion.  I  think  he  may  have  known 
v(ry  well  what  he  was  doing,  and  have  known  that  it  was  very  wrong;  but  it 
fn(|uently  happens  with  i)ersons  of  diseased  mind  that  tiiey  will  i)erversely  do 
what  they  know  to  be  wrong.'  Mr.  Baron  Aldkuson  instructed  the  jury  that 
knowledge  was  the  test, 

"  In  It.  V.  Towiile;/,  tried  In  18(;;5,  Dr.  Winslow  testified:  '  I  think  tliat  at  this 
present  moment  he  is  a  man  of  deranged  intelh'ct.  He  was  deranged  on  the  18th 
of  November,  ;ind  I  thought  still  nxn-e  so  last  night  when  I  saw  him  the  second 
lime.'  The  witness  was  asked:  'If  the  present  .state  of  mental  derangement 
existed  on  ilie  21st  of  August,  would  it  be  likely  to  lead  to  the  commission  of  the 
art  then  conimitted'f  '  His  answer  was:  '  Most  undoubtedly.  Assuming  him  to 
!i  i\  (•  been  on  the  olst  of  .\ugust  as  he  was  on  the  18th  of  November  and  yestcr- 
'  ay,  I  do  not  Ix'lieve  that  he  was  in  a  condition  of  mind  to  estimate,  like  a  sane 
man,  the  nature  of  his  act  and  his  legal  liability.'  The  witness  further  testified: 
'  He  does  not  appear  to  have  a  sane  opinion  on  a  moral  point.  I  have  no  doubt 
lie  knows  that  these  opinions  of  his  are  contrary  to  those  generally  entertained, 
and  that  If  acted  upon,  they  would  subject  him  to  punishment.  I  should  think 
lie  would  know  that  killing  a  jicrson  was  contrary  to  law,  and  wrong  in  that  sense. 
I  ^hoild  think  that,  from  his  saying  he  should  be  hanged,  he  knew  he  had  done 


An.  Keg.  1(540,  I'art  2,  p.  2t;'J 
L'l 


All.  IJog.  1843,  I'uit  2,  pp.  ;J5,  ,199. 


322 


THE    LEGAL   TEST   OF   INSANITY. 


Notes. 


wroiiij;.'  Dr.  (iisboriic  Ustidcd,  'that  the  prisoner's  laiimiaiie  implied  that  lie 
knew  tliat  wliat  he  had  done  was  piinisiial)Ie,  l)nt  tliat  he  —the  witness  —  hi-- 
lievcd  lio  wonld  repeat  tlie  offence  to-morrow.'  Mr.  Baron  .M.vktin  instrueteil 
tlie  jury  tinit  linowledue  was  tlie  test.  ^ 

"In  tliese  cases,  tlie  t- stiniony  of  the  exjierts  negatived  the  idea  that 
Ivnowledtje  of  riirht  and  wronjn  is  tlie  test.  And  tlie  admission  of  tlii.s  ovi- 
dcnee  coupled  willi  tlie  rule  jiiveii  liy  the  court  to  the  jury  that  k!iowled:,'c 
is  tlie  test,  hrouiiht  the  law  into  conlliet  witli  itsilf.  Kitlier  tlie  experts  testi- 
lietl  on  a  ((Uestion  of  law,  or  the  courts  testillid  on  a  question  of  fact.  Tin 
contlict  was  only  rendered  a  little  more  palpable  in  Prople  v.  Huntington, 
tried  in  New  York  in  IH.")!!.  Kxperts  testified,  as  tliey  liavc  long  testified  in 
England  and  elsewhere,  that  a  man  without  delusion  may  ])e  irresponsibli^ 
by  reason  of  insanity,  for  an  act  wliich  he  knows  to  be  a  crime  the  consi  - 
quences  of  Avliicli  he  understantls.  One  expert  testified  that  ho  defined  in.sanity 
as  a  disease  of  the  brain  l)y  which  the  freedom  of  the  will  is  impaired,  am] 
that  almost  all  insane  people  know  right  from  wrong.  The  knowledge  test  ot 
insanity,  as  laid  down  by  the  Knglish  judges  in  their  opinions  given  to  the  IIoiisc 
of  Lords  in  what  is  called  the  ■\lcX<i(ih>r)i''s  Cnxc,^  was  read  by  counsel  to  tlir 
e\i)erts;  the  experts  were  din  etly  asked  their  opinion  of  that  test,  and  tliey  te^- 
tilied  that  tliey  did  not  agree  with  the  I-higiish  judges  on  that  subject.  The  .sanir 
knowledge  test,  a.s  laid  down  by  the  Supreme  Court  of  New  York,-  was  read  to 
one  of  the  experts,  and  the  same  kind  of  testimony  was  rejieated.  The  coiirl 
instructed  the  jury  that  kiiowletlge  w;is  the  test.' 

In  Com.  V.  Ttdiii'i's,  one  expert  testitlt'd  that  insane  persons  generally  know  tlu- 
ilistinction  lietwei'n  riuht  and  wrong.  The  opinioii  of  three  experts  was,  thai 
the  defeiulaiil  was  insane;  tliat  his  reason  had  liccu  overiiorne  by  dehision,  uiiij 
an  insane  and  irresistiiiie  imimlse  or  paroxysm.  In  coming  to  that  conclusiuii, 
it  does  not  appear  that  they  were  guided  by  the  knowledge  test ;  and,  upon  their 
testimony,  it  would  seem,  that,  in  their  opinion,  knowledge  was  not  the  tot. 
The  court  instructed  tlie  jury  that  knowledge  was  the  test.  In  the  applicatioi! 
of  that  test  to  the  evidence,  the  court  adopted  the  language  of  the  experts  in 
relation  to  delusion  and  impulse,  intending  apparently  to  use  delusion  ainl 
impulse,  not  as  a  substitute  for  t;,c  knowledge  test,  or  as  a  modification  of  ii. 
l)ut  as  an  illustration  of  a  process  by  whicli  the  knowledge  of  the  wrongfuliic-v 
of  tlie  act  might  Ije  suddenly  removed.  The  jury  were  Hiial)le  to  understand  tli. 
law  in  the  form  in  which  it  was  stated  in  the  instructions,  and,  after  consideriii:; 
the  (|Uestion  of  .sanity  some  time,  they  came  into  court,  and  asked  what  dcifrci 
of  insanity  would  amount  t(.  a  justification:  l)ut  the  court  added  nothing  to  the 
instrn(;tions  previously  given.* 

"  It  is  the  common  practice  for  experts,  under  tlie  oath  of  a  witness,  to  inform 
the  jury,  in  sul)stance,  that  knowledge  is  not  tlie  test,  and  for  the  judge,  not, 
under  the  oath  of  a  w  itness,  to  inform  the  jury  that  knowledge  is  the  test.  And 
tiie  situation  is  still  more  impressive,  wlien  the  judge  is  forced  l)y  an  impulse  of 
liumanity,  as  lie  often  is,  to  sul)stantially  advise  the  jury  to  acquit  tlic  accused 
on  the  testimony  of  the  experts,  in  violation  of  the  test  asserted  l)y  liimself, 


>  1  C.  &  K.  l.n. 

s  Freeman  r.  rcople,  4  Deiiio,  liS. 
■^  Kei""'  of  I'"'  •■'■'"•  "f  I'l'oplc  r.  limit 
ington,  -ITil,  200,  2(il,  .'C.;!,  ■.'(iS,  •.'C.'i,  -.'TO,  271,  417. 


'  Itcport  of  tlie  trial  of  Com.  v.  Rogers, 
149-  IOC,  276-27S,  281 ;  ».  c,  7  Metc.  ."iOt/. 


IllllLIC    illll>lii>(l    tllilt   111 

(•  —  IIk'  wilnt'ss —  !«•- 
•on  Maktin  iustnielcil 

I 

:ativ((l    tlif   iilcJi    tli:it 

iliuission  of  tliis  cvi- 
jury  that  kiiowled;;! 
her  the  experts  testi- 
luestion  of  fact.  Tht 
People  V.  Huntington, 
have  long  testiiiecl  in 
may  be  irresponsiblr 
)e  a  crime  the  const  - 
lat  he  tk'lhied  insanity 
will  is  impaired,  ami 
The  knowletliic  test  of 
oils  given  to  the  Ilousr 
ead  l)y  counsel  to  tli  ■ 
;hat  test,  and  they  te-.- 
lat  sulijeet.  The  saiih 
e\v  Vori<,-  was  read  t^ 
repealed.     Tlie  court 

)iis  generally  know  tin 

hree  experts  was,  tlial 

lorne  by  delusion,  ami 

ing  to  that  conclusion, 

test ;  and,  upon  thuii 

ge  was  not  the  te-t. 

St.     In  the  applicatio;; 

age  of  the  experts  i;i 

to    use  delusion  ami 

a  modiflcation  of  ji. 

of  the  wrongfuliic-- 

ble  to  understand  tli' 

ml,  after  consideriii_ 

id  asked  what  deui'ci 

added  nothing  to  tin 

f  a  witness,  to  Infonii 
id  for  the  judge,  imt 
•dge  is  the  test.  Ami 
reed  by  an  impulse  of 
to  acquit  the  accuse.! 
asserted  by  himself. 

trial  of  Com.  v.  Rogcn, 
s.  c,  7  Mete.  500, 


NO   TEST   IN   NEW   lIAMl>81IIItK. 


;i2;i 


Mr.  Justice  Doe's  Opinion. 


The  predicament  is  one  which  cannot  be  prolonged  after  it  is  realized.  If  tlie 
tests  of  insanity  are  matters  of  law,  the  practice  of  allowing  experts  to  testify 
what  they  are,  should  be  discontinued;  if  they  are  matters  of  fact,  the  judge 
should  no  longer  testify  without  being  sworn  as  a  witness  and  showing  himself 
(jualifled  to  testify  as  an  expert. 

"To  say  that  the  expert  testitles  to  the  tests  of  mental  disease  as  a  fact,  and 
the  judge  declares  the  test  of  criminal  resjioiisibility  as  a  rule  of  law,  is  only  to 
state  the  dilemma  in  another  form.  Tor,  if  the  alleged  act  of  a  defendant,  was 
the  act  of  liis  mental  disease,  it  was  not,  in  1  w,  his  act,  and  he  is  no  more 
responsible  for  it  than  he  would  be  if  it  had  iieeii  the  act  of  his  involuntary  iii- 
toxiealioii,  or  of  any  other  person  using  the  defendant's  hand  against  his  utmost 
resistance;  if  the  defendant's  knowledge  is  the  test  of  responsibility  in  one  of 
these  cases,  it  is  the  test  in  all  of  them.  If  he  does  know  the  act  to  be  wrong,  he  is 
iqually  irresponsible  whether  his  will  is  overcome,  and  his  hand  used,  by  the 
irresistible  power  of  his  own  mental  disease,  or  by  the  irresistilile  power  of  an- 
other person.  When  diisease  is  propelling  uncontrollable  power,  the  man  is  as 
innocent  as  the  weajion,  —  tlie  mental  and  morai  elements  are  as  gnillless  as  tin' 
material.  If  his  mental,  moral,  and  bodily  strength  is  siilijugated  and  pressed  to 
.111  involuntary  service,  it  is  immaterial  whether  it  is  done  by  his  disease,  or  by 
iiiiother  man,  or  a  brute  or  any  pliysieal  force  of  art  or  nature  set  in  operation 
without  any  fault  on  his  part.  If  a  man,  knowing  the  difference  Ijetwceii  right 
,111(1  wrong,  but  deprived,  by  either  of  those  ageiiL'ies,  of  the  power  to  choose  be- 
tween them,  is  punished,  he  is  punished  for  his  inaliility  to  make  the  choice  —  is 
punished  for  incapacity;  and  that  is  the  very  thing  for  which  the  law  says  lieslmll 
not  be  punished.  He  might  as  well  bo  punished  for  an  incapacity  to  distinguish 
right  from  wrong,  as  for  an  incapaeity  to  resist  a  mental  di.sease  which  forces 
upon  him  its  choice  of  the  wrong.  Whether  it  is  a  possible  condition  in  nature, 
for  a  man  knowing  the  wrongfulness  of  an  act,  to  lie  rendered,  liy  nii'iital  disease, 
incapable  of  choosing  not  to  do  it  and  of  not  doing  it,  —  and  whether  a  defend- 
ant, in  a  particular  instance,  has  been  thus  incapacitated,  —  are  o))viou.sly  ques- 
tions of  fact.  But,  whether  they  are  questions  of  fiU't  ov  of  law,  when  an  expert 
testitles  that  there  may  be  such  a  condition,  and,  that,  upon  i)ersonal  examina- 
tion, he  thinks  the  defendant  is  or  was  in  such  a  condition,  that  his  disease  has 
overcome  or  suspended,  or  temporarily  or  permanently  oiiliterated  his  capacity 
of  choosing  between  a  known  right  and  a  known  wrong,  and  the  judge  says  tli;it 
knowledge  is  the  test  of  cap.'ieity.,  the  judge  t1;Uly  contradicts  the  exjfC  r! .  Kither 
the  expert  testifies  to  law,  or  the  judge  testitles  to  fact. 

"  From  this  dilemina,  the  authorities  afford  no  t'seape. 

"The  whole  dilliculty  is,  that  courts  have  undertaken  to  declare  that  to  I)i- 
law  which  is  a  matter  of  fact.  The  principles  of  the  law  were  maintained  at  the 
trial  of  the  present  case,  when,  experts  having  testified  as  usui'.l  that  neitlu-r 
knowledge  nor  delusion  is  the  test,  the  court  instructed  the  jury  that  all  tests 
of  mental  disease  are  purely  matters  of  fact,  and  that  if  the  homicide  was  the 
offspring  or  product  of  mental  disease  in  the  defendant,  he  was  not  guilty  by 
reason  of  in.sanitv." 

One  year  later,  in  a  very  exhaustive  judmneiit,  the  doctrine  of  this  case  wa.s 
aiTirmed.' 

'  State  V.  Jones,  .■>(•  .N.  11.  3(>'.i;  ii  Am.  Dec.  'J4-.'  (IsTl). 


324 


THE   LEGAL   TEST   OF   INSANITY 


Notes. 


Till'  New  Iliimpsliiro  doctrine  Is  followed  in  Illinois'  and  Indiana.^ 

§28.  Insane  Delusions.  —  A  person  uctins  under  an  insane  delusion  is  pro- 
tected in  disc  he  would  have  lieen  justified  in  liis  act  luid  tliat  insane  delusion 
l)een  true.'  This  was  clearly  laid  down  by  tlie  judges  in  their  answers  in  Mc- 
Nnghteii's  Caxc*  Jud,!j;e  Cox's  learned  cliargc  in  Gititeau^s  Case  has  "gone  a 
great  way  to  linally  establisliing  the  rule  that  delusion,  to  constitute  a  defence, 
must  be  oljjcctive  as  distinguislied  from  suljjective.  Tliey  must  lie  delusions  of 
tlie  senses,  or  sucli  as  relate  to  facts  or  ol)jects,  not  mere  Avrong  notions  or  im- 
pressions; and  tlie  al)crration  in  such  case  must  be  mental,  not  moral,  and  must 
affect  the  intellect  of  the  Individual.  It  is  not  enough  that  tlieyshow  a  di.sea.sed 
or  depraved  state  of  mind,  or  an  aberration  of  the  moral  feelings,  tlie  sense  of 
riglit  and  wrong  continuing  to  exist,  altliough  it  may  be  in  a  perverted  condition. 
To  enable  them  to  be  set  up  as  a  defence  to  an  indictment  for  a  crime,  they  must 
go  to  such  crime  objectively;  i.e.,  they  must  Involve  an  hone.st  mistake  as  to  the 
object  at  Avliicli  tlie  crime  is  directed.*  The  distinction  before  us  may  be  illus- 
trated by  LcvcVs  Casn,  wliieli  has  never  l)een  questioned,  and  which  has  been 
sanctioned  by  tlic  most  rigid  of  tlio  common-law  jurists,  where  it  was  held  a 
sufficient  defence  to  an  indietment  for  nuirder,  tliat  the  mortal  blow  was  strucl< 
by  tlie  defendant  under  tiie  delusion  that  the  deceased  was  a  robl)er,  who  had 
entered  the  house."  It  would  have  been  otherwise  had  the  delusion  been  tliat 
the  victim  was  a  political  opponent  whom  It  was  politic  to  rL'inove.  To  this 
effect  Is  the  opinion  of  Chief  Justice  Shaw,  in  1844,  In  Com.  v.  Rofjors:  '  '  Mo- 
nomania,' said  this  eminent  judge,  '  may  operate  as  an  excu.se  for  criminal  act,' 
when  '  the  delusion  is  such  that  the  person  under  its  influence  has  a  real  and  linn 
belief  of  some  fact,  not  true  in  itself,  but  wliich,  if  it  were  true,  would  excuse 
his  act;  as  wliere  the  belief  Is  that  tlie  party  killed  liad  an  immediate  design  upon 
his  life,  and  under  that  belief  tlie  insane  man  kills  in  supposed  self-defence. 
A  common  instance  is  whore,  lie  fully  believes  that  the  act  he  is  doing  is  done  by  the 
immediate  command  of  God,  and  he  acts  under  the  delusive  but  sincere  belief  that 
what  he  is  doing  is  by  the  command  of  a  superior  poioer,  which  supersedes  all  hu- 
man laws  and  the  laws  of  nature.''^  To  make  such  a  delusion  .,  defence,  how- 
ever, tliere  must  be  no  consciousness  of  tlie  wrongfulness  of  the  act  to  which  the 
delusion  prompts.  If  there  be  reason  enough  to  dispel  the  delusion;  if  the  de- 
fendant ol)stiiiately  refuses,  under  such  circumstances,  to  listen  to  arguments  by 
which  the  delusion  could  be  dispelled;  if,  on  the  contrary,  he  cherishes  such  de- 
lusion, and  makes  it  the  pretext  of  wrongs  to  others,  — then  he  is  responsible  for 
such  wrong.  Thus,  in  a  case  of  homicide  in  Delaware,  in  1851,  the  deceased 
iieing  tlie  defendant's  Avife,  tlie  defence  was  delusion  consisting  in  a  l^elief  that 
his  wife  was  untrue  to  him,  tliat  liis  chihlren  were  begotten  ))y  his  wife's  inter- 
course with  another,  and  tliat  sundry  conjurations  were  being  practised  upon 
hiin,  and  the  evidence  showed  tliat  he  was  a  shrewd  and  wealthy  Ijusiness  man. 


1  llopps  V.  reople,  31  111.  Sa'j. 

s  Bradley  f.  State,  31  Intl.  492  (1809) ;  Ste- 
vens V.  State,  31  Ind.  483  (18(;y). 

3  Fain  v.  Com.  7S  Ky.  183  (1879) ;  Com.  r. 
Rogers,  7  Mete.  .500  (1844) ;  Cunningliam  r. 
State,  SO  Miss.  269  (1879) ;  State  v.  Mewlicrter, 


46  Iowa,  88  (1877) ;  Boswell  t'.  State,  63  Ala. 
307  (1876). 

<  Ante,  p.  150. 

6  See  It.  V.  I5rrt<)n,3  F.  &  F.  772;  R.  v. 
Townley,  3  F.  &  F.  8:1!). 

"  l-evet's  Case,  Cro.  Car.  438. 

'  7  Mete.  500. 


INSANE    DELUSIONS. 


325 


United  States  v.  Liuvrence. 


The  court  Carded  the  jury  that  If  a  person,  otherwise  rational,  commit  a  homi- 
n.le,  thunjjh  affected  l,y  delusions  on  suiijects  with  which  the  act  is  connected 
he  Is  crin.inally  responsible,  If  he  were  capable  of  the  perception  of  consclous-' 
ness  of  rliiht  an.l  wron-  as  applied  to  the  act,  and  had  the  ability  throu-di  thut 

rr  t^:  i^^::;  hir^  ;^^  -'  -'-'  ^'  ^"^  ^^"^  ^^^-'^  '^^  --•^^  ^^^  ^^^^^^^^■ 

In  United  States  v.  Lawrence,^  the  prisoner  was  indicted  for  shootinjr  at  General 

Onlhrt'rl  ;T,     TI'T.:!  ""  ''"'^"'  states,  with  a  pistol  With  intent  to  k  i 
On  the  trial  the  fact  that  the  prisoner  was  at  the  time  under  a  n.ental  delusion 
supposing  hnnself  to  be  King  of  England,  and  of  the  United  States,  as  an  r.' 
PC.C  age  to  England,  and  that  President  Jackson  stood  in  his  way  in  the  enjo  - 
ment  of  his  right,  was  proved.    The  jury  found  him  not  guilty,  by  reason  W 


»  State  V.  Windsor,  5  Harr.  512. 
»  From  Dr.  Wharton's  note  in  the  Federal 
Reporter  to  the  report  of  Guiteau's  Case. 


'  4  Cranch  C.  C.  5     (1835), 


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CHAPTER  II. 

THE  BURDEN  OF  PROOF  OF  INSANITY. 


BURDEN  OF  PROOF  UN  PRISONER- TEST  OF  INSANITY. 

State  v.  Puatt. 

[1  Iloust.  Cr.  Cas.  249.] 
la  the  Delaware  Court  of  Oyer  and  Terminer,  May  Term,  1807. 

Statk  i\  Danby. 

[Id.  Hi7.] 
In  the  Delaware  Court  of  Oyer  and  Terminer,  November,  1804. 
Before  IIou.  Edwahd  W.  Gilpi.v,  C.  J. 
1  Particular  Biirht  and  Wronp'  T«.i.f       rim  .^„.  „«  .• 

'>i  a  person  L  a  crin.i.^^.:^tlv h  :^    .  'S^  "I';^:? r'' "' '"■"'""^"^'"'>' 
.he  time  and  as  touching,  that  act  .ane  oH     a    ;'     Met  L.ffl'""?' '■^' "'? 
.•i.y  at  the  time  of  com.nittin.^it,  to  distingui.r  Vetwe   '  t he  .iZ T".  '"""     """■"' 

.-ticuiar  ac.  an.,  to  kno.  that  it  wu«  wn^K.  he  ::^::;u:::x:^S::::i;:z'::' '"" 
'  '"-:^^^^CSnSnn:u;;^^^  ^  ■— ^ 

The  prisoner     Joseph  W.    Pratt,    was  indicted    for  the   uinrder   in 
W.lmn^gton,  Delaware,  on  April  29,   1807,  of  Joshua  Pnsey  Sm it 
whom  he  suspected  of  criminal  intimacy  with  his  wife.     Th<f de  e  ce 
was  nisanity.  'icience 

Moore,  Attorney-General,  and  Higgins.  for  tiie  State 
T'.  F  Bayard  i  Wayne  Ma.V.igh  with  him),  for  the  prisoner. 
On  the  tnal,  after  charging  the  Jury  upon  the  law,  wherea  nmn  lin.I. 
nother  rn  the  act  of  adultery  with  his  wife,  and  kills  him,  (i.uj   C' 

The  other  ground  of  defence  relied  on  l,y  the  prisoner,  is  insanity  • 
an  here  ore,  it  is  pro^^er  I  sho.dd  also  explain  to  y....  the  la!:!  ^^ 
M.iuo.t.  Insanity  may  be  either  total  or  partial  in  its  ch-u-uter  i 
aso  it  m^,.  total  and  pennanent;  or  a^l.t.gh  tot:^:;^  i.^t  .e,^ 
"u  be  but  tenjpon.ry  ,n  po.nt  of  dm-ation.  Of  course,  a  person  tot-  llv 
-.1  permanently  insane,  is  incapable  of  committing  a^y  e:^^^;:^, 

(.'{27) 


328 


TIIK    nUUDKN    OF    I'KOOl    OF    INSANITY. 


Stale  V.  Pratt. 


ever;  because  the  will  and  J iiil<5inent  of  the  111:111,  being  overborne  and 
obliterated  by  tlie  nialatl}-,  Jiis  act  cannot  justly  be  considered  the  vol- 
untary act  of  a  free  agent,  but  rather  the  mere  act  of  the  body  without 
the  consent  of  a  directing  or  controlling  mind.  .So,  too,  in  regard  tc 
total,  but  temporary  insanity.  If  the  insanity  be  such,  for  the  time  Ik- 
ing,  as  to  utterly  overwhelm  the  reason  and  conscience,  the  will  ami 
judgment,  the  accused  cannot  be  justly  held  criminally  responsible  fur 
acts  done  during  the  continuance  of  such  temporary  insanity. 

As  I  have  just  intimati  '1,  there  may  exist  a  state  of  mind  called  par- 
tial insanity,  sometimes  denominated  in  tlio  law,  monomania,  or  insane 
delusion,  which  delusion  consists  in  a  fixed  belief  in  the  existence  of 
certain  things  purely  imaginary,  as  real  facts,  when,  in  truth,  they  have 
no  real  existence  whatever.  Insane  delusion  is  that  state  or  condition 
of  the  mind  which  gives  to  airy  nothing  a  local  habitation  and  a  nanu'. 
But  in  this  case,  it  is  insisted  that  the  cause  was  not  imaginary,  but  that 
it  was  real  and  substantial. 

Now,  whether  partial  insanit}'  is  of  such  a  character  as  to  exempt 
a  person  from  criminal  responsibility  for  wrongful  acts,  is  always  a  ques- 
tion of  vital  importance  ;  and  its  solution  must  necessarily  depend  upon 
the  nature  and  intensity  of  the  delusion,  the  force  and  degree  of  its  con- 
trolling power  over  the  will  and  conscience,  and  especially,  and  above 
all,  whether  the  act  which  is  charged  as  constituting  the  crime,  wtis 
committed  under  the  direct  and  irresistible  influence  of  such  insanity. 
Partial  insanity,  even  when  it  is  clearly  shown  to  exist,  is  not  always  oi' 
necessarily  an  excuse  for  crime.  There  are  many  varying  shades  of  it, 
many  degrees  of  it.  It  may  becloud  the  intellect  but  a  very  little,  or  it 
may  becloud  it  utterly,  in  respect  to  a  particular  subject.  In  order  to 
exempt  a  person  from  respo'  ")ility  for  a  criminal  act,  the  controlling 
power  of  the  insanity,  whether  arising  from  delusion  or  from  a  real 
cause,  must  be  so  intense  and  overwhelniing  as  utterly  to  deprive  the 
[larty  of  his  reason  in  regard  to  the  act  charged  as  criminal.  The 
in<iuirv  is  always,  in  a  case  like  this,  narrowed  down  to  the  plain  sharp 
(juestion  of  the  insanitv  of  the  prisoner  at  the  time,  and  in  respect  of  the 
criminal  act  charged  against  him.  Was  lie  at  the  time,  and  as  touching 
that  act,  sane  or  insane?  The  insanity  must  have  specific  reference  to 
the  particular  act  charged  as  constituting  his  offence.  The  question  i> 
not  wl  ^ther  he  was  insane  on  any  subject  whatever,  but  whether  he  w  ;i-> 
insane  in  respect  to  the  particular  act  charged  against  him.  If  it  were 
otherwise,  there  would  be  a  total  exemption  from  punishment  for  crime 
committed  under  any  species  of  partial  insanity,  notwithstanding  tlie 
fact  that  such  insanity  might  not,  in  any  degree,  have  impaired  tlie 


STATE    V.  rUATT. 


329 


Tests  of  Iiisaiiitv. 


borne  and 
tl  tiie  V((l- 
y  without 
regard  ti' 
e  time  Ik- 
will  ami 
nsible  lor 

illed  par- 
or  insane 
stence  of 
they  havi- 
condition 
a  nanu'. 
,  but  that 

>  exempt 
•s  a  qui's- 
end  u[)on 
'  its  con- 
id  above 
ime,  was 
insanity. 
Iwaj's  or 
es  of  it, 
tU',  or  iL 
order  to 
ntrolling 
n  a  real 
)rive  the 
III.     The 
in  sliarp 
!t  of  the 
onehiiig 
ence  to 
islion  i> 
!•  lie  WM-. 

it  were 
r  crime 

\ug  the 
red  the 


mental  capacity  of  tl»e  accused,  to  distinguish  between  right  and  wrong 
ill  respect  to  the  particular  act  charged  as  constituting  his  crime.  If 
tlie  prisoner  had  sulHcient  capacity  at  the  time  to  distinguish  between 
the  rigiit  and  wrong  of  that  particular  act,  if  he  had  sufficient  capacity 
to  know  that  that  act  was  wrong,  he  is  ivsponsil)le  for  it,  and  for  all  its 
fatal  consequences. 

If,  iiowever,  you  shall  be  satisfied  from  the  evidence  before  you  that 
at  the  time  when  the  mortal   blow  was  given,  the   prisoner  luul  not  a 
sufficient  degree  of  reason  to  enable  him  to  distinguish  between  the  right 
and  wrong  of  that  act ;  if,  in  other  words,  his  reason  was  at  tiie  time  so 
overborne  or  obliterated  as  to  render  him  incapable  of  knowing  or  com- 
prehending that  that  act  was  wrong,  he  is  not  criminally  responsible  for 
it,  however  fatal  the  result  may  have  been.     But  if  at  the  time  the  act 
was  committed,  he  possessed  sufficient  mental  capacity  to  compreliend 
the  nature  or  character  of  the  act  and  its  probable  consequence  ;  or  if 
he  understood  the  nature  of  the  act  he  was  doing,  and  had  reason  suffi- 
cient to   know  that  it  was  wrong   to  do  it,   he  is  legally  and  justly 
responsible  for  such  act,  notwithstanding  he  may  at  the  time  have  been 
liiboring  in  some  degiee  under  partial  insanity.     For  after  all  has  been 
said  that  can  be  said  in  elucidation  of  the  subjcv-i;  we  are  compelled  to 
return  to  the  plain    tud  simple  (juestion  whether  the  prisoner,  at  the 
time  he  committed  the  act,  had  sutficient  mental  capacity  to  distingiiisli 
between  right  and  wrong  in   respect  to  that  act.     If   he   had,    he  is 
responsible;  if  he  had  not,  he  is  not  responsible.     Now,  in  this  case, 
the  criminal  act  charged  against  the  prisoner  is  the  felonious  killing  of 
Joshua  Pusey  Smith  with  exi)ress  malice  aforethought,  to  which  charge, 
as  we  have  seen,  he  sets  up  the  defence  of  iiisanit}',  and  claims  at  3'our 
hands  an  acquittal  on  this  ground.     I*  Ije  has  sustained  this  plea  by 
satisfactory  evidence,  he  siiould  be  acqui.,ted ;  if  he  has  failed  to  estab- 
lish the  fact  of  insanity  by  satisfactory  proof,  he  ought  not  to  be  per- 
mitted to   escape  punishment  on  this  ground;    and   if  he  killed  the 
deceased,  he  should  be  convicted.     And  now,  gentlemen,  before  taking 
leave  ^'together  of  the  question  of  insanit}-,  it  is  my  further  duty  to 
state  to  you,  at  least  brietly,  certain  primary  and  cardinal  rules  or  tests, 
by  which,  under  your  oaths,  you  nnist  be  guided  in  order  to  arrive  at 
a  proper  solution  of  this  question. 

The  first  great  rule  on  this  subject  is  this :  Kvery  man  is  presumed  to 
be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be  responsible 
for  his  crimes  until  the  contrary  be  proved  to  the  satisfaction  of  the 
jury.  This  rule  is  fundamental,  and  of  universal  application  ;  it  meets 
you  at  the  very  commencement  of  your  incpiiries,  and  you  must  carry 


;>o() 


THE    HLRDEN    OF   PROOF   OF   INSANITY. 


Statu  V.  Pratt. 


it  with  you  in  all  your  <U'lil)crations.  You  must,  therefore,  gentlemen, 
fully  understand  and  remember  throughout  all  your  investigations,  that 
the  prisoner  is  to  be  considered  by  you,  to  be  a  sane  man,  and  capable 
of  committing  crime,  until  his  insanity  shall  be  clearly  or  satisfactorily 
osial)lished  by  tiie  evidence  ;  on  this  ground  you  must  take  your  stand, 
firmly  and  sipiarely,  if  you  expect  ever  to  arrive  at  a  just  or  proper 
decision  of  this  case. 

In  the  next  place,  insanity  being  luntter  of  defence,  the  second  great 
rule  is,  that  the  burden  of  showing  it,  lies  on  the  prisoner.  It  must  he 
proved  as  any  other  fact  to  the  satisfaction  of  the  jury.  If  the  proof 
does  not  arise  out  of  the  evidence  offered  by  the  Stat«>.  the  prisonei 
nuist  establish  the  fact  of  insanity  l)y  distinct  evidence,  and  prove  it 
b  yond  a  reasonable  doubt;  otherwise  the  presumption  of  sanity  or 
soundness  of  mind  will  remain  unrelmtted  and  in  full  force.  Exhibitions 
of  mere  eccentricity  of  mi:id,  manner  or  'onduct,  mere  passionate 
jealousy,  or  vehement  suspicion  of  adulter}  ,  aowever  well  founded,  or 
^bowing  that  the  i)risoner  was  at  times  alllicted  with  a  sort  of  mental 
strabismus,  or  scpiinting  of  the  mind,  will  not  be  sullicient  to  excuse  him 
from  the  consecpiences  cif  his  criminal  acts.  The  law  requii-es  more 
tlian  this  ;  the  proof  must  go  beyond  this  ;  the  proof  nuist  establish  the 
fact,  that  the  prisoner,  at  tiie  time  he  committed  the  act  of  killing,  was 
incapable  of  distinguishing  between  right  and  wrong  in  respect  to  that 
fatal  act. 

Having  thus  stated  to  you  tiie  general  law  of  felonious  homicide,  as 
well  as  the  rules  and  principles  of  law  applicable  to  the  grounds  of 
defence  relied  on  by  the  prisoner,  I  now  reverse  the  order  in  which  I 
have  presented  these  several  matters,  and  charge  you  in  conclusion  as 
follows :  — 

Fii'tif.  If  you  shall  be  satisfied  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  prisoner,  at  the  time  he  struck  the  mortal  blow  was 
lal)orin<i  under  such  a  disease  of  the  mind  as  to  render  him  for  the  time 
being  incapable  of  distinguisiiing  between  the  right  and  wrong  of  that 
act,  you  should  acquit  bin)  on  the  ground  of  insanity,  and  should  so 
return  your  verdict. 

SecoH(V}i.  If,  however,  you  shall  not  l)e  satisfied  from  the  evidence 
that  he  was,  at  the  time  of  committing  the  act,  an  insane  man,  then  it 
will  be  your  duty  to  consider,  whether  he  found  the  deceased  in  the  act 
of  adultery  with  his  wife  and  then  and  there,  in  the  first  transport  of 
passion,  instantly  inflicted  the  mortal  blow.  If  you  shall  be  satisfied 
from  the  evidence  that  the  prisoner  killed  the  deceased,  Joshua  P.  Smith, 
in  -"Uch  a  position,   and  under  such  circumstances,  then  he  is  guilty  of 


man 
:i<hj 


STATE    t*.   riJATT. 


<>f>l 


Statu  V.  l)aiil)y. 


uianslauglitci'  timlor  oi.r  statute,  ami  your  verdict  sluould  be  guilt}'  of 
iiiansiaughter  in  killing  the  said  Joshua  P.  Smitii,  wiiilst  in  the  act  of 
mltiltery  witii  the  prisoner's  wife. 

Thirdly.  But  if  you  shall  not  he  satisfied  from  tlie  evidence  tiiat  the 
prisoner  found  tile  deceased  in  the  act  of  adultery  with  iiis  wife,  and 
liien  and  there,  in  the  first  transport  of  passion,  instantly  struck  the 
mortal  hlow,  l)ut  that,  on  the  contrary,  he  killed  the  deceased  on  tlie 
srroiiiid  of  previous  acts  of  adidtery,  then  we  say  to  3'ou,  tliat  he  is  guilty 
(if  nuirder,  either  in  tlie  first  or  second  degree*,  and  in  wiiidi  degree  you 
inii-t  determine  from  tlie  evidence. 

And  in  order  to  aid  you  in  passing  on  tliis  question,  I  repeat  to  you  that 
ivlierever  there  exists  a  design  or  intention  deliljerately  formed  in  tlie 
mind  of  the  accused  to  take  life,  and  death  ensues  from  his  act,  it  is 
iiuirder  with  express  malice,  and  therefore,  murder  in  the  first  degiee. 
iUit  wliere  there  exists  no  design  or  intention  to  take  life,  liut  death 
results  from  an  unlawfid  act  of  violence  on  the  part  of  the  accused,  and 
in  the  absence  of  adeouate  or  sufficient  provocation,  it  is  murder  by  or 
witli  implied  malice,  and  consequently  murder  in  the  second  degree. 

Verdict —  "  Not  guiltif  by  reason  of  innanity." 


Idence 
lien  it 
lie  act 
)rt  of 
tisfied 
imith. 
ty  of 


Statk  v.  Dan  by.' 

The  prisoner,  John  Danby,  wasindicteil  for  murder  in  the  first  degree, 
in  killing  Joim  Barnett,  (iliaa  John  Burnett,  in  Wilmington,  Delaware, 
on  October  8,  18(U.     The  defence  was  insanity. 

JA'iojv,  Attorney-General  for  the  State;  D.  M.  Bates  {Gordon  with 
him),  for  the  prisoner. 

The  Court,  Gili'in,  C.  J.,  charged  the  Jury. 

After  recapitulating  the  facts  proved  and  not  disputed  in  the  case,  and 
itinarking  that  if  there  were  no  other  matters  to  be  noticed  in  the  case, 
tlu'y  would  constitute  murder  with  express  malice  aforethought,  and  of 
tlie  llrst  degree  under  the  statute ;  but,  as  this  was  denied  upon  the 
irroiind  of  insanity  on  the  part  of  the  prisoner,  he  would  ikjw  proceed 
ti)  speak  of  that  defence.  In  former  times,  indeed,  as  late  as  the  early 
part  of  the  last  century,  it  was  considered  by  the  courts  that  insanit}'. 
in  order  to  protect  a  person  from  responsibility  for  crime,  must  be  total 
in  its  character,  either  manifesting  itself  in  wild,  ungovernable,  irra- 
liiMiul  and  incongruous  actions,  or  in  stupid  and  passive  imbecility.     In 

'  See  ante,  p.  327. 


332 


THE   BUUDEN    OF    I'UOOF   OF    INSANITY. 


Stiiti!  r.  Diiiiby, 


Other  words,  it  was  held  that  to  ])c  insane,  so  as  to  protect  the  party,  he 
must  liave  no  more  reason  than  a  brute,  an  infant,  or  a  wild  beast.  It 
does  not  seem  to  have  entered  into  tlie  conceptions  of  men  at  tliat  early 
day  that  a  person  might  generally  behave  in  a  perfectly  sensible  maiuu  r 
and  yet  be  insane  upon  some  one  or  more  sulgects.  They  do  not  setiu 
to  have  been  able  to  comprehend  that  he  might  l)e  capable  of  reasoning 
well  or  learnedly  on  most  subjects,  whilst  in  respect  to  some  one  subject 
he  might  be  utterly  deranged.  Such  was  the  old  rule  of  law  —  a  rule 
severe  and  cruel  in  the  extreme.  And  I  am  happy  to  say  to  you,  that, 
in  consequence  of  the  improvements  which  ha\e  since  been  made  in 
medical  science  and  jurisprudence,  more  enlightened  views  as  to  the 
effect  of  disease  upon  the  human  mind  have,  at  length,  pi-evailed  uptjii 
men;  and  th:it  under  the  influence  of  a  clearer,  a  wiser,  and  more 
benevolent  appreciation  of  Christian  obligation,  the  sharp  severity  and 
inhumanity  of  this  ancient  doctrine  has  gradually  given  way,  and  thai 
now,  at  this  day,  the  plea  of  insanity  stands  upon  the  solid  ground  of 
humanit}',  reason,  and  justice. 

A  man  may  be  totally  and  permanently  insane,  and,  in  such  case,  all 
his  acts  are  excused  —  he  is  incapable  of  committing  crime.  This  is 
called,  generally,  insanity.  Or  he  may  be  totally,  but  temporarily,  in- 
sane —  that  is,  altogether  insane  on  all  subjects  for  a  time,  and  insane 
to  such  a  high  degree  that,  for  the  time  being,  the  reason,  the  con- 
science, the  will,  and  judgment  are  utterly  overborne,  overwhelmed,  and 
obliterated,  so  that  an  act  done  during  the  continuance  of  the  malady 
cannot  be  said  to  be  a  voluntary  act,  or  the  act  of  a  free  agent,  but  the 
mere  act  of  the  l)ody  without  the  consent  or  concurrence  of  a  control- 
ling mind,  being  the  result  rather  of  an  irresistible  and  uncontrollable 
impulse.  For  acts  done  during  the  existence  of  such  a  state  of  insanity 
the  accused  is  not  criminally  responsible.  Or  a  man  may  be  but  pai- 
tially  insane,  and  where  this  is  the  case,  it  is  called  monomania,  or 
insane  delusion,  and  this  insane  delusion  consists  in  a  belief  of  the 
existence  of  certain  imaginary  things  as  facts,  but  which  are  not  facts, 
and,  thereiore,  have  no  existence,  and  which  no  I'casonable  or  rational 
person  could  or  would  believe.  Now,  whether  such  paitial  insanity  can 
be  held  sufficient  to  exempt  a  person  from  responsibility  for  criminal 
acts  will  depend  upon  the  peculiar  circumstances  of  each  particular  case. 
The  nature,  the  force,  and  effect  of  the  delusion,  the  degree  of  its  in- 
tensity and  controlling  power,  and  whether  the  act  done  was  committed 
under  the  direct  and  irresistible  influence  of  such  insane  delusion,  are 
matters  of  vital  importance  in  determining  the  question  of  responsibil- 
ity.    It  is  not  every  wild  and  frantic  humor  of  a  man,  or  strange  and 


TEST   OF   IXSAXITY. 


333 


Stiitc  V.  Diiuby. 


2  party.  Ii,. 
beast.     It 

that  t'aiiy 
)le  maiiiu  r 
y  not  setin 

reasoning 
ne  subject 
V  —  a  rule 
you,  that, 
I  made  in 
as  to  tiu' 
iled  upon 
and  nioiv 
verity  and 

and  tiiat 
ground  of 

1  case,  all 

This  is 

rarlly,  in- 

lul  insane 

the  con- 

med,  and 

e  malady 

;,  but  till' 

.  control- 

itroUahlc 

insanity 

but  pur- 

lania,  or 

f  of  the 

ot  facts, 

rational 

nityciiii 

criuiinal 

lar  case. 

f  its  in- 

nraittcd 

ion,  are 

onsibil- 

ige  and 


unaccountable  language  or  conduct  that  will  show  liim  to  be  laboring 
under  insanity.  The  law  retiuires  souu'thiiig  more  than  this.  Nor  is 
partial  insanity  or  insane  delusion  always,  or  necessarily,  an  excuse  for 
crime.  On  the  contrary,  it  can  otdy  be  so  cousidered  where  it  utterly 
di'prives  the  party  of  his  reason  in  regard  to  the  act  charged  as  criminal. 

The  (luestion  is  not  whether  he  was  insane  upon  any  subject  whatever 
but  whether  he  was  insane  in  respect  to  the  particular  act  allege<l  as 
(•(.nstituting  his  offence.  If  it  were  otherwise,  there  would  be  an  al)so- 
utc  immunity  from  punishment  for  crime  cominittc'  under  any  species 
of  insane  delusion  whatever,  although  such  insane  delusion  might  not 
in  any  degree  becloud  or  obliterate  the  mental  capacity  of  the  accused 
to  distinguish  l)etween  right  and  wrong  in  regard  to  the  particidar  crim- 
inal act  with  which  he  stands  chargod.  If  he  is  capable  at  the  time  of 
distinguishing  between  the  right  and  wrong  of  that  act,  if  he  knows 
and  understands  that  that  act  is  wrong,  he  is  responsible.  But  if  he  has 
not,  at  the  time,  a  sulHcient  degree  of  reason  to  distinguish  between  the 
riiiht  and  wrong  of  that  act,  if  he  does  not  know  and  understand  that 
that  act  is  wrong,  he  is  not  responsible.  And  therefore,  although  he 
maybe  laboring  under  partial  insanity,  if  he  still  understands  the  nature 
and  character  of  his  act  and  its  conse(iuences,  if  he  has  a  knowdedge 
that  it  is  wrong,  and  mental  power  sufficient  to  api)ly  that  knowledge  to 
Ills  own  case,  and  to  know  that  if  he  (b)es  the  act  he  will  do  wrong, 
such  partial  insanity  is  not  sulHcient  to  exempt  him  from  resi)onsibility 
for  crime.  This  doctrine  has  been  fully  and  clearly  established  by 
numerous  well-considered  decisions,  both  in  England  and  in  this  coun- 
try. The  Inquiry,  therefore,  in  such  cases,  as  you  must  have  already 
perceived,  must  always  be  brought  down  to  the  simple,  but  sharp,  ques- 
tion of  the  sanity  or  insanity  of  the  accused  at  the  time  and  in  respect 
to  the  criminal  act  done  by  him.  In  this  case  the  criminal  act  charged 
afrainst  the  prisoner  at  the  bar  is  the  felonious  killing  of  John  Barnett 
with  express  malice  aforethought.  To  this  charge  the  prisoner  sets  U|) 
the  defence  that  at  the  time  that  he  did  the  3,et  he  was  an  insane  man, 
and  on  this  ground  he  claims  an  acquittal  at  your  hands. 

And  now,  gentlemen  of  the  jury,  having  made  these  few  remarks 
touching  the  subject  of  insanity  gcnerall3%  and  in  explanation  of  the 
principles  of  law  involved  in  the  proi)er  consideration  of  the  question  at 
issue,  I  now  proceed  to  state  to  you  briefly  those  rules  and  tests  by  the 
li<:htof  which,  it  is  your  duty  as  good  citizens  and  sworn  jurors  to  be 
guided  in  investigating  and  considering  the  evidence  before  you,  and  in 
making  up  the  verdict  which  you  shall  feel  yourselves  constrained  to 
return  as  the  conscientious  residt  of  your  deliijcrations.     These  rules 


;534 


THE    BURDKN    OF    TKOOF    OF    INSANITY 


State  r.  Diinhv. 


arc  l)Ut  few  in  mnnbLT,  and  are  as  plain  and  simple  as  tlio  nature  of  tin 
subject  will  admit  of.    Tliey,  in  fact,  sul)8tantially  einl»ody  all  the  leaniin- 
and  all  the  law  on  this  subject.     Whatever  difllcnlty  or  erabarrassnu'iii 
you  may  encounter  in  your  investigations  will,  I  am  sure,  mainly  arise  ih 
applying  the  facts  before  you  to  the  law  of  the  case.     I  do  not  know  tli;i; 
you  will  have  any  diffleulty  of  the  kind,  but  if  you  should,  I  feel  \vr\ 
confident  that  a  careful  examination  and  consideration  of  thetestimoii\ . 
coupled  with  an  honest  and  earnest  purpose  of  mind  and  heart  to  ariivt 
at  the  truth,  will  lead  you  to  a  just  and  >atisfactory  conclusion  of  yom 
labors.     The  (irst  rule,  gentlemen,  is  this:  Everyman  is  presumed  toln 
sane,  and  to  possess  a  sutlicient  degree  of  reason  to  be  responsiI)le  for 
iiis  crimes,  until  the  contrary  be  proved  to  the  satisfaction  of  the  jiir\ 
Tins  rule  is  primary  ami  fundamental.     It  meets  and  challenges  yom 
attention  at  the  very  threshold  of  your  incjuirii-s.     The  prisoner  at  tin 
I)ar,  therefore,  is  to  be  considered  by  you  to  be  a  sane  man  and  eapalil 
(tf  committing  crimes  until  the  contrary  be  clearly  and  satisfactoril\ 
established  b}-^  the  evidence.     You  will,  therefore,  gentlemen,  take  tlii-^ 
rule  with  you  as  the  very  ground  upon  which  j'ou  must  stand  in  prose- 
cuting yoiu'  inquiries  upon  this  (luestion.     Secondly,  insanity'  being  mut- 
ter of  defence,  the  onus  or  l)urden  of  showing  or  proving  it  lies  on  tlie 
prisoner.     It  is  true  such  proof  may  sometimes  arise  out  of  the  evidener 
offered  bv  the  State,  but  if  it  does  not  so  arise  it  must  be  made  on; 
from  distinct  evidence  offered  on  the  |)art  of  the  prisoner ;  in  either  ca^i 
it  niusl  be  clearly  sufflcieut  to  prove  the  fact  of  insanity,  otherwise  tie 
presumption  of  sanitv,  or  soundness  of  mind,  will  stand  unrebutted  ami 
in  full  force.     But  to  establish  a  defence  on  this  ground,  it  must  be 
clearly  proved  that  at  the  time  of  committing  the  act  of  killing,  the  pris- 
oner was  laboring  under  such  a  defect  of  reason  from  disease  of  mind, 
as  not  to  know  the  nature  and  quality  of  the  act  he  was  then  doing,  oi 
if  he  did  know  it,  that  he  did  not  know  he  was  doing  what  was  wrony. 
If.  therefore,  this  condition  of  insanity  has  been  clearly  and  satisfae- 
torily  establl^■hed  by  the  evidence,  3'ou  ought  to  accjuit  the  prisoner. 
If,  on  the  cortrary,  he  has  failed  to  establish  clearl}'  and  satisfactorily 
such  a  condition  of  insanity  as  I  have  described,  it  will  be  your  duty, 
however  painful,  to  return  a  verdict  of  guilty  in  nuinner  and  form  as  lie 
stands  indicted.     I  say  guilty  in  ni'iuner  and  form  as  he  stands  indicteil, 
because  if  guilty  at  all,  he  is  .'guilty  of  murder  in  the  first  degree. 

You  thus  perceive,  gentlemen,  that  the  prisoner's  capacity  or  want  (^f 
capacity  at  the  time  to  comprehend  the  difference  between  right  aiul 
wrong  in  respect  to  the  very  act  with  which  he  stands  charged,  is  the 


IIUKDEN   OF    riiOOF   0\    IMUSONKK. 


33r) 


Mtate  r.  S|K'iut.  r. 


itlire  of  til,. 
Lhe  leurniii- 
'arniHsiiu'iit 
I'ly  »ri.".c  ii, 
tknow  tli;i; 
I  feel  voiy 
testitnoiiy. 
't  to  luiivt 
n  of  yon  I 
lined  to  In 
3iisil)le  for 
f  the  jiin 
Hfres  yniii 
iier  tit  tilt 
1(1  capalij. 
sfactorilv 
,  take  tlii,-, 

in  pif).si-- 
>eingjuat- 
ies  on  the 

evideiitv 
msifle  on; 
itlicrc:iM 
iwiso  thr 
itted  and 

must  III' 

tlie  pri>- 
of  mind, 
loing,  (I! 
wrony. 
satisfac- 
•risoniT. 
'actoriiy 
u"  duty, 
in  as  lie 
idicted, 

want  of 
lit  and 

,  is  till' 


tost  by  wliicli  must  he  lU'tennined  the  (juestion  of  his  criminal  resi)oii- 
sil»ility. 

I  have  now  lluishcd  what  I  iiad  to  say  on  the  law  of  tiiis  case.  It  is 
the  duty  of  tiic  court  to  explain  the  law  to  tiie  jury.  I  have  endeavored 
to  discharge  this  duty  according  to  my  l.est  judgment  and  most  coiisei- 
t-ntious  convictions.  But  your  duty,  gentlemen,  which  c(.minence(l 
with  mine,  is  not  yet  ended;  the  most  important  part  of  liiis  duty  yet 
ri'inains  to  be  done ;  and  I  pray  God  that  he  will  not  only  impress  your 
hearts  with  a  due  sense  of  the  solemn  responsibility  which  now  rests 
ui)on  you,  but  that  he  will  also  bo  pleased  to  enlighten  your  minds  by 
imparting  to  you  some  portion  of  his  own  great  wisdom,  so  that  yoii 
may  be  enaliled  to  arrive  at  the  very  truth  and  right  of  this  cause,  and 
a  true  verdict  give  according  to  the  evidence. 

Verdict  —  NotguUt}ih;i  reason  of  insanity. 


BURDEN  OF  PROOF  0\   PRISONER -TEST -CONTINUANCE  OF  INSAN- 
ITY—DECLARATIONS OF  DECEASED. 

State  ?*.  Spencer. 

[21  N.  J.  (L.)  !;»(;.] 

In  the  Supreme  Court  of  Neir  Jersey,  1840. 

Before  IIounhlowkk,  J. 

).  The  Test  of  Insanity  is  whether  the  acciisecl  at  the  time  of  tlie  eoinmi^.-iioii  of  tlie  crime 
was  conscious  he  was  doing  what  lie  oiiglit  not  to  dn. 

2.  The  Burden  of  Proof  is  on  the  accused. 

3.  The  Continuance  of  Insanity  is  presumed  unle,-s  a  nicid  interval  i-  .shown. 
1-  Declarations  of  the  deceased  are  no  evidence  of  the  insanity  of  the  iirisoner. 

IloKNni.owKK.  J.,  charging  the  jury. 

I  MOW  come  to  that  part  of  the  cause  which  constitutes  the  main 
ground  of  defence  in  this  case,  namely:  Insanity.  This  question  in 
the  nature  of  things,  is  the  first  one  for  you  to  consider.  For  it  is  of  no 
consequence  what  circumstances  attended  the  homicide,  or  in  what 
manner  the  crime  is  varied  in  the  eye  of  the  law  by  those  circumstances, 
if  the  i)risoner  was  insane  at  the  time  of  committing  the  deed.  If  he 
was  insane,  he  is  not  amenable  to  the  law  at  all  for  what  he  did.  A 
person  who  is  out  of  his  mind,  and  docs  not  know  at  the  time  that  what 


33r, 


TIIK    miUDKN    OF    rilOOF   OF    INSANITY. 


State  V.  Spencer. 


he  is»loiii<;  is  wronj?,  is  not  lU'couiituhlc  for  the  nots  coiuinitted  l»y  hiin 
while  ill  that  Mtoto.  If  he  coiniiiit  ii  hoinicitle  wiiilc  in  tliiil  stiitc,  il  is 
not  muH'ssjiry  to  loolv  into  tlie  hiw  of  homicide  at  Jill  to  asctTtiiin  the 
distiiuitions  which  tin;  I;iw  makes  l)etwecii  diflcront  homicides;  for  sncli 
a  person  is  not  nndcr  the  law  —  lie  is  not  amenable  to  it.  The  law  is  till 
to  be  set  ont  of  the  (|n«'stion  as  to  him.  lie  is,  in  one  sense,  an  oiil- 
law,  or  ratlier,  he  is  ont  of  the  law,  and  on<;ht  to  be  seclnded  from 
society,  in  order  tliat  those  who  are  nnder  the  protection  of  the  hiw, 
m.ay  not  l)e  injured  by  him. 

Was  then  the  prisoner  at  the  bar  insane  at  the  t«me  of  committinjr  the 
homicide? 

It  is  dililctilt  to  dellne,  in  set  terms,  what  insanity  is.  We  all  have  u 
notion  of  what  it  is,  and  there  is  a  great  variety  of  i)hrasc8  by  wiiich  we 
arc  used  to  designate  it.  We  say  of  a  man  who  is  insane,  and  has  com- 
mitted  some  atrocious  act  while  in  that  state,  "  he  was  out  of  his  head," 
"  he  had  not  his  senses  at  the  time,"  ''  his  mind  was  disordered,"  "  he 
was  crazy  when  he  did  it,"  "  he  did  not  know  at  the  time  what  ho  was 
about,"  aii<l  otiier  language  of  similiar  import.  The  simple  question  for 
you  to  decide,  geiitlcmi'ii,  is,  "  Wlietherthe  accused  at  the  time  of  doing 
the  act  was  conscious  tliat  it  was  an  act  which  he  ought  not  to  do?"  Jf 
he  was  conscious  of  this,  he  cannot  be  excused  on  the  score  of  insanity  — 
he  is  then  amenable  to  the  law,  and  in  that  case,  if  such  is  your  opinion, 
from  the  evidence  of  the  case,  you  will  have  to  go  on  to  the  considera- 
tion of  the  circumstances  attending  the  act,  in  order  to  distinguish  to 
what  kind  of  homicide  it  belongs  according  to  the  law  of  the  land. 
.  But  if  it  is  your  opinion  that  at  the  time  of  committing  the  act,  ho 
was  unconscious  that  he  ought  not  to  do  it,  or  in  other  words,  incapable 
of  distingnisiiing  right  from  wrong,  in  a  moral  point  of  view,  then  yon 
have  notiiiiig  furtlier  to  do,  but  render  a  verdict  of  acquittal  on  tiie 
score  of  insanity. 

And  here  I  am  not  sure  but  I  miglit  safely  leave  this  branch  of  tiie 
subject  in  your  hands  without  further  counnent,  for  I  fear  that  furtlier 
remark  might  tend  rather  to  confuse,  than  to  assist  you.  But  prolialtly 
counsel  on  both  sides  expect,  and  public  justice  may  require,  that  I 
siiould  lay  down  to  you  what  the  law  is  as  to  what  amounts  to  proof  of 
insanity,  and  as  to  the  degree  of  weight  which  different  kinds  of  jiroof 
should  have. 

I  will  remark,  then,  in  the  first  place,  that  the  law  presumes  a  in:iii 
sane  until  the  contrary  is  proved.  Hence,  it  has  been  repeatedly  decided 
lliat  the  evidence  of  the  prisoner's  insanity  at  the  time  of  the  act  ouglit 
to  be  clear  and  satisfactory.     If  the  evidence  leaves  it  only  a  doubtful 


TIURDEN    Ol'   rUOOF   ON    rUISONKU. 


337 


Trior  Insanity  Insiilllcliiit. 


incstioii,  tlio  iirc'Hiiinption  of  llic  law  turns  the  sciiU;  in  fiivor  of  tlic 
-iiinity  of  tlio  piiHitnoi'.  In  hik'U  civsi's  tin;  luw  IioIUh  tlio  prbtjuor  rt-spou- 
siltU'for  his  actions. 

If  it  wore  doiihtful  whether  the  prisoner  (;oniinitte(l  the  net,  tiien  the 
jury  oti;,'lit  to  Ihul  in  his  favor;  for  wlien  tiie  Jury  tiiid  a  reasonaide 
unround  for  doubt  wliether  the  prisoner  conunitted  tlie  iioinieide,  they 
()U;,flit  to  acijuit.  Tlien  the  presunn)ti(jn  of  law  is  in  favor  of  tiie  inno- 
rcuce  of  the  party ;  every  nuui  is  presumed  to  be  innoeeni  until  ho  is 
proved  fiuilty. 

I5ut  when  it  is  admitted,  or  clearly  proved  that  he  committed  tlie  act, 
but  it  is  insisted  that  he  was  insane  at  the  time,  uhm  ine  evidence  leaves 
the  (juestion  of  insanity  in  doubt ;  then  the  jury  oufjfht  to  lind  a<;ainst 
Iiim.  For  tiiere  the  otla-r  presumption  arise  naiuoly,  tli'il  every  mau 
is  presumed  sane  until  the  contrary  is  clearly  i)rove(l. 

I  (\o  311 't  mean  to  say  the  Jury  are  to  consider  hiio  >ane.  if  tliere  is  Mie 
least  shadow  of  doubt  on  the  sul)Ject,  any  more  than  I  would  say  they 
iiuist  ac<piit  a  man  wiierc  there  is  the  least  shadow  of  doubt  as  to  his 
li:i\Mng  committed  the  act.  What  I  mean  is,  that  when  the  ev  i  Nmu-o  of 
sanity  on  the  one  side,  and  of  insanity  on  the  other,  leaves  the  scale  in 
ciliuvl  balance,  or  so  nearly  poised  that  the  Jury  have  a  reasonable  doubt 
nf  lii3  insanity,  then  a  man  is  to  be  considered  sane  and  responsibli;  for 
wliiit  he  docs.  But  if  the  probal)ility  of  his  being  insane  at  the  time  is, 
from  the  evidence  in  the  case,  very  strong,  and  tliere  is  but  a  slight  doubt 
of  it,  tlieu  the  Jury  would  have  a  right,  and  ought  to  say,  that  the  evi- 
dence of  his  insanity  was  clear. 

The  proof  of  insanity  at  the  time  of  committing  the  act  ought  to  be 
as  clear  and  satisfactory,  in  order  to  accjuit  him  on  the  ground  of  insan- 
ity, as  the  proof  of  committing  the  act  ought  to  be  in  order  to  lind  a 
suae  man  guilty. 

In  the  second  place,  proof  that  a  man  has  at  some  former  period  of 
his  life  l>een  atllicted  with  such  insanity  as  would  render  him  an  unac- 
I'ountable  being,  and  exonerate  him  from  punishment,  is  not  sufficient, 
if  it  be  also  proven,  or  comes  out  in  the  evidence  that  he  has  at  any 
lime  since  heen  so  far  restored  to  his  right  mind  as  to  be  capable  of 
moral  action  and  of  discerning  between  right  and  wrong.  Otherwise,  a 
man  who  iiad  once  been  out  of  his  right  mind,  might  ever  afterwards 
cDinmit  any  crimes  he  chose  without  being  held  responsible  for  it.  If  it 
were  true,  that  insanity  never  left  a  man,  after  once  clouding  his  mind, 
then  it  would  be  enough  to  exculpate  him  to  prove  that  he  had  once 
liLon  insane.  But  it  often  occurs  tluitraen  have  turns,  or  "  spells  "  of 
insanity,  and  then  enjoy  intervals  of  entire  soundness  of  mind.  Now 
22 


338 


THE    BURDEN    OF   I'UOOF   OF    INSANITY. 


State  V.  Spencer. 


althougli  tliey  would  be  excusable  for  what  they  clid  in  the  paroxysm  of 
madness,  they  are  by  no  means  excusab!  ^  for  what  the}-  do  when  the-y 
have  their  senses.  The  question  for  you  to  determine  is,  not  whether 
the  piisoner  was  ever  insane  in  the  former  part  of  his  life  ;  but  wiiether 
he  was  insane  at  the  time  he  committed  the  deed  for  wliich  he  is  now  on 
trial.  His  having  Ijeen  insane  once,  or  several  times  before,  may  ren- 
der it  more  probable  that  he  was  insane  at  tlie  time  of  the  homicide,  if 
there  is  any  direct  proof  that  he  was  insane  at  the  time.  But  stan  ling 
by  itself  it  proves  nothing  where  tlie  State  shows  a  subsequent  return  to 
reason.  Evidence  of  former  attacivs  of  insanity  amounts  to  about  this : 
It  does  not  show  that  the  prisoner  was  insane  at  the  time  of  tlie  homi- 
cide ;  but  if  there  is  any  independent  evidence  that  he  was  so,  the  former 
insanity  increases  the  probability.  The  same  remarks  may  be  made 
with  regard  to  the  evidence  of  insanity  in  liis  family.  Standing  alone,  it 
amounts  to  nothing.  It  is  no  evidence  that  the  prisoner  was  insane  at 
the  time  of  the  homicide.  But  if  there  is  some  independent  evidence 
that  he  was  insane  at  the  time  of  the  homicide,  it  increases  the  proba- 
bility that  he  may  have  been.  But,  standing  alone,  it  is  the  weakest  kind 
of  evidence,  and  but  little  consideration  ought  to  be  given  to  it.  It  is 
undoubtedly  true  that  some  families  are  more  subject  to  insanity  than 
others.  But  that  is  no  reason  Avhy  the  sane  members  of  the  famil}' 
should  be  free  from  responsibility  for  their  own  misdeeds.  Nor  is  it  any 
very  strong  evidence  tliat  tlie  members  of  the  family  are  tainted  with 
the  like  disorder.  I  should  feel  hurt  to  suppose  that  my  neighbors 
entertained  a  suspicion  that  my  mind  was  disordered,  merely  because  I 
had  an  unfortunate  father  or  brother  who  was  subject  to  turns  of  insan- 
ity. So  feeble,  indeed,  is  the  influence  which  testimony  of  this  kind 
ought  to  have,  that  many  respectable  jurists  decide  against  its  admis- 
sibility at  all.  But  at  all  events,  it  can  only  have  the  effect  of  adding 
to  tlie  possibility  that  the  prisoner  mav  have  been  insane,  wlien  ho 
committed  the  homicide;  standing  alone,  it  is  no  proof  whatever  that 
he  was.  I  again  repeat  what  you  are  ahvays  to  bear  in  mind,  that  this 
ground  of  defence  which  we  have  been  considering  can  be  of  no  avail 
to  the  prisoner,  unless  from  the  evidence  you  are  convinced  beyond  a 
reasonable  doubt  that  the  prisoner  was  insane  at  the  time  of  the  homi- 
cide. 

In  the  third  place,  as  to  the  degree  of  insanity  under  wliich  the  pris- 
oner must  be  proven  to  have  been  laboring  at  the  time  of  the  homicide,  in 
order  to  his  exculpation.  If  you  are  satisfied  beyond  a  reasonable  doubt 
that  he  was  insane,  the  next  question  for  you  to  consider  will  he. 
whether  his  insanity  was  such  as  to  render  him  incapable  of  committing 


DEGIIEE    OF    INSANITY   WHICH   EXCULPATES. 


330 


Insane  Delnsions. 


crime.  For  there  are  many  kinds  of  insanity,  an<l  there  are  all  degrees 
of  insanity;  and  it  is  notever}^  kind,  nor  every  degree  that  will  render  a 
man  irresponsible  for  acts  of  atrocity.  Almost  all  the  books  declare 
that  "  in  criminal  cases,  in  order  to  absolve  the  party  from  gnilt  a  higher 
degree  of  insanity  must  be  shown  than  would  l)e  sullicient  to  disciiarge 
him  from  the  obligations  of  his  contracts."  ^  "In  cases  of  atrocity,  the 
relation  between  tiio  disease  and  the  act  should  be  apparent."  -  As  I 
said  before,  if  the  prisoner  at  the  time  of  committing  the  act  was  con- 
scious that  he  ought  not  to  do  it,  the  law  holds  him  responsible,  and  he 
cannot  be  exculpated  on  the  ground  of  insanity,  although  on  some  sub- 
jects he  ma}'  have  been  insane  at  the  time.  There  is  manj'  a  man  whose 
mind  is  not  right  on  some  subjects,  who  is  nevertheless  perfectly  him- 
self on  all  other  subjects,  and  who  knows  as  well  as  j'ou  or  I  what  is 
right  and  wrong ;  and  whether  or  not  he  would  be  doing  right  or  wrong 
in  lifting  up  a  murderous  hand  against  his  neighbor.  Several  men  of  this 
kind  have  come  under  my  own  observation.  One  man  will  think  himself 
marie  of  glass,  another  will  imagine  himself  to  be  a  monarch  or  a  prophet, 
or  one  of  the  heroes  of  histor3'',  another  will  be  wild  in  some  of  his  reli- 
gious views,  and  yet  each  and  all  will  know  perfectly  well  that  it  would 
1)0  wrong  to  kill  a  man  out  of  revenge  or  provocation.  Whatever  the 
insanity  of  a  person  may  amount  to,  if  he  is  conscious  at  the  time  of 
committing  an  atrocious  act,  and  has  reason  enough  to  know  that  he 
ought  not  to  do  it,  he  is  guilty  in  the  e^'e  of  the  law.  This  was  so  ex- 
pressly decided  b\'  all  the  judges  of  England,  except  one,  in  a  late  case 
in  that  country.^  The  question  was  put  to  them,  ''What  is  the  law 
respecting  alleged  crimes  committed  by  persons  atllicted  with  insane  de- 
lusion in  respect  of  one  or  more  particular  subjects  or  persons,  as,  for 
instance,  when  at  the  time  of  the  commission  of  the  alleged  crime,  the 
accused  knew  he  was  acting  contrary  to  law,  but  did  the  act  complained 
of  with  a  view,  under  the  influence  of  insane  delusion,  of  redressing  or 
avenging  some  supposed  grievance  or  injury,  or  of  producing  some 
supposed  public  benefit?"  To  this  question  the  judges  answered  as 
follows:  "Assuming  that  the  question  is  confined  to  those  persons  who 
labor  under  srcli  partial  delusion  only,  and  ai-e  not  in  other  respects 
insane,  we  are  of  opinion  that  notwithstanding  the  part}'  accused  did  the 
act  complained  of  with  a  view,  under  the  influence  of  insane  delusion,  of 
redressing  or  avenging  some  supposed  grievance  or  injury,  or  of  pro- 
ducing some  public  benefit,  he  is  nevertheless  punishable  according  to 


'  2  Greenl.  on  Ev. ,  p.  296. 
-  Lil.   Ki.-kine  ia  Ilndflcld'e  Cane,  ISOO: 
Cooper's  Tracts  on  Med.  Juris.,  p.  318. 


»  McXaghten's  Case,  2    Greenl.  on   Ev. 
301,  note. 


340 


THE    BURDEN    OF   PROOF   OF   INSANITY. 


State  V.  Spencer. 


the  nature  of  the  crime  committed,  if  he  knew  at  the  time  of  committing 
such  crime,  that  lie  was  acting  contrary  to  law."  In  the  same  case  the 
Judges  also  expressed  themselves  of  opinion,  that  where  a  man  commits 
an  act,  criminal  in  its  nature,  who  laboi's  under  any  particular  delusion, 
as  that  every  dog  he  sees  in  the  street  is  mad,  or  any  other  particular 
delusion,  his  act  as  to  criminality  is  to  be  judged  of  as  if  the  thing  ho 
imagines  to  be  true  Avere  really  so.  If  a  man  is  under  the  delusion  that 
I  am  going  to  take  his  life,  he  would  be  exculpated  in  taking  iny  life. 
Hut  if  he  acted  only  under  the  delusion  that  I  was  going  to  carry  off  his 
pi'opcrty  or  pick  his  iiocket,  he  would  not  be  exculpated  for  taking  my 
life,  for  those  facts,  if  true,  would  be  no  justification  of  his  act,  unless 
he  was  also  under  the  insane  delusion  that  he  had  a  right  to  take  my  life 
for  such  an  act.  So  you  see,  gentlemen,  that  although  a  man  may  he 
partially  insane,  the  law  does  not  exculpate  him  any  further  than  the 
extent  of  his  insanity.  And  the  whole  matter  may  be  summed  up  in 
this :  If  the  evidence  makes  it  dear  to  your  minds,  beyond  a  reasonable 
doubt,  that  the  prisoner,  at  the  time  of  the  act,  was  unconscious  that  he 
ought  not  to  do  it,  he  is  to  be  acquitted  ;  but  if  not,  then  he  cannot  be 
acquitted  on  the  ground  of  insanity,  whether  he  was  partially  insane  or 
not. 

It  may  be  thought  by  some  persons  that  this  is  a  hard  law,  from  the 
possibility  that  some,  who  ought  not  to  be  held  accountable  for  what 
they  do,  may  lie  involved  in  tl«e  punishment  due  only  to  sane  and  con- 
scious criminals.  But  such  persons  should  reflect  on  the  object  of  pun- 
ishment. The  object  of  legal  punishment  is  principally  to  prevent  crime 
and  preserve  the  peace  of  societ3\  This  is  to  be  effected  so  far  as  pos- 
sible without  injustice  to  any.  But  human  laws  are  imperfect  — 
human  knowledge  is  imperfect ;  and  if  the  law  is  to  be  administered 
upon  such  rules  only  as  would  render  it  an  impossibility  that  any  one 
should  be  improperly  condemned,  or  that  error  or  injustice  should  ever 
be  done,  then  the  administration  of  justice  would  be  so  impracticable 
that  our  courts,  both  civil  and  criminal,  might  as  well  be  closed.  Crim- 
inals would  constantly  escape  merited  punishment,  and  the  injured  par- 
ties, or  the  friends  of  the  murdered,  seeing  the  inefficiency  of  the  law, 
would  take  the  law  into  their  own  hands.  This  state  of  things  has  been 
exemplilied  to  a  considerable  degree  already  in  our  own  countr}^  and  I 
pray  I  may  never  see  the  day  when  it  shall  be  exemplified  in  this  State. 
We  must  administer  the  laws  with  firmness,  however  much  we  may  in  our 
hearts  pity  the  culprit ;  and  we  are  bound  to  be  jealous  of  those  de- 
fences, which  call  for  the  exculpation  of  the  offender,  when  the  crimi- 
nal act  is  clearly  proved  upon  him.     Otherwise,  we  shall  have  no  security 


DEFENCE    OF    IXSAXITY    NOT   FAVOllED. 


341 


rassioii  is  Not  Insaiiltv, 


for  our  lives,  or  the  lives  of  our  families.  Tliese  considerations  lie;  at 
the  foundafion  of  the  law  of  insanit}',  as  I  have  expounded  it  to  you, 
gentlemen,  in  relation  to  excusing  a  man  from  the  conscqut-nccs  of  his 
own  atrocious  acts.  The  law  is  stringent  and  suspicious,  and  it  has  to 
be  so.  If  it  were  not  so,  we  should  be  ©verrun  with  crimes  and  atroci- 
ties committed  under  the  plea  of  insanitj',  or  of  some  insane  di-lusiou. 
This  is  all  that  is  meant  when  it  is  said  that  insanity  is  a  aefence  not 
favored  in  the  law.  It  is  not  intended,  and  God  and  humanity  forbid  it 
ever  should  be,  that  courts  sliould  frown  upon  insanity  as  a  defence,  or 
that  if  a  jury  are  satisfied  beyond  a  reasonable  doubt  that  tlie  act  com- 
plained of  was  committed  wiien  the  accused  was  insane,  they  should  for 
one  moment  hesitate  in  pronouncing  a  verdict  of  acquittal,  but  is  in- 
tended that  they  should  see  to  it,  that  the  defence  is  fully  sustained  by 
the  evidence. 

As  germane  to  these  remarks,  it  is  also  my  duty  to  remind  3'ou, 
gentleman,  that  outbursts  of  ungovernable  passion  do  not  excuse  a  man 
for  any  acts  of  atrocity  he  may  commit  under  their  intluence ;  on  the 
contrary  they  rather  aggravate  his  guilt.  Men  are  hound  to  control 
their  passions ;  and  if  they  suffer  them  to  run  away  with  their  reason  anil 
senses,  they  ought  to  suffer  for  it.  One  of  the  very  objects  of  having 
laws  to  govern  us,  is  to  protect  us  from  the  fmy  of  ungovernable  pas- 
sion—  whether  that  be  anger,  hate,  envy,  jealousy,  or  any  other  of  the 
malignant  passions,  a  man  is  equally  culpable  for  suffering  himself  to 
be  goaded  on  by  any  of  them  to  the  conunissiou  of  crimes  at  which 
humanity  shudders.  There  are  cases,  it  is  ti'ue,  where  long  and  fre- 
quent indulgence  in  violent  passions  has  destro3'ed  the  balance  of  the 
mental  powers,  completely  dethroned  the  reason,  and  terminated  in  con- 
firmed insanity.  Then,  of  course,  the  man  is  no  longer  accountable. 
He  is  then  only  fit  for  the  asylum  or  the  mad-house. 

Fourthly.  Having  enlarged  thus  much  on  this  difficult  subject,  it 
seems  proper  that  I  should  add  a  few  observations  on  the  nature  and 
weight  of  the  evidence  which  is  up. tally  adduced  to  prove  insanity. 
The  man  who  commits  a  heinous  offeticc  against  God  and  man,  is  un- 
doubtedl}''  very  unwise.  The  Sacred  Volume  calls  him  a  fool ;  and  in 
one  sense,  he  is  a  imidman.  He  madly  gives  way  to  the  instigations  of 
tie  evil  one,  or  of  his  own  evil  lieart.  littt  this  is  not  the  kind  of  mad- 
ness that  is  to  excuse  a  man  from  the  punishment  due  to  his  crimes. 
If  it  were,  there  would  be  no  such  thing  as  crime,  every  act  of  crime 
would  only  be  proof  of  the  insanity  of  the  perpetrator ;  and  the  greater 
the  crime,  the  stn^nger  the  proof.  When  people  say  a  man  must  have 
been  crazy  to  have  committed  such  an  ^ot,  they  must  be  utiderstood  as 


342 


Tin:  m'RDKX  of  pkoof  of  insanity. 


SUto  V.  Spencer. 


speaking  figuratively.  It  is  too  unhappily  true,  that  man,  conscious, 
sensible,  reasoning  man,  is  often  found  prostituting  his  nature  so  low, 
as  to  l»e  guilty  of  crimes  of  the  deepest  dye. 

I  cannot  yield  to  the  doctrine  whit-h  has  been  suggested,  founded 
upon  what  is  called  moral  insanity.  Every  man,  however  learned  and 
intellectual,  who,  regardless  of  the  laws  of  God  and  man,  is  guilty  of 
murder,  or  other  high  and  disgraceful  crimes,  is  most  emphatically 
morally  insane.  Such  doctrine  would  inevitably  lead  to  the  most  per- 
nicious consequences,  and  it  would  very  soon  come  to  be  a  question  for 
the  jury,  whether  the  enormity  of  the  act  was  not  in  itself  suflicieiil 
evidence  of  moral  insanity,  and  then,  the  more  horrible  the  act,  the 
greater  would  be  the  evidence  of  such  insanity.  On  the  contrary,  in 
my  judgment,  the  true  question  to  be  put  to  the  jury  is,  whether  the 
prisoner  was  insane  at  the  time  of  committing  the  act ;  and  in  answer 
to  that  question,  there  is  little  danger  of  a  jurN^'s  giving  a  negative 
answer,  and  convicting  a  prisoner,  who  is  proved  to  be  insane  on  the 
subject-matter  relating  to  or  connected  Avith  the  criminal  act,  or  pi'ov((l 
to  be  so  far  and  so  generally  deranged  as  to  render  it  difficult,  or  almost 
impossible  to  discriminate  between  his  sane  or  his  insane  acts. 

I  mean  no  disrespect  to  the  learned  writers  on  medical  jurisprudence 
or  other  distinguished  men  of  the  medical  pi-ofession.  On  the  contrary. 
I  consider  the  administrators  of  criminal  law  greatly  indebted  to  them 
for  the  results  of  their  valuable  experience,  and  professional  discussions 
on  the  subject  of  insanity ;  and  I  believe  those  judges  who  carefully 
study  the  medical  writers  and  i)ay  the  most  respectful,  but  discriminat- 
ing attention  to  their  scientific  researches  on  the  subject,  will  seldom, 
if  ever,  submit  a  case  to  a  jury  in  such  a  way  as  to  hazard  the  convic- 
tion of  a  deranged  man. 

These  remarks,  and  all  I  have  said,  calculated  to  caution  you  against 
confounding  mere  outbreaks  of  passion,  or  mere  acts  of  depravity,  with 
that  sort  of  insanity  which  excuses  from  punisliment,  you  are  n(  t  to 
regard  as  the  expression  or  an  opinion  on  the  part  of  the  court,  that  the 
act  of  homicide  committed  by  the  prisoner,  was  an  act  of  criminal 
passion  or  revenge,  or  that  it  was  an  act  of  insanity.  This  is  the  very 
question  you  are  to  decide,  and  which  it  is  my  desire  to  submit  to  your 
decision  uninfluenced  by  any  opinion  of  mine. 

The  evidence  of  insanity  upon  which  a  jury  should  rest,  will  vary 
with  every  case;  but  generally  speaking,  the  evidence  of  those  who  saw 
the  person  accused  every  day  immediately  previous  to  the  commission 
of  the  act,  who  were  intimate  with  him,  talked  with  him,  ate  and  drank 
with  him.  and  who  testify  to  hisacts,  his  words,  his  conversation,  hislooks, 


I) 


h! 


OPINIONS   OF    WITNESSES. 


343 


Absence  of  Motive  for  Criiin'. 


his  whole  deportment,  is  that  on  which  a  Jury  ought  to  place  the  greatest 
reliance,  the  evidence  of  competent  medical  men,  who  have  had  frequent 
()[)portunities  of  observing  him  about  the  time  in  question,  especially  if 
llicy  have  been  in  attendance  upon,  or  have  visited  him  with  a  view  to 
probe  the  state  of  his  mind,  is  entitled  to  very  great  consideration.  It 
lias  always  been  held  that  medical  men  may  give  their  opinions  in  evi- 
dence. These  are  alwa^'s  valuable,  and  more  or  less  so  according  to 
their  opportunities  of  observing  the  accused  at,  or  about  the  time  of  the 
!iet  complained  of.  But  if  they  have  not  been  in  the  hal)it  of  seeing 
him,  if  they  were  not  familiar  with  his  habits  and  symptoms,  at  or  about 
tlie  time  in  question,  their  opinions  in  relation  to  the  particular  indi- 
vidual, are  of  no  more  weight,  and  in  my  judgment,  of  not  so  much 
weight,  as  those  of  unprofessional  persons  of  good  sense,  who  have  had 
ample  opportunities  for  observation. 

One  strong  circumstance  generally  attending  the  commission  of  acts 
of  violence  by  persons  who  are  really  insane  is,  the  absence  of  any 
iipparent  motive.  It  is  not  unfrequently  their  best  friends,  those  who 
iu-e  most  kind  and  attentive  to  them,  who  are  the  victims  of  their  un- 
conscious and  destructive  violence.  I  do  not  say  that  this  absence  of 
apparent  motive  invariably  exists  in  the  cases  of  homicide  and  other 
atrocious  acts  committed  by  insane  persons ;  but  I  say  that  it  is  gener- 
ally the  case.  Hence,  if  we  witness  the  perpetration  of  such  an  act 
without  any  apparent  motive  or  object,  but  against  every  motive 
which  would  appear  to  be  .  naturally  influential  with  the  person 
committing  it,  we  are  s,t  once  awake  to  the  inquiry,  whether  he  was  in 
ills  sound  mind,  and  if  we  can  lay  hold  of  any  sufficient  evidence  that 
lie  was  not  so,  this  absence  of  apparent  motive  confirms  us  in  the  belief 
that  he  was  insane. 

But  where  the  evidence  of  the  case  shows  that  there  were  strong 
motives  of  anger,  jealousy,  or  hate  to  actuate  the  accused,  such  motives 
as  might  naturally  induce  a  man  of  depraved  and  wicked  heart,  and 
violent  and  ungovernable  passions,  to  perpetrate  the  crime  of  which  he 
stands  accused,  we  cease  to  look  for  other  causes  of  the  deed  committed, 
and  naturally  attribute  it  to  those  which  so  glaringly  present  themselves. 
We,  at  once,  unless  the  evidence  of  his  being  actually  insane  is  forced 
upon  us,  attribute  it  to  his  own  wicked  nature  and  the  unholy  indul- 
gence of  his  ungovernable  passions.  This  process  of  our  minds  is 
natural,  and  is  founded  in  the  truth  and  reason  of  things.  You  ought 
to  inquire,  therefore,  gentlemen,  whether  in  the  case  before  you,  the 
prisoner  at  the  bar  committed  the  act  charged  .upon  him  as  a  crime,  in 
the  ubbeuce  of  any  such  motive  as  would  naturally  iullueuce  the  mind 


344 


THE    BUKDEN   or    TROOF   OF    INSANITY. 


State  V.  Spencer. 


of  a  (lepnivod  man  to  the  commission  of  acts  of  violence.  If  no  siieli 
motive  existed,  that  circumstance  will  add  j^roat  strength  to  the  proof 
of  his  insanity;  but  if,  on  the  other  hand  he  was  assailed  by  stroni: 
motives  of  revenge,  or  otlier  passions,  you  have  a  right  to  infer  that  it 
was  under  the  influence  of  these  motives  that  he  committed  the  (1ee<l. 
and  not  luider  the  influence  of  insanity,  unless  the  proof  of  actual  in- 
sanity at  the  time  is  clear  and  convincing  to  j-our  minds. 

I  will  take  notice  of  one  more  consideration  which  it  is  proper  for  the 
jury  to  regard  in  making  up  their  verdict  in  this  case.  It  is  this:  It  is 
undoubted  law  that  when  a  man  is  proved  to  have  been  once  insane, 
the  presumption  is  that  he  continues  so  until  the  contrary  is  shown. 
If  I  have  left  a  relative  in  England  who  Avas  then  aftiicted  with  insanity, 
and  I  have  not  since  heard  from  him,  the  presumption  is  that  he  is  still 
insane.  True,  he  may  have  recovered  ;  and  since  the  humane  methods 
with  which  the  disease  is  now  treated  have  become  general  in  civil- 
ized countries,  the  probability  of  recovery  from  mental  'erangement  is 
greatly  increased.  Still,  the  presumption  of  law  rem  lins  the  same. 
The  presumption  is  that  my  aftiicted  relative  is  in  the  same  condition 
he  was  when  I  left  him.  But  if  I  learn  that  he  has  recovered,  or  that 
he  has  sane  intervals,  and  is  sufficiently  restored  to  attend  to  his 
business,  then  the  aspect  of  things  is  changed  ;  there  is  no  longer  any 
presumption  that  he  is  still  insane.  So,  in  the  case  in  hand,  if  the 
prisoner  has  proven  that  he  was  once  insane,  the  ])resumption  arises 
that  he  is  still  insane  at  this  moment,  luiless  the  contrary  be  shown. 
The  evidence  on  this  subject  is  all  before  you,  gentlemen,  and  the 
prisoner  is  hims(?lf  before  you,  and  if  you  have  no  evidence  of  lucid 
Intervals  since  the  time  of  the  insanity  proved,  you  must,  of  course, 
find  him  still  insane,  and  insane  at  the  time  of  committing  the  act  in 
question.  But  if  the  prosecution  has  succeeded  in  showing  that  sinci' 
the  period  of  insanity  (if  any)  proved  by  the  prisoner  hi)  '■  s  '  ccn 
himself  conscious  of  right  and  Avrong,  and  every  way  a  '  -..si bit' 
man,  the  presumption  of  insanity  is  done  away. 

This,  gentlemen,  is  all  that  1  deem  it  my  duty  to  say  to  ^ ,  a  on  the 
question  of  insanity  as  a  defence.  In  doing  this  it  has  been  my  object 
and  design  to  give  you,  in  the  abstract  and  without  reference  to  the 
evidence  and  the  circumstances  of  this  particular  case,  the  law  upon 
the  subject  of  insanity  when  set  up  as  a  defence,  both  as  respects  tiic 
extent  and  character  of  that  sort  or  degree  of  insanit}'  which  is  required 
to  constitute  a  defence,  and  of  the  evidence  by  which  it  may  be  estab- 
lished. And  I  hope  I  may  not  be  understood  by  j'^ou  as  having,  by 
any  thing  I  have  said,  in  the  slightest  degiee  indicated  any  opinion  that 


WHEN'    IX8AMTV    MAV    HK    IN'rKIJIiED. 


345 


I)i-cl:iratioiis  of  I)cce;isi'd  Irivk'vaiit. 


tlu'  prisoner  has  failed  to  eslablisli  siieh  insanitv  ut  the  time  of  oom- 
mitting  the  homicide,  as  ouglit,  upon  the  soundi-st  rules  of  hiw  and  in 
accordance  with  the  dictates  of  our  common  humanity,  to  exempt  iiim 
from  the  penalty  due  to  crime,  when  committed  by  rational  and  account- 
able beings ;  nor,  on  the  other  hand,  is  it  my  intention  to  express  any 
oi)inion  that  the  defence  has  been  sustained.  The  qut'stion  of  the 
prisoner's  sanity  or  insanity  at  the  time  of  committing  the  act  charged, 
is  appropriately  and  exclusively  within  the  prcnince  of  the  jury.  It 
will  be  sufHcient  for  the  court  to  call  the  attention  of  the  jury  to  such 
evidence  on  the  part  of  the  prisoner  as  lays  any  foundation  for  a  belief 
that  he  was  insane  at  the  time  of  the  homicide.  I  have  said  that 
insanity  is  not  to  be  inferred,  but  to  be  proved.  By  this,  however,  I 
did  not  mean  that  such  acts  and  conduct  as  established  insanity  can 
only  be  proved  by  witnesses  who  saw  him  at  or  about  the  time  of  the 
commission  of  the  fatal  deed.  On  the  contrary,  the  jury  may  be  con- 
vinced that  he  was  then  insane  and  unconscious  of  doing  wrong,  from 
evidence  of  prior  insanity,  or  s'  ong  symptoms  of  insanity,  or  of  an 
evident  predisi)osition  to  it ;  or  from  proof  of  a  peculiar  tciiiperament 
of  mind,  and  of  nervous  excitability  in  the  early  ami  continued  history 
of  his  life,  or  in  his  former  partial  aberrations  of  mind  upon  certain 
topics,  such  as  temperance,  politics,  or  mesmerism ;  if  they  are  sat- 
isfied that  the  unhappy  circumstances  in  which  he  was  placed  in  regard 
to  his  wife,  the  grounds  he  had  for  ])elieving  her  unfaithful,  and  tlu-. 
cruel  treatment  he  received,  or  believed  he  received,  from  her  mother 
and  brother,  and  the  attempt  to  drive  him  from  her,  that  Richardson 
or  some  one  else  might  occupy  his  place,  had  produced  such  an  effect 
on  his  already  shattered  intellect  as  to  dethrone  the  little  remains  of 
reason  he  possessed,  and  leave  him  unconscious  of  the  wickedness 
of  the  act  he  was  perpetrating.  And  this  will  present  to  you  the  true 
question  in  the  case,  which,  in  the  language  of  Lord  Chief  Justice 
Dexm.vn,  in  the  case  of  Oxford,^  is,  "  whether  the  evidence  given  pi-oves 
a  disease  in  the  mind,  — as  of  a  person  quite  incapable  of  distinguishing 
right  from  wrong ;  whether  the  prisoner  was  laljoring  under  that  species 
of  insanity  which  satisfies  you  that  he  was  quite  unaware  of  the  nature, 
character,  and  consequences  of  the  act  he  was  committing;  or,  in  other 
words,  whether  he  was  under  the  influence  of  a  diseased  mind,  and  was 
really  unconscious,  at  the  time  he  was  committing  the  act,  that  it  was 
a  crime." 

The  expressions  of  the  deceased  are  irrelevant  to  the  issue  in  this 
cause.     If  she  were  a  party  to  the  suit ;  if  she  were  the  accuser  of  this 

1  9C.  &  1'.  .V25. 


34«) 


THE    BURDEN    OF   PROOF   OF    INSANITY. 


State  V.  Marler. 


mail,  and  it  was  a  matter  entirely  between  themselves,  then  her  expres- 
sions—  tlie  W(jrcls  slie  raaj  liave  uttered  —  would  be  admissible  against 
her.  But  on  this  issue,  l)etween  the  State  of  New  Jersey  and  the  pris- 
oner at  the  bar,  wliat  she  had  said  or  admitted  should  have  no  mow 
weight  than  what  any  other  person  may  have  said.  It  has  been  testi- 
fied tliat  she  declared  the  prisoner  insane.  This  is  no  proof  that  lii' 
was  so.  She  may  have  said  this  for  the  sake  of  her  own  character  iiiid 
credit,  or  she  may  have  said  it  from  other  interested  motives.  What 
she  said  is  not  to  be  the  rule  to  guide  us  here.  Nothing  but  the  proof 
of  what  the  fact  was,  can  or  ought  to  have  any  weight  with  the  jury. 

Tlie  evidence  is  before  you,  and  it  is  your  peculiar  province  to  judge 
of  its  weight  and  the  results  to  whicli  it  ler.ds.  If,  in  your  opinion,  it 
is  clearly  proved  tliat  the  piisoner  at  the  bar,  at  the  time  of  the  h(jini- 
cide,  was  unconscious  that  what  he  did  was  wrong  and  that  he  ouglit 
not  to  do  it,  you  must  acquit  him  on  the  ground  of  insanity ;  but  if,  in 
your  opinion,  this  is  not  clearly  established  beyond  a  reasonable  doubt, 
tnen  you  must  lind  him  guilty  of  the  act,  and  proceed  to  investigate 
the  i.atui-e  of  the  homicide. 

In  \iew  of  my  accountability  to  Ilim,  before  whom  judges  must  l)c 
judged,  wiio  knoweth  the  secrets  of  all  hearts,  and  who  cannot  be 
deceivec',  I  have  most  conscientiously  declared  to  you  the  law  upon 
the  subject  of  insanity,  when  set  up  as  an  excuse  for  acts  which,  if 
committed  by  sane  persons,  would  subject  them  to  severe  or  capital 
punishment.  I  doui^t  not,  gentlemen,  the  same  high  and  holy  motives 
will  influence  your  decision ;  the  same  anxious  desire  to  redeem  the 
solemn  pledges  3'ou  luwe  given  will  agitate  your  bosoms  while  you  are 
making  up  your  verdict. 


CI 


BURDEN  OF  PROOF  — KEASONABLE  DOUBT  OF  GUILT 

State  v.  Marler. 

[2  Ala.  43;  36  Am.  Dec.  398.] 
In  the  Supreme  Court  of  Alabama,  January,  1841. 

Insanity,  when  set  up  as  a  defence  to  a  crime,  must  be  shown  by  clear  and  convincing 
l)roof ;  but  if  llio  jury  entertain  a  reasonable  doubt  of  the  prisoner's  sanity,  they  should 
acquit. 

Kkkok  to  the  Circuit  Court  of  Montgomery  County. 
The  prisoner  was  indicted,  tried,  and  found  guilty  of  murder,  his  do- 
fence  being  insanity.     The  presiding  judge  referred  to  the  Supreme 


BURDEX  OF  rUOOF. 


347 


lusanity  Must  be  Clearly  Proved. 


er  ex[)ro,s- 
le  agjiiiisi 
I  the  pris- 
5  no  iiioic 
>een  tcsti- 

f  tll.'lt  lie 

acter  iind 
s.  What 
the  proof 
e  Jury, 
to  judge 
pinion,  it 
the  hoinl- 
he  ought 
but  if,  in 
le  doubt, 
vcstigatc 

must  1)0 
mnot  bi' 
aAV  upon 
ivhieh,  if 
capital 

motives 
eem  tiie 

3'ou  are 


nvincing 
ly  should 


his  ilo- 
ipreme 


Court  for  revision   several  points  arising  out  of  tlie  charges  given  by 
him,  as  novel  and  difflcult. 

(ioldthwaite  for  the  prisoner. 

Lindnai/,  Attorney-General,  contra. 

OUMONI),   J, 

(Omitting  an  immaterial  point.) 

The  remaining  questicjn  is  one  of  much  greater  magnitude,  and  of 
some  difHcuIty.  In  civil  cases,  where  there  is  conflicting  testimony  as 
to  the  existence  of  any  fact  necessary  to  be  established  by  either  party, 
the  jury  are  under  the  necessity  of  weighing  the  evidence,  and  of  de- 
ciding in  favor  of  that  party  on  whose  side  the  evidence  predominates. 
But  in  criminal  cases,  the  humanity  of  our  law  requires  that  the  guilt 
of  the  accused  '  aould  be  fully  proved.  It  is  not  sulticient  that  the 
weight  of  evidence  points  to  his  guilt.  The  jury  must  be  satisfied  be- 
yond a  reasonable  doubt  of  his  guilt,  or  he  must  be  acquitted.  It  is 
not  meant  here  that  the  evidence,  on  which  to  found  a  verdict  in  a  crim- 
inal case,  should  be  so  conclusive  as  to  exclude  the  presumption,  that 
notwithstanding  the  evidence,  the  accused  might  be  innocent,  but  only 
that  it  should  be  of  a  character  to  raise  that  high  degree  of  probability 
on  which  all  human  action  depends. 

In  what  respect,  then,  does  the  question  of  insanity,  when  set  up  as 
an  excuse  for  an  act  which  would  otherwise  be  a  crime,  differ  from  any 
other  fact  which  a  jury  may  be  called  on  to  decide  in  a  criminal  case? 
As  insanity  excuses  the  commission  of  crime,  on  the  ground  that  the 
actor  is  not  an  accountable  being,  it  is  obvious  that  society  has  a  deep 
interest  in  providing  the  means  of  preventing  its  being  assumed  as  a 
cover  for  the  commission  of  crime,  and  as  this  is  more  easily  simulated, 
and  depends  more  on  the  volition  of  the  actor  himself,  than  any  other 
defence,  which  would  excuse  the  comnaission  of  an  act  otherwise  crim- 
inal, the  interest  of  the  public  demands  that  it  should  be  established  b)' 
more  conclusive  proof.  Thus,  in  ArnokVs  Case,^  who  was  indicted  for 
•shooting  at  Lord  Onslow,  and  who  set  up  the  plea  of  insanity,  Tracy, 
justice,  observed  that  the  defence  of  insanity  must  be  clearly  made  out ; 
that  it  is  not  every  idle  and  frantic  humor  of  a  man,  or  something  un- 
iiccountable  in  his  actions,  which  will  show  him  to  be  such  a  madman  as 
to  exempt  him  from  punishment ;  but  that  where  a  man  is  totally  de- 
prived of  his  understanding  and  memory,  and  does  not  know  what  he  is 
•loing,  any  more  than  an  infant,  a  brute,  or  a  wild  beast,  he  will  be 
liruperly  exempted  from  punishment.     In  BelUngham's  Case,  who  was 

'  16  How.  St.  Tr.  G'X). 


;U8 


Tlir,    ItritDKN    OK    I'UOOF    OF    INSANITY. 


Stall-  ('.  Miirlfi- 


indicled  for  tlio  muni'  r  of  Mr.  l't'rciv;il,  Manskiki.k,  C.  J.,  in  roferciicc 
to  the  |)K'!i  of  iii.^aiiity  ri'lii'il  on  for  tin-  pristMU'r,  .said:  "  Tliiit  in  onlti 
to  .•support  such  !i  (It'fi'nrc,  it  ou;j[lit  to  l»o  provi'«l  l»y  the  most  (lisliiul 
and  nn(iiiestion:il)lo  I'videncc  tlmt  tlii'  prisoner  was  incMpahle  of  jnil<;iiij 
lu'VA'cn  ri<?ht  and  wron<?;  tliat,  in  fact,  it  must  bo  [)roved  beyond  nil 
doubt  tiuit,  at  tiic  time  hi*  coininilted  the  act,  he  did  not  consider  tii:il 
murder  was  a  crime  a<jainst  th»'  hiws  of  ( Jod  and  natJirc,  and  tliat  tiicrc 
was  nootlier  proof  of  insanity  wiiich  would  excuse  murder  or  any  other 
crime." 

These  opinions,  wiiich  are  nudoul)ted  hiw,  sliow  the  strinjjjent  nature 
of  the  evidence  by  wliidi  insanity  nnist  bo  proved  to  be  an  excuse  for 
crime  ;  but  wo  do  not  understand  that  even  this  defence  must  bo  estali- 
lished  by  evidence  so  conclusive  in  its  nature  a.-,  to  exchido  every  otiier 
hypotlu'sis.  Tliis  would  bo  rccpiirinu;  somethinjjf  akin  to  inathematiciil 
proof,  of  which  the  subject  is  clearly  not  susceptible  ;  Ijut  that  the  jury 
must  be  fully  satisfied  that  the  evidence  is  made  out  beyond  the  reason- 
able doubt  of  a  well  ordered  mind.  To  test  the  case  at  bar  by  these 
principles,  the  court  was  moved  to  char<ro  the  jury  "that  if  they  enter- 
tained any  reasonable  doubt  as  to  the  sanity  of  the  prisoner,  they  must 
acquit  bim ;  "  which  char<i;o  the  court  refused.  I'pon  the  principles 
here  laid  down  it  was  error  to  refuse  this  cliarge.  If  the  prisoner  w:is 
insane,  ho  was  not  an  accountable  beinjx;  au<l  can  the  public  justice  ot 
the  country  repose  with  safety  upon  a  verdict  foiuid  l)y  a  jnry,  every 
member  of  which  may  have  entertained  a  reasonable  doubt  of  its  pro- 
priety? It  would  have  been  highly  proper  that  the  court,  when  calleil 
on  thus  to  charge,  should  have  explained  to  the  jury  that  this  defenci' 
reciuired  to  be  made  out  by  strong,  clear,  and  convincing  proof,  and 
guided  by  these  considerations,  if  they  still  entertain  a  reasonable  doubt 
of  the  sanit}'  of  the  prisoner,  it  was  their  duty  to  acquit. 

The  charge  which  was  given  by  the  court  does  nf)t  appear  to  be  ol)- 
jcctionable,  but  as  it  is  probable  the  jury  were  mislead  b}'  tlio  refiisal  to 
give  the  charge  asked  for,  the  judgment  must  be  reversed,  the  cause 
remanded,  and  the  prisoner  directed  to  remain  in  custody  to  await  :i 
trial  (le  novo;  unless,  in  the  interim,  he  shall  be  discharged  by  due 
course  of  law. 

CoLLiEH,  C.  J.  I  concur  in  the  reversal  of  the  judgment  of  the  Cir- 
cuit Court,  but  as  I  do  not  entirely  assent  to  the  opinion  of  my  brother 
Okmon'd,  I  deem  it  proper  briefly  to  declare  my  views  upon  the  only 
point  of  difference  between  us.  The  charge  as  prayed  in  regard  to  the 
prisoner's  insanity  should,  in  my  judgment,  have  been  refused.  It 
supposed  that  the  jury  wouUl  l)e  bound  to  acquit,  if  they  entertained  a 


real 
will 

ollt 

istil 

WIIH 

.Icrl 

tlKll 
11 

jiu-' 

to 

ami 

i;ui 

!i  r( 

so 

pris 


IN8ANITY  MUST  UK  I'KOVKI)  IJKYOND  ItKASONAIlLK  DOIMT.       'MO 


Stiite  V.  Hriiiyca. 


II  roferi'iicc 
at  in  order 

»*t  (li.stiiic) 

of  jl|(|<ri||M 

IhmoikI  all 
iHiilcr  tliMl 

tllMt  thflV 

»iiy  otlu>i 

I'lit  nature 
.'xeusi'  for 

1)0  ostnl)- 
lery  other 
liematic.'tl 
t  the  jury 
10  roa.soii- 

hy  these 
loy  entcr- 
hoy  nni.st 
principles 
ioncr  Av;is 
justice  of 
i"y,  every 
'  its  pro- 
u  called 

defence 
oof,  and 
le  doubt 

0  be  ol> 
jfiisal  to 
10  cause 
await  !i 
by  due 

the  Cir- 
brother 
he  only 
i  to  the 
ed.  It 
ained  a 


reasonable  doubt  as  to  the  prisoner's  sanity.  The  law  requires  insanity, 
when  alleged  us  an  excuse  for  the  conimission  of  jin  offence,  to  be  uuule 
nut  by  proof,  us  full  und  satisfuctory  us  is  recpiired  to  establish  tlu^  ex- 
istence of  any  other  fact.  A  reasonal)le  doubt  whether  the  accused 
uassane,  would  not  authorize  his  ac(iuittal  —  there  must  Ih;  a  prepon- 
derance of  proof  to  show  insanity  to  ^"arrant  a  verdict  of  not  guilty  for 
that  cause. 

Hut,  in  my  appreliension,  the  error  consists  in  the  charge;  given  to  the 
jury.  They  are  informed  that  if  tUv.y  entertain  a  reasonabFe  doubt  as 
lo  tlie  prisoner's  insanity,  it  would  be  their  duty  to  regard  him  as  sane, 
and  if  the  facts  estal)lished  a  case  of  murder,  they  should  (ind  him 
-iiilty.  Now,  it  was  entirely  possible  for  the  jury  to  have  entertained 
a  reasonable  doubt  of  his  insanity,  although  the  weight  of  evidence  was 
so  strong  as  to  have  led  their  minds  to  the  conclusion  that  such  was  the 
l)risoner's  condition.  This  charge  then,  must  have  induced  the  jury  to 
t)oIieve  that  the  pioof  of  insanity  should  have  been  conclusive  and  irre- 
sistible. In  this  point  of  view  they  may  have  been  misled,  or  have  re- 
quired proof  too  stringent.  Hence,  I  am  in  favor  of  reversiut'  the 
judgment.  ° 


INSANITY  MUST  BE  PROVED  BEYOND  REASONABLE  DOUBT-INSAN- 
ITY AFTER  VERDICT  AND  BEFORE  SENTENCE  -  OPINIONS  OF 
WITNESSES.  i^'iwi^io    yjn 

State  v.  Brinyea. 

[5  Ala.  241.] 
In  the  Supreme  Court  of  Alabama,  January,  1843. 


Hon.  Henry  W.  Com.iek,  Chief  Justice. 
"     Hkxky  Goi.dtuwaitk, 
"    John  J.  Okmond, 


\  Judges. 


1.  Burden  of  proof- Insanity  must  be  proved  beyond  reasonable  doubt. -The 

(lelence  of  insanity  must  be  proved  beyond  a  reasonable  doubt. 

2.  Insanity  after  verdict  but  before  sentence.- If  after  verdict,  but  before  sentence,  a 

prisoner  becomes  insane,  it  is  good  ground  f..r  staying  the  sentence;  aM<er  wJiere  the 
insanity  is  the  same  as  has  been  passed  on  by  the  jury. 

3.  The  opinions  of  ordinary  witnesses  as  to  a  person's  sanity  are  inadmissible. 

Eruou  to  the  Circuit  Court  of  Montgomery  County. 
This  cause  is  presented  on  questions  reserved  for  the  opinion  of  this 
court,  as  novel  and  difficult. 


350 


THE    ISUUDEN    OF    PHOOF   OF    INSANITY. 


Slati-  I'.  Itriiiycii. 


On  the  trial  tbc  prisoner  ix'lied  on  tlic  defence  of  insanity,  and  intro- 
duced witiu'.s>t'.s  who  U'stilli'd  to  acts*  and  declarations  of  the  prisonci 
tending  to  prove  insanity  ;  whereupon  his  counsel  proposed  to  ask  tlir 
witnesses  for  their  opinions  as  to  the  sanity  or  insanity  of  the  prisoner, 
as  deduced  from  the  acts  or  declarations  testified  to  by  them.  Tin- 
question  was  excluded  by  the  court,  the  witnesses  not  being  of  tlic 
medical  profession. 

The  court  charged  the  jury  that  they  must  believe  the  offence  charged 
in  the  indictment  to  have  been  committed  ;  that  if  they  entertained  !i 
reasonable  doubt  as  to  the  commission  of  the  act,  the  prisoner  was 
entitled  to  the  benefit  of  it ;  but  the  commission  of  the  act  being  proved, 
and  the  prisoner  relying  on  insanity  as  an  excuse,  the  rule  was  reversed. 
In  that  event  the  prisoner  was  bound  to  make  out  by  testimony  l)eyoiul 
all  reasonable  doubt  that  he  was  insane  at  the  time  the  act  was  com- 
mitted, l)y  proof  clear,  strong,  and  convincing;  and  if  ui)on  the  testi- 
mony the  jury  should  entertain  no  reasonable  doubt  of  the  defendant's 
sanity,  they  should  find  him  guilty. 

When  the  i)risoner  was  called  before  the  court  for  sentence,  after  a 
verdict  of  guilty  against  him,  the  counsel  for  the  prisoner  suggested  that 
he  was  at  that  time  of  unsound  mind  and  moved  an  arrest  of  judgment 
on  that  ground.  The  suggestion  was  supported  by  aflfldavits,  conducing 
to  prove  its  truth,  but  the  court  declined  to  consider  the  motion,  and 
reserved  the  questions  as  novel  and  difficult. 

The  Aitorneij-General  for  the  State  ;  Mays,  for  the  prisoner. 

GoLDTiiWAiTE,  J.  — There  is  a  considerable  diversity  of  decision  upon 
the  point  whether  a  witness,  not  being  a  physician,  can  properly  be 
allowed  to  give  his  opinion  in  evidence  when  the  m.atter  to  be  ascer- 
tained is  the  insanity  of  an  individual.  The  cases  on  this  subject  arc 
collected  in  Cowen  and  Hill's  notes  to  Phillips  on  Evidence.* 

Although  the  greater  number  of  these  recognize  the  rule  as  ordinarily 
understood  and  as  declared  by  the  Circuit  Court,  yet  there  are  sonic 
which  seem  to  sustain  the  position  insisted  for  by  the  prisoner's  coun- 
sel. Our  intention  is  not  to  review  them,  as  it  would  lead  us  into 
unnecessary  prolixity,  and  as  the  principle  applicable  to  this  case  can  l>e 
ascertained  without  aid  from  them. 

When  it  is  necessary  to  i)rove  to  a  jury  that  one  is  insane,  this  is 
done  by  showing  a  series  of  actions  or  declarations  which  evince  an 
aberration  of  mind  ;  the  conclusion  of  insanity  is  to  be  drawn  by  the 
jury,  and  must  be   deduced  from  the  actions  or  declarations  of  which 


759,  n  529. 


INHANITV    AFTKIt    VKKDICT. 


3.^1 


Bnrdfii  (if  I'l f. 


ftiid  intro- 
10  prisoiici 
tu  ask  tile 
*  prisoiui, 
ictn.  Tili- 
ng of  tllc 

3e  charged 
•rtaiiu'd  a 
ioner  was 
ig  proved, 
reversed, 
ly  beyond 
was  com- 
the  testi- 
ifendaut's 

i,  after  a 

esterl  that 

udgmeiit 

oiuluciiiij 

ion,  and 


ion  upon 

l^erly  he 

)e  ascei- 

)ject  are 

rdinarily 
e  some 
s  couii- 
us  into 

e  can  be 

this  is 

ince  an 

by  the 

which 


evidence  i.s  jjiveii.  Different  indivlcUuils  somctiines  draw  different  coii- 
iltisions  from  tiie  same  act ;  and  if  tlieir  upinions  were  acbnissiltle  os 
evidence,  it  migiit  often  happen  tiiat  different  opinions  formed  from  tlie 
siuuo  conduct  would  go  to  tlie  jury,  having  no  otlier  temleiicy  than 
tu  embarrass  and  mislead  them.  As  the  concUision  of  the  jury  i>as  to 
lie  formed  from  the  acts  and  declarations  before  them  as  evidence,  it  is 
entirely  immaterial  what  opinions  are  foruied  by  otlurs,  and  for  this 
reason  such  opinions  in  this  case  were  properly  excluded  from  the  jiny. 
It  is  proper  to  reuiark  here  that  we  have  not  entered  into  the  considera- 
tion of  exceptions  to  the  general  rule,  arising  out  of  some  peculiar 
relation  or  connection  of  the  witness  to  the  person  whose  sanity  is 
(inestioned,  becauae  nothing  but  the  general  question  is  non  presented. 

:.'.  If  a  person  after  verdict  and  before  sentence  becomes  insane,  it 
certainly  is  a  good  reason  to  stay  the  sentence,  but  that  is  not  this  case. 
We  do  not  understand  that  any  change  in  the  condition  of  the  prisoner 
was  shown  to  have  been  taken  place  since  the  empanelling  of  the  jury. 
It  was  then  in  effect,  requiring  the  court  to  arrest  or  stay  the  judgment 
for  the  same  reason  which  had  been  unsuccessfully  urged  before  the 
jury  in  defence  of  the  criminal  charge.  We  think  the  Circuit  Court 
properly  refused  to  entertain  the  motion. 

;.}.  The  objection  to  the  charge  cannot  avail  the  prisoner,  as  it  is  in 
strict  accordance  with  Marlefs  Case.^  The  counsel  for  the  prisoner 
aiiriU'S  that  the  charge  was  that  a  different  degree  of  proof  was 
necessary  to  make  out  a  defence  than  was  sulHcicnt  to  produce  a  con- 
viction; but  we  do  not  so  understand  it.  The  court  in  substance 
declares  that  it  was  incumbent  on  the  State  to  make  out  the  prisoner's 
;xiult  beyond  all  reasonable  doubt,  and  if  the  jury  doubted  the  evidence 
as  to  the  commission  of  the  act,  the  prisoner  was  entitled  to  the  benefit 
of  that  doubt ;  but  if  the  act  was  incontestably  i)roved,  and  the  prisoner 
rclit'd  on  insanity  to  excuse  himself,  the  case  was  reversed.  The 
prisoner  then  was  bound  to  make  out  by  testimony  beyond  all  reasonable 
doubt  that  he  was  insane  at  the  time  the  act  was  committed,  by  proof 
strong,  clear  and  convincing;  but  if  upon  testimony  the  jury  should 
entertain  no  reasonable  doubt  of  the  defendant's  sanity,  they  should  find 
him  guilty. 

It  is  true  we  do  not  very  clearly  comprehend  what  was  intended  by 
the  court  when  it  said  the  case  was  reversed,  if  insanity  was  relied  on 
as  a  defence ;  but  whatever  it  was  it  certainly  was  not  intended  to  instruct 
the  jury  that  they  should  convict  the  prisoner  if  they  entertained  doubts 


1  2  Ala.  43. 


352 


THE    BURDEX   OF    PHOOF   OF    INSANITY. 


Boswtll  V.  State. 


of  his  sanity.  Tlic  charge,  it  is  tine,  is  in  tiie  negative,  that  if  the  jury 
iiad  no  reasonable  doubt  of  the  sanity  of  the  prisoner  he  should  be  con- 
victed. This  as  it  seems  to  us  is  precisely  equivalent  to  a  charge  th;it 
if  a  reasonable  doubt  of  his  sanity  was  entertained  the  jury  shouM 
acquit.  If  the  cliarge  was  objectionable  on  account  of  its  obscurity  or 
so  considered,  the  prisoner's  counsel  should  htivc  requested  the  proiicr 
explanation  ;  if  refused  or  not  given  as  asked  for,  that  tendency  to  mis- 
lead would  have  been  made  apparent  and  under  the  decision  in  Marki-'n 
Case,  the  judgmeut  would  have  been  reversed. 

Let  the  judgment  be  ajp'^med. 


BURDEN  OF  PROOF  — INSANE  DELUSION,  WHEN  A  DEFENCE- 
LESSNESS  AND  RESTLESSNESS  — MORAL  INSANITY. 

BoswELL  V,  State. 


■SLEEP- 


[(13  Ala.  307.] 
In  the  Supreme  Court  of  Alabama,  December  Term,  1879. 


Hon.  RonKRT  C.  Bkickell,  Chief  Justice. 
"     Amos  R.  Manmnu, 
'<     Gk 


Mos  R.  Manmnu,   )    .        .  .    X   , 

,,,   „  >  Associate  Judges. 

KOKCiK  W.  SroNK,  ) 


1.  Sleeplessness  and  Nervous  Restlessness  aro  relevant  on  the  question  of  insanity 

vel  noil. 

2.  Insane  Delusion  a  Protection,  When. —  An  insane  delusion  relieves  a  person  from 

responsibility  when  and  only  when  tlie  fact  or  state  of  facts  which  arc  believed  in 
under  the  insane  delusion  would,  if  actually  existing,  liave  justified  the  act. 

3.  Horal  Insanity,  which  consists  of  irresistible  impulse,  co-existing  with  mental  sanity, 

should  not  be  recognised  by  the  law. 

4.  The  Burden  of  Proof  is  on  the  prisoner  to  show  ir.sanity,  and  a  reasonable  doubt  of 

sanity  will  not  autliorize  an  ac<iuittal. 


From  the  Circuit  Court  of  Talladega. 

Tried  before  the  Hon.  John  IIkxueijson. 

The  prisoner  in  tliis  case,  George  Boswell,  was  indicted  for  the  murder 
of  Eliza  Embry,  by  stabbing  her  Avith  a  knife  ;  was  tried  on  issue  joined 
on  the  plea  of  not  guilty ;  found  guilty  of  murder  in  the  first  degree, 
and  sentenced  to  be  hanged.  The  prisoner  was  a  mulatto  man,  whoso 
wife  had  been  dead  five  or  six  years,  leaving  several  children  living  villi 
him,  the  oldest  being  a  boy  about  fifteen  years  old ;  and  Eliza  Embry 


if  the  jiirv 
lid  be  con- 
liarge  thai 
iry  should 
Jscurily  or 
;lie  proper 
icy  to  iiiis- 
n  Marler's 

ijt'-med. 


—  SLEEP- 


79. 


of  insanity 

erson  from 
JClieved  in 

ntal  sanity, 

e  doubt  of 


murdor 
e  joiiiod 

degree. 
1,  whoso 
ing  with 

Embi'v 


B08WELL   V.  STATE. 


853 


Facts  of  the  Case. 


was  a  young  mulatto  woman,  whom  he  had  been  courting,  and  who,  as 
he  claimed,  had  i)roinised  to  marry  him,  but  married  another  man, 
Wesley  Embry  by  name.     The  murder  was  committed  on  the  second  of 
Feoruary,  1878,  about  the  middle  of  the  da}',  on  the  public  square  in 
Tnlledcga,  a  few  minutes  after  the  said  Eliza  and  Wesley  Embrcy  had 
liet'u  married  by  the  probate  judge  in  his  offlci;.     The  circumstances 
iiiuncdiatt'ly  preceding  the  commission  of  the  crime  were  thus  stated  by 
the  probate  judge,  who  was  examined  as  a  witness  for  the  prosecution: 
•On  the  second  of  February,  1878,  between  one  and  two  o'clock,  p. 
M.,  Avhile  I  was  preparing  a  marriage  hcense  for  Wesley  Embry  and 
Kliza  Truss,  the  defendant  came  into  my  office,  and  asked  me,  '  if  a  girl 
could  obtain  a  license  to  marry  another  man  after  having  promised  to 
marry  him?'     I  told  him  '  yes ;  that  she  had  the  right  to  change  her 
mind,'  and  he  then  left  the  room.     After  I  had  married  Wesley  and 
Kliza,  and  Wesley  had  gone  out,  the  defendant  returned  and  sat  down 
close  to  Eliza,  and  hold  some  conversation  with  her,  none  of  which  I 
iiiulorstood.     The  south  door  of  the  room  was  opened  by  some  one  (Mr. 
Ilamill,  I  think),  and  Eliza,  rather  hastily,  moved  her  chair  from  near 
tlio  defendant  to  a  point  near  me,  and  sat  down.     About  this  time  Wes- 
ley returned  to  the  room,  and  proposed  to  Eliza  that  they  go  home. 
She  immediately  got  up  and  gathered  up  some  bundles  and  wraps,  and 
the  three  left  the  room,  Wesley  going  in  front,  P^liza  next,  and  oue  de- 
fendant last.     In  a  very  short  time  I  heard  screams  in  the  court-yard, 
and,  looking  out  of  the  window,  saw  the  defendant  have  Eliza  pushed 
l)ack  against  the  bell-tower,  with  one  arm  around  her,  and  striking  her 
with  the  other ;  and  I  s.. .,  Eliza  get  loose  from  him  and  run  away.     I 
ran  to  the  west  door  of  the  room,  and  just  after  I  stepped  out  of  it,  the 
defendant  walked  up  to  me  and  said :  "  Judge,  I  done  it.     She  promised' 
to  marry  me,  and  has  gone  back  on  me."     (Or,  as  afterwards  stated  by 
the  witness:   "  Judge,  I  done  it,  and  if  I  have  got  to  hang,  let  me  hang, 
Shi'  promise  I  to  marry  me,  and  has  married  another  fellow ;  she  has  gone 
hiviTc  on  me."')     The  deceased  ran  several  steps,  and  fell,  and  died  in  a 
fi'w  minutes,  her  throat  being  cut,  and  eight  other  wounds  with  a  knife 
being  inflicted  on  her  person.' 

Another  witness  for  the  prosecution  who  saw  the  slabbing,  testified 
tlnit  he  was  standing  on  the  stops  of  the  court-house  when  the  parties 
came  out  of  the  probate  judge's  office,  and  thus  proceeded:  "  I  heard 
(icorge  (the  prisoner)  say,  '  Wesley,  you  go  on  ;  I've  got  something  to 
toll  Liza.'  Wesley  went  on,  cowards  the  fence  beyond  the  bell-tower; 
ami  George  then  said,  'Liza,  you've  gone  back  on  me.'  She  said, 
'(ieorge,  1  didn't  love  you  well  enough  to  marry  you.'  By  this  time 
23 


354 


THE    BUKDEN    OF   PlvOOF   OF    INSANITY. 


Boswell  V.  State. 


thcv  were  opposite  the  bell-tower,  and  Wesley  whs  outside  of  the  fenco, 
at  his  biig;;^y.  George  seized  EUza,  and  stabbed  her  three  or  four 
times.  81ie  screamed  and  jerked  awny  from  him,  and  ran  towards  the 
east  side  of  the  square  ;  and  he  walked  back  towards  the  west  door  of 
the  court-house  and  gave  himself  up  to  Ju<lge  Thornton.  Thestablnug 
was  done  in  plain  view  of  a  large  number  of  people.  George  was  not 
excited,  and  did  not  look  like  he  had  been  drinking.  He  did  not  try 
to  get  awi»y,  but  went  quietly  to  Judge  Tiiornton,  and  gave  himself  up." 
Anoiher  witness  for  the  prosecution  testified,  that  about  one  o'clock  in 
the  afternoon  of  that  day,  the  defendant  came  into  his  store,  where 
guns,  pistols,  and  knives  were  kept  for  sale,  and  bought  a  knife  with  two 
blades,  the  larger  one  being  from  three  to  three  and  a  half  inches  long. 
"■  saying  that  he  wanted  a  keen,  sharp  knife  that  would  cut  leather." 
The  mother  of  the  deceased  testilicd,  among  other  things,  that  the  pris- 
oner came  to  her  house  one  night,  in  December  preceding  the  killing, 
and  she  heard  him  ask  Eliza  to  marry  him ;  and  that,  on  her  refus:il. 
she  lieard  him  say:  "  My  God,  woman,  where  is  your  heart?  If  you 
marry  anj'bod}'' but  me,  I'll  cut  your  throat,  and  cut  my  own  throat. 
and  send  my  soul  to  hell."  Another  witness  for  the  prosecution  testi- 
fied that  he  met  tlie  defendant  one  morning  in  December,  coming  from 
the  direction  of  the  house  where  the  deceased  was  living  Avith  her  father 
and  mother ;  that  the  defendant  stopped  him,  and,  during  their  conver- 
sation, said:  "  I  am  afraid  they  are  going  to  pull  back  on  me  down 
there;  and  if  they  do,  it  will  break  my  heart,  and  I  will  kill."  Tho 
sheriff  of  the  county  who  was  introduced  as  a  witness  for  the  defence, 
testified  that  when  he  arrested  the  defendant,  immediately  after  tho 
killing,  he  took  from  him  a  pistol  with  five  barrels,  all  loaded,  a  knifo 
•with  two  blades,  the  larger  one  being  bloody  and  slightly  bent,  sonio 
papers  and  money,  and  two  pint  bottles  of  whiskey,  one  of  which  w;i8 
full  and  the  other  about  one-third  full. 

Insanity  was  set  up  as  a  defence.  Several  witnesses  testified  to  the 
intimate  relations  which  existed  between  the  deceased  and  the  prisoner, 
for  some  time  previous  to  the  killing,  the  messages  which  were  sent  W- 
tween  them,  the  presents  which  he  had  given  to  her,  and  tiie  preparations 
he  had  made,  and  was  making  for  his  approaching  marriage  wifh  her, 
which,  as  he  said,  was  to  take  place  in  a  short  time.  Several  exceptions 
were  reserved  by  the  defendant  to  the  rulings  of  the  court  in  excludiiiii 
portions  of  this  evidence,  but,  as  the  case  is  here  presented,  they  re- 
quire no  particular  notice.  Charley  Boswell  was  introduced  as  a  wit- 
ness by  the  defendant  and  testified  as  follows:  "  I  am  a  son  of  tlic 
defendant.     INFy  mother  has  btcn  dcnd  five  or  six  years.     I  have  a  sister 


I 


and  1 

last  I 

Jatnl 

my 

raosi 

hua 

moss 


BOSWKLL   V.  STATE. 


3')') 


Evidence  in  the  Case. 


the  fence, 
je  or  four 
)wards  the 
ist  door  of 
iestal)l)iiiif 
ge  was  not 
d  not  try 
nself  u\>." 
o'clock  ill 
ore,  where 
e  with  two 
ches  long. 

leather. ' ' 
it  the  jiris- 
l»e  killing. 
jr  refusal. 
?  If  you 
vn  throat, 
ition  testi- 
iiing  from 
her  fatlu  r 
ir  convei- 
me  down 
m."     The 

defence, 
after  the 
d,  a  knife 
ent,  some 
^hich  was 

ed  to  the 
)risoi:er, 
sent  be- 
iaration> 
virh  her, 
:('epti()ns 
sxcludinL^ 
tlicy  rc- 
as  a  Mil- 
n  of  tiie 
a  sister 


and  two  brothers.  I  am  the  oldest  and  am  fifteen  years  old.  We  lived 
last  year  on  Dr.  McClellan's  place.  During  last  January  we  lived  on 
James  Wood's  place.  1  knew  Eliza  Truss,  and  have  often  seen  her  and 
mv  father  togetlier,  and  have  carried  messages  between  thcni.  One 
message  was,  Edie  Collins  told  mo  to  tell  my  father  that  Eliza  wanted 
him  to  meet  her  at  Edie's  on  last  Christmas  night.  I  delivered  that 
message,  and  it  was  the  last  one.  My  father  was  away  from  home  a 
good  many  nights  last  January.  My  father  and  we  childi-en  lived  in  a 
house  by  ourselves  on  Mr.  Wood's  place.  The  defendant  offered  to 
prove  by  this  witness  that  the  defendant  slept  very  little  last  January, 
(luring  the  nights  he  was  at  home ;  that  he  was  restless  at  night,  and 
spent  much  time  in  walking  the  floor,  and  com})lained  of  l)eing  unable 
to  sleep ;  also,  that  he  had  heard  defendant  say  he  was  engaged  to 
marry  Eliza  Truss,  and  was  going  to  bring  her  home  soon,  for  a  new 
raotlier  for  him;  also,  that  defendant  brought  home  provisions  and 
articles  of  household  furniture,  saying  that  he  was  going  to  marry  Eliza 
Truss,  and  was  fixing  to  go  to  housekeeping."  The  State  objected  to 
this  testimony,  as  it  was  offered,  and  the  court  sustained  each  objec- 
tion ;  and  the  defendant  separately  excepted.  It  was  proved  that  the 
defendant's  character  was  that  of  a  quiet  and  peaceable  man,  but  some 
of  the  witnesses  said  that  ho  was  nervous  and  excitable,  though  they  had 
never  known  him  to  bo  engaged  in  any  personal  diflBculty.  One  absent 
witness  for  the  defendant,  a  written  statement  of  whose  testimony  was 
admitted,  detailed  an  occurrence  which  took  place  about  ten  years  be- 
fore tlie  killing,  and  during  the  life  of  the  defendant's  wife,  when  the 
defendant  atterajjted  to  kill  him  on  finding  him  at  his  (defendant's) 
house  eating  supper  with  his  wife ;  but  begged  his  pardon  the  next  time 
lie  saw  him,  and  said  that  he  was  not  in  his  right  mind  at  the  time. 
Another  absent  witness,  whose  testimony  was  admitted  in  the  same  way, 
saw  the  defendant  with  Eliza  and  Wesley  Eml)rv  on  the  morning  the 
killing  occurred,  while  they  were  on  their  way  to  town,  the  defendant 
walking,  and  the  others  riding  in  a  buggy ;  saw  the  defendant  help  Wes- 
ley to  fix  one  of  the  shafts  of  the  buggy,  and  saw  him  talking  and 
laughing  with  Eliza  and  Wesley;  and  she  said  that  "he  seemed  in  a 
good  humor,  and  his  manner  was  quiet  and  as  usual."  Numerous  ex- 
eei)tions,  over  fifty  in  all,  were  reserved  by  the  defendant  to  the  ridings 
of  the  court  in  excluding  evidence  ;  but  a  statement  of  these  matters  is 
not  material  to  an  understanding  of  the  points  decided  bj'  this  court. 
The  bill  of  exceptions  is  very  long,  and  pui'ports  to  set  out  all  the  evi- 
dence adduced. 
The  court  charged  the  jury  in  writing,  and  several  exceptions  were 


356 


THE   BURDEN   OF   PROOF   OF   INSANITY. 


Boswell  V.  State. 


reserved  by  the  defendant  to  different  portions  of  tlie  charge ;  the  parts 
excepted  to  being  inclosed  in  brackets,  as  follows :  — 

"The  law  presumes  that  the  defendant  is  innocent,  and  the  State 
must  prove  to  the  jury  that  he  is  guilty  beyond  a  reasonable  doubt,  as 
charged,  before  3'ou  can  so  find  him.  Murder  is  the  felonious  taking  of 
human  life,  with  malice  aforethought.  Malice  is  such  a  depraved  and 
wicked  condition  of  mind,  as  shows  a  total  disregard  of  social  duty,  and 
a  heart  or  will  bent  wholly  en  evil.  Malice  may  be  express  or  implied. 
Threats  to  take  life,  without  any  provocation  or  without  reasonahk- 
provocation.  Malice  may  be  implied  or  inferred  from  the  deliberate 
perpetration  and  use  of  deadly  weapons  in  taking  human  life.  If  tlie 
killing  was  intentionally  done  by  the  defendant,  and  without  reasonable 
provocation,  justification  or  excuse,  the  law  conclusively  presumes  tliat 
it  was  done  with  malice  aforethought.  [Passion,  without  a  reasonable 
provocation  which  causes  one  person  to  take  the  life  of  another,  is  ma- 
lice.] [It  is,  therefore,  not  a  question  proper  for  your  consideration, 
whether  the  defendant  was  impelled  by  passion  to  take  the  life  of  Eliza 
Embry  (if  he,  in  fact,  killed  her),  unless  the  circumstances  and  causes 
that  moved  him  to  take  life  were  such  as  to  have  excited  the  passion 
and  provoked  a  reasonable  man  to  such  an  extent  as  to  dethrone  rea- 
son, and  excite  passion  be3'ond  control.]  [All  persons  are  alike  bound 
to  control  their  passions,  and  the  law,  in  such  cases,  makes  no  moie 
allowance  for  the  passions  and  temper  of  one  man  than  for  the  passions 
and  temper  of  others ;  and  passions  not  founded  on  reasonable  provo- 
cation, will  not  reduce  a  killing  from  a  higher  to  a  lower  degree  of 
homicide.] 

"If  the  defendant,  in  this  county,  and  before  the  finding  of  the 
indictment  in  this  case,  wilfully,  maliciously,  deliberately,  and  witli 
premeditation  killed  Eliza  Embry,  by  stabbing  her  with  a  knife,  then  he  is 
guilty  of  murder  in  the  first  degree.  To  constitute  murder  in  the  first 
degree,  it  is  not  necessary  that  the  wilful,  malicious,  deliberate,  and 
premeditated  purpose  to  take  life  should  have  existed  with  the  defend- 
ant any  particular  lengtu  of  time  before  the  killing.  If  the  malice  ex- 
isted at  and  before  the  killing,  though  but  for  an  instant  of  time,  it  was 
malice  aforethought ;  and  if  the  defendant  distinctly  formed  in  his  mind 
tiie  purpose  to  take  the  life  of  Eliza  Embry,  and  thought  over  the  mat- 
ter, and  prepared  for  it  before  the  killing,  and  killed  the  deceased  in 
accordance  with  this  formed  purpose  or  design,  it  would  be  a  wilful, 
malicious,  deliberate,  and  premeditated  killing,  and,  consequent^',  mur- 
der in  the  first  degree.  [If  the  defendant  killed  the  deceased,  because 
she  refused  to  marrv  him  and  married  another  man,  even  though  sIk' 


e ;  the  parts 

d  the  State 
»le  doubt,  as 
us  taking  of 
ipraved  and 
al  duty,  and 

or  implied. 

reasonahlc 
e  deliberate 
ife.  If  the 
;  reasonable 
Bsumes  that 
I.  reasonable 
ther,  is  raa- 
isidcration, 
ife  of  Eliza 
and  causes 
the  passion 
throne  rca- 
ilike  bound 
s  no  moie 
le  passions 
ible  provo- 
r  degree  of 

ing  of  the 

and  with 

,  then  he  is 

n  the  iirst 

irate,   and 

le  defend- 

nalico  vx- 

no,  it  was 

1  his  mind 

r  the  mat- 

ceased  in 

!  a  wilful, 

iit'v,  niur- 

bocausc 

iou<;h  she 


INSTRUCTIONS   AS   TO   INSANITY. 


357 


Ami  Drunkenness  as  a  Defenci-. 


may  have  promised  to  marry  him  before  she  married  Wesley  Embry, 
this  would  not  be  such  provocation  as  would  reduce  the  killing  from 
murder  in  the  first  degree  to  murder  in  the  second  degree,  if,  independ- 
ent of  the  fact  of  her  promise  to  marry  the  defendant,  you  find  all  the 
elements  of  murder  in  the  first  degree,  as  above  described,  to  exist  in 
this  case.]  If  the  defendant,  in  this  county,  and  before  the  finding  of 
this  indictment,  wilfully,  and  with  malice  aforethcnight,  but  without 
either  deliberation  or  premeditation,  killed  Eliza  Embry  by  stabbing 
her  with  a  knife,  then  he  is  guilty  of  murder  in  the  second  degree. 

[' '  When  the  plea  of  insanity  is  interposed,  to  protect  one  from  the  legal 
consequences  of  an  act  which  amounts  to  a  crime,  to  render  the  defence 
available,  the  evidence  must  be  such  as  to  convince  the  minds  of  the 
jury  that,  at  the  time  the  act  was  done,  the  accused  was  not  conscious 
that,  in  doing  the  particular  act,  he  was  committing  a  crime  against  the 
laws  of  God  and  his  countr_y .  [If  he  knew  right  from  wrong,  and  knew 
that  he  was  violating  the  law,  he  is  then  guilty ;  for  it  is  the  conscious 
knowledge,  connected  with  the  act,  that  constitutes  the  crime.]  [If, 
therefore,  the  accused  insists  that  he  was  insane,  he  must  adduce  proof 
that  will  satisfy  the  jury  that  the  act  was  not  connected  with  the  knowl- 
edge of  its  criminality ;  and  this  proof  should  be  clear  and  satisfac- 
tory.]    *     *     *  ^ 

The  defendant  excepted  to  this  entire  charge,  and  also  to  each  part 
separately  which  is  included  in  brackets;  and  he  then  requested  the 
court  to  give  the  following  charges,  which  were  in  writing :  — 

"  1.  Drunkenness  may  produce  a  state  of  mind  which  would  render  a 
person  incapable  of  forming  or  entertaining  the  design  or  intention  to 
take  life ;  and  if  the  jury  find,  from  the  evidence,  that  the  defendant 
was  in  such  a  state  of  mind  fi-om  drunkenness,  at  the  time  of  the  kill- 
ing, then  they  cannot  find  him  guilty  of  murder. 

"  2.  Before  the  defendant  can  bo  convicted  of  murder,  the  jury  must 
l)c  satisfied  by  the  evidence,  beyond  all  reasonable  doubt,  that  he  in- 
tended to  take  life ;  and  if  they  believe  from  the  evidence  that,  at  the 
time  of  the  killing,  he  \ras  too  much  intoxicated  to  have  entertained  any 
sueh  intention,  then  they  cannot  find  him  guilty  of  murder. 

"  3.  If,  from  any  cause  shown  by  the  evidence  to  the  satisfaction  of 
the  jiuy,  the  condition  or  state  of  the  defendant's  mind,  at  the  time  of 
the  killing,  was  such  as  to  render  him  incapable  of  forming  and  enter- 
taining the  design  to  take  life,  then  the  jury  cannot  find  him  guilty  of 
murder. 

"  4.  Moral  insanity  is  recognized  by  the  law ;  and  if  the  jury  believe 


358 


THE    BURDEN    OF   PROOF   OF    INSANITY. 


Boswell  V.  State. 


from  the  evidence,  that  the  defendant  wiis  morally  insane  when  he 
stahhc'd  Eliza  Enibry,  then  he  is  not  guilty. 

"  5.  If  the  jury  believe  from  the  evidence  that  defendant  knew  rij^lit 
fi'oni  wrong  wlien  he  stabbed  Eliza  Embry,  they  must  further  lind  tliiU 
he  had  the  power  to  refrain  from  tiie  wrong,  or  they  must  acquit  him. 

"  G.  A  man  morally  insane,  acting  from  an  irresistible  and  uncon- 
trollable impulse,  is  not  responsible  for  that  act ;  and  if  the  defendant 
was  in  that  condition,  and  was  so  acting  at  the  time  of  the  killing,  he  must 
be  acquitted. 

"7.  If  at  the  time  of  the  killing  the  defendant's  intellectual  power 
was  for  the  time  overwhelmed  by  violent  mental  disease,  he  must  be  ac- 
quitted. 

'•8.  If  b}' the  overwhelming  violence  of  sudden  mental  disorder,  the 
defendant's  intellectual  power  was  obliterated,  at  the  time  of  the  killing, 
the  jury  must  acquit  him. 

"  !>.  If  by  the  overwhelming  violence  of  sudden  mental  disorder,  no 
matter  what  may  have  caused  such  disorder,  the  defendant's  intellectual 
power  was  obliterated  at  the  time  of  the  killing,  he  must  be  acquitted. 

"  10.  Did  the  defendant,  in  committing  the  homicide,  act  from  an 
irresistible  and  uncontrollable  impulse?  If  so  the  act  was  not  that  of  a 
voluntary  agent,  but  the  involuntary  act  of  his  body,  without  the  con- 
cui'rence  of  a  mind  directing  it ;  and  he  must  therefore  be  acquitted. 

"11.  If  the  jury  have  a  doubt  of  the  sanity  of  the  defendant  at  the 
time  of  the  killing,,  they  cannot  find  him  guilty  of  murder  in  the  first 
degree,  and  sentence  him  to  be  hung. 

"12.  If  the  jury  have  a  reasonable  doubt  as  to  the  sanity  of  the 
defendant  at  the  time  he  killed  Eliza  Embry,  they  cannot  find  him  guilty 
of  murder  in  the  first  degree,  and  sentence  him  to  be  hung. 

"  13.  If  the  jury  believe  from  the  evidence,  that  the  defendant  loved 
Eliza  Embry,  and  that  she  had  promised  to  marry  him,  but  had  been 
married  to  another  man  a  few  moments  before  the  defendant  killed 
her,  they  can  look  to  these  facts  in  determining  the  motive  with 
which  the  deed  was  done,  and  in  determining  what,  if  any,  is  the  degree 
of  the  defendant's  guilt." 

The  court  refused  each  of  these  charges  as  asked  and  the  defendant 
excepted  to  their  refusal. 

Geo.  W.  P'lrsons,  for  the  prisoner;  //.  C.  Tomj)kins^  Attorney- 
General,  for  the  State. 

Stone,  J.  —  It  was  proposed  to  prove  in  this  case  by  Charley  Boswell, 
a  witness  for  defendant,  that  during  the  month  immediately  preceding 
the  homicide,  defendant  "  slept  very  little  during  the  nights  he  was  at 


le  when  lie 

knew  rijrlit 
er  lind  that 
•quit  him. 
and  uncon- 
e  defendant 
ng,  he  must 

!tnal  power 
fiiust  be  iw- 

isorder,  tlie 
the  killiuij:, 

isorder,  no 
intellectual 

acquitted, 
ct  from  an 
)t  that  of  a 
lit  the  eon- 

uitted. 

ant  at  the 

n  the  first 

ity  of   the 
lim  guilty 

ant  loved 

had  been 

mt  killed 

)tive  with 

he  degree 

lefendant 

Ittorney- 

Boswcll, 
irecedinjr 

le  was  at 


EVIDENCE    OF    SLEEPLESSNESS    IlELKVANT. 

Rejection  of  Kvidcuce  Must  be  Specially  Except,  d  i 


:)'}{) 


home ;  that  he  was  restless  at  night,  and  spent  much  time  in  walking 
the  floor,  and  complained  of  being  unable  to  sleep."  The  plea  of  insan- 
ity was  relied  on  in  defence  ;  and  if  this  question  were  so  presented  that 
we  could  cf)nsider  it,  we  would  be  inclined  to  hold  that  the  evidence 
I  ;ight  to  have  been  received.  Sleeplessness  and  nervous  restlessness 
are  admissible  evidence  on  questions  of  sanity  vel  non.  Inconclusive, 
ot  course ;  for  in  much  the  larger  number  of  persons  thus  affected,  there 
is  no  trace  of  mental  unsoundness.  The  causes  of  it  are  very  various. 
Still  it  is  a  circumstance,  although  in  many  cases  very  slight,  to  be 
weighed  by  the  jury. 

But  we  cannot  pronounce  that  the  Circuit  Court  erred  in  this  ruling. 
Tlie  testimony  was  offered  in  connection  with  otlier  evidence  clearly 
inadmissible;  offered  in  one  continuous  sentence  without  any  stop,  or 
mark  of  separation.  At  the  end  it  is  said,  "The  State  objected  to 
this  testimony,  as  it  was  offered,  and  the  court  sustained  each  objec- 
tion, and  the  defendant  separately  excepted."  This  is  too  indelinite. 
We  cannot  certainly  know  what  were  the  separate  parts  into  which 
this  mass  of  testimony  was  proposed  to  be  divided;  and  hence  Ave  ore 
lift  in  doubt  as  to  what  was  the  subject  of  each  and  every  exception 
lesorved.  To  be  the  subject  of  revision  here,  the  exception  must  clearly 
p  lint  to  what  it  refers,  i 

It  is  certainl}''  true  that  insanity,  properly  proved,  is  a  complete  answer 
to  a  criminal  charge.  An  unsound  mind  cannot  form  a  criminal  intent ; 
and  as  crime  includes  both  act  and  intent,  an  indispensable  constituent 
is  wanting,  when  the  mind  of  the  perpetrator  is  diseased  in  that  degree,, 
which  is,  by  the  law,  pronounced  insanity.  Few  subjects  have,  in 
later  times,  been  more  discussed  than  diseases  of  the  mind.  The  tendency 
of  modern  research  has  been  to  accord  to  mental  disorders  a  wider 
scope  than  was  formerly  acknowledged.  Care  must  be  maintained, 
however,  that  in  considerating  and  protecting  this  pitiable  class,  which 
appeals  so  loudly  to  our  sympathies,  we  do  not  br.-ak  down  all  legal 
barriers  to  crime,  and  leave  society  at  the  mercy  of  those  whose  evi- 
dence of  insanity  consists  in  their  supreme  depravity.  No  defence  per- 
haps is  more  easily  simulated  than  this ;  and  hence,  when  presented, 
its  evidences  should  be  carefully  and  considerately  scanned  ;  not  with  a 
forgone  conclusion  to  disallow  it,  as  a  pretence  ;  not  with  an  undue  bias 
in  its  favor;  but  with  a  firm  determination,  without  partiality  or  preju- 
dice, to  give  to  the  testimony  submitted  its  due  weight ;  nothing  more, 
nothing  less. 

'  Donnellt'.  Jones,  13  Ala.  490;  Newton  v.  Jackson,  23  Ala.  705  ;1  Brick.  Dig.  886,  sect  1186. 


360 


THE    BURDEN   OF   PROOF   OF    INSANITY. 


Boswell  r.  State. 


Tlic  questions,  what  degree  of  insanity  will  excuse  crime ;  on  whom 
and  to  what  extent,  is  cast  the  duty  of  making  good  or  of  overturning 
the  defence  of  insanity  in  a  criminal  prosecution,  and  tlie  measure 
of  proof  necessary  to  that  end  have  caused  the  greatest  contrariety 
of  judicial  opinion.  The  case  of  McNaghten  *  came  before  the  Britisli 
House  of  Lords  for  trial ;  and  their  lordships  submitted  certain  ques- 
tions to  the  judges  of  England,  which  were  answered  by  Lord  Chid 
Justice  TiNDAL,  speaking  for  all  the  judges  except  Mr.  Justice  Mai  i.i;. 
who  delivered  a  separate  opinion.  Among  the  questions  propounded 
were  the  following :  — 

"1.  What  is  the  law  respecting  alleged  crimes,  committed  by  persons 
afflicted  with  insane  delusion,  in  respect  of  one  or  more  particular  sul»- 
jects  or  persons ;  as,  for  instance,  when,  at  the  time  of  the  commission 
of  the  alleged  crime,  the  accused  knew  he  was  acting  contrary  to  law, 
but  did  the  act  complained  of  with  a  view,  under  the  influence  of  insane 
delusion,  of  redressing  or  avenging  some  supposed  grievance  or  injury, 
or  of  producing  some  supposed  public  benefit." 

"  2.  What  are  the  proper  questions  to  be  submitted  to  the  jury,  wlicii 
a  person,  alleged  to  be  afflicted  with  insane  delusion  respecting  one  oi' 
more  particular  subjects  or  persons,  is  charged  with  the  commission 
of  a  crime  (murder,  for  example),  and  insanity  is  set  up  as  a  defence." 

"  3.  In  what  terms  ought  the  question  to  be  left  to  the  jury,  as  to  tlic 
prisoner's  state  of  mind  when  the  act  was  committed." 

"4.  If  a  person,  under  an  insane  delusion  as  to  existing  facts,  com- 
mits an  offence  in  consecpience  thereof,  is  he  thereby  excused  ?  ' ' 

The  answer  of  the  judges  was  confined  to  the  letter  of  the  questions. 
They  said:  "  In  answer  to  the  first  question,  assuming  that  j'our  lord- 
ships' inquiries  are  confined  to  those  persons  who  labor  under  such 
partial  delusion  only,  and  are  not  in  other  respects  insane,  we  arc 
of  oi)inion  that,  notwithstanding  the  party  accused  did  the  act  com- 
plained of  with  a  view,  under  the  influence  of  insane  delusion,  of 
redressing  or  avenging  some  supjmsed  grievance  or  injury,  or  pro- 
ducing some  public  benefit,  he  is  nevertheless  punishable,  according  to 
the  nature  of  the  crime  committed,  if  he  knew  at  the  time  of  commit- 
ting such  crime  that  he  was  acting  contrary  to  law ;  by  which  expression 
we  understand  your  lordships  to  mean  the  law  of  the  land.  As  tin 
third  and  fourth  questions  appear  to  us  to  be  more  conveniently 
answered  together,  we  have  to  submit  our  opinion  to  be,  that  the  jury 
ought  to  be  told,  in  all  cases,  that  every  man  is  to  be  presumed  to  be 

»  lOCl.  &Fin.  200. 


TEST   OF    INSANITY. 


3(51 


Tlic  Answers  in  McNiigliten's  Cast', 


on  whom 
i'erturiiiii<r 
J  measure 
ontraricty 
,lie  British 
tain  qiies- 
orcl  Chief 
:e  Maim;. 
opoundt'd 

)y  persons 
-'ular  suli- 
>mmissioii 
ry  to  law, 
of  insane 
or  injury, 

ury,  when 
ng  one  or 
mmissioM 
lefence." 
as  to  tho 

cts,  com- 

uestions. 

our  lonl- 

der  such 

we  are 

xct  com- 

sion,  of 

or  pro- 

•ding  to 

cominit- 

pressidii 

As  the 

enienth 

the  jury 

id  to  bo 


biuie,  and  to  possess  a  .-lufflcient  degree  of  reason  to  be  responsiljle  for 
iiis  crimes,  until  the  contrary  is  jwoved  to  their  satisfaction  ;  and  tliat, 
to  establish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proved  that,  at  tlie  time  of  committing  the  act,  the  party  accused  was 
laboring  under  such  a  defect  of  reason,  from  disease  of  the  mind,  as 
not  to  know  tlje  nature  and  quality  of  the  act  he  was  doing ;  or  if  lie 
(lid  know  it,  he  did  not  know  he  was  doing  what  was  wrong.     The  mode 
of  putting  tlie  latter  part  of  the  question  to  the  jury  on  these  occasions 
has  generally  been,  whether  the  accused,  at  the  lime  of  doing  tlie  act, 
knew  the  difference  between  right  and  wrong;  wliich  mode,  tliough 
rarely,  if  ever,  leading  to  any  mistake  witli  the  jury,  is  not,  as  we 
conceive,  so  accurate  when  put  generally  and  in  the  abstract  as  when 
put  with  reference  to  the  party's  knowledge  of  riglit  and  wrong  in 
respect  to  the  ver}'  act  with  which  he  is  charged.     If  the  question  were 
to  be  put  as  to  the  knowledge  of  tlie  deceased,  solely  and  exclusively, 
with  reference  to  the  law  of  the  land,  it  might  tend  to  confound  the 
jury  by  inducing  them  to  believe  that  an  actual  knowledge  of  the  law 
of  the  land  was  essential  in  order  to  lead  to  a  comnction ;  whereas,  the 
law  is  administered  upon  the  principle  that  every  one  must  be  taken 
conclusively  to  know  it,  without  proof  that  he  d(jes  know  it.     If  the 
accused  were  conscious  that  the  act  was  one  which  he  ought  not  to  do, 
and  if  that  act  was  at  the  same  time  contrary  to  the  law  of  the  land, 
he  is  punishable ;  and  the  usual  course,  therefore,  has  been  to  leave 
the  (luestion  to  the  jury,  whether  the  party  accused  had  a  sufficient 
(Icixree  of  reason  to  know  that  he  was  doing  an  act  that  was  wrong ; 
and  this  course,  we  think,  is  correct,  accompanied  with  such  observa- 
tions and  explanations  as  the  circumstances  of  each  particular  case 
may  reijuire.     The   answer   to   the  fourth  question  must,  of  course, 
di'pend  on  the  nature  of  the  delusion ;  but,  making  the  same  assump- 
tion as  we  did  before, — namely,  that  he  labors  under  such  partial 
delusion  only,  and  is  not  in  other  respects  insane,  — we  think  he  must 
be  considered  in  the  same  situation,  as  to  responsibility,  as  if  the  facts 
with  respect  to  which  the  delusion  exists  were  real.     For  example,  if, 
under  the  influence  of  delusion,  he  supposes  another  man  to  be  in  the 
act  of  attempting  to  take  awaj''  his   life,  and  he  kills  that  man,  as 
he  supposes,  ill  self-defence,  he  would   be  exempt  from  punishment. 
If  his  defence  was,  that  the  deceased  had  inflicted  a  serious  injury  to 
his  character  and  fortune,  and  he  killed  him  in  revenge  for  such  sup- 
posed injury,  he  would  be  liable  to  punishment." 
Mr.  Justice  Maule  answered  the  first  of  the  questions  propounded  in 

' '  There  is  no  law,  that  I  am  aware 


the  negative. 


His  language  was ; 


302 


THE    BUUUK.N    OF    i'liOOF   OF    INSANITY. 


lioswc'll  r.  Stiito. 


of.  tliat  makt's  persons  in  the  state  described  in  the  qncstion,  not  re- 
sponsible for  their  criminal  acts.  To  rentier  a  person  irresjjonsible  for 
crime,  on  account  of  unsoinubiess  of  mind,  tlie  unsoundness  should, 
according  to  tlie  hiw  as  it  has  long  been  understood  and  held,  be  such 
as  rendered  him  incapable  of  knowing  right  from  wrong." 

It  must  not  be  overlooked  that  the  judges  were  considering  a  case  of 
partial  insanity ;  the  case  of  a  pi-rson  alllictcd  with  "  insane  delusion  in 
resjieetof  one  or  more  particular  subjects  or  persons."  And  the  opin- 
ion most  favorable  to  the  accused  —  that  of  all  the  judges  except  Justice 
Mai'le,  was  that  insane  delusion  was  no  justification  or  excuso  of 
homicide,  unU'Ss  the  perpetrator  was  insanely  deluded  into  the  belief  of 
the  existence  of  a  fact,  or  state  of  facts,  which,  if  true,  would  justify 
or  excuse  the  homicide,  under  the  law  as  upplicable  to  sane  persons. 

The  case  from  w'li  •■!  we  have  extracted  so  largely  was  heard  before 
the  House  of  Lords,  in  lSb'>.  Lords  IJi-ougham,  Campl)ell,  Cottenluun 
and  Wynford  expressed  gratification  at  the  answers  given  by  the  judges. 
Lyxuiuhst,  then  Lord  Chancellor,  presiding  over  that  august  couit,  said  : 
■■  I  agree  that  we  owe  our  thanks  to  the  judges,  for  the  attention  ami 
learning  with  which  they  have  answered  the  questions  now  put  to  them." 
The  law  of  England  on  this  very  delicate  question,  had  been  declared, 
in  a  very  decided  majority  of  imjwrtant  cases,  substantially  as 
announced  by  Mr.  Justice  ]\L\i:le  ;  though  in  some  of  the  earlier  cases  a 
severer  rule  and  measure  of  proof  were  exacted,  where  insanity  was 
relied  on  as  a  defence.* 

The  case  of  JIadJield,  a  very  celebrated  trial  for  attempting  to  take 
the  life  of  the  king,  seems  to  have  been  made  somewhat  an  exception  to 
the  rule.  This  is  the  case  in  which  Lord  Erskine  made  his  celebrated 
argument.  Wo  cannot  find  the  report  of  it  in  our  library;  but  in  1 
Russ.  on  Crimes,  12,  will  be  found  a  summary  of  the  evidence,  and  the 
ruling  of  Lord  Kkxyox  on  the  main  question.  The  prisoner  had  been 
severely  wounded  in  a  battle,  and  there  was  strong  evidence  that,  both 
before  and  after  the  assault,  he  had  insane  delusions  of  very  pronounced 
character.  The  attempt  was  made  in  the  theatre.  It  was  proved  that 
the  prisoner  "  sat  in  his  place  in  the  theatre,  nearly  three-quarters  of  an 
hour  before  the  king  entered,  that  at  the  moment  when  the  audience 
rose,  on  his  majesty's  entering  his  box,  he  got  up  above  the  rest,  and 
presented  a  pistol  loaded  with  slugs,  fired  it  at  the  king's  person,  and 
then  let  it  drop ;  and  when  he  fired,  his  situation  appeared  favorable  for 
taking  aim,  for  he  was  standing  upon  the  second  seat  from  the  orchestra 


'  See  the  authorities  collected  anJ  collated  in  1  Rubb.  on  Crimes,  9  to  14. 

4 


TEST    OF    INSANITY. 


3(53 


Iludrteld's  Case. 


Dn,  not  ro- 
onsible  for 
88  should, 
1,   l>e  such 

f  a  cftse  of 
It'liisioii  ill 

1   till!   Opill- 

eptJiistitr 

t'XCllsi'   of 

i  belii'f  of 
il<l  justify 
ersons. 
v(\  before 
.'Ottenluiiii 
lie  judges. 
)iiit,  said: 
ntioii  and 
to  them." 
declared, 
itially  as 
or  cases  a 
anity  \vas 

?  to  take 

eptionto 

elebrated 

)ut  ill   1 

and  the 
ad  been 
lat,  both 
nounced 
red  that 
rs  of  an 
ludience 
3st,  and 
on,  and 
able  for 

chestra 


HI  the  pit,  and  he  took  a  delilierate  aim  by  looking  down  the  barrel,  as 
a  man  usually  does  when  taking  aim.  On  his  apprehension,  amongst 
other  expressions,  lie  said  that  he  knew  perfectly  well  tliat  his  life  was 
forfeited;  that  he  was  tired  of  life,  and  regretted  nothing  but  tlie  fate 
of  a  woman  who  was  his  wife,  and  would  be  his  wil'e  a  few  days  longer, 
he  supposed.  These  words  he  spoke  calmly,  and  witliout  any  a[)i>arent 
derangement;  and  with  equal  calmness  repeated  that  he  was  tired  of  life, 
and  said  that  his  plan  was  to  get  rid  of  it  by  otlier  means;  he  did  not 
intend  anytliing  against  the  life  of  tlie  king;  he  knew  the  altcmi)t  only 
would  answer  his  imriiose. 

These  facts  showed,  not  only  that  lie  knew  right  from  wrong,  not 
only  that  he  knew  he  was  committing  a  crime  against  the  law,  by  whicli 
he  would  forfeit  his  life ;  but  it  exhibited  deliberation,  and  the  exercise 
of  the  reasoning  faculty.  Lord  Kkxyon  held,  that,  "  as  the  prisoner 
was  deranged  immediately  before  the  offence  was  committed  it  was  im- 
probable that  he  had  recovered  his  senses  in  the  interim;  and  although 
wire  they  to  run  into  nicety,  proof  might  be  demanded  of  his  insanity 
at  the  i)recise  moment  when  the  act  was  committed  ;  yet  there  being  no 
reason  f(jr  believing  him  to  have  been  at  that  period  a  rational  and  ac- 
countable being,  he  ought  to  be  acquitted."     He  was  acquitted. 

This  celebrated  case  suggests  several  reflections,  by  which  we  may 
be  profited  in  the  administration  of  the  law.  The  first  is  that  the  work- 
ings of  a  diseased  mind  are  so  variant  that  it  is  diflicult  to  lay  down  an 
absolute  rule  for  the  government  of  all  cases.  Each  case  must  depend, 
more  or  less,  on  its  own  particular  facts.  And  such  is  the  language  of 
the  adjudged  cases.  In  the  next  place,  the  charge  to  the  jury  should  be 
so  shaped  as  to  apply,  as  far  as  the  law  will  allow,  to  the  facts  of  the 
lasft  on  trial.  Third,  that  calmness,  indifference  to  results,  conscious- 
ness of  the  moral  or  legal  criminality  of  the  act,  with  connectedness  in 
the  employment  of  the  reasoning  faculty,  while  not  conclusive  evidence 
of  sufficient  sanity  to  justify  criminal  punishment,  are  nevertheless 
sstrong  circumstances  tending  to  prove  legal  accountability. 

In  HadJiekVs  Case  we  infer  from  the  language  of  the  court,  that  he 
would  have  been  adjudged  sane  and  accountal)le,  if  it  had  not  been 
siiown  that  a  very  short  time  preceding  the  attempt  on  the  king's  life  he 
had  shown  unmistakable  .symptoms  of  insanity.  So  that  his  case  can 
scarcely  be  classed  as  an  exception  to  the  rule,  Avhich  requires  the  insan- 
ity which  excuses  to  be  proven  to  have  existed  at  the  very  time  the  act 
complained  of  was  committed.  The  cool,  calm,  indifferent  conduct  of 
the  prisoner,  his  consciousness  of  right  and  wrong,  were,  neither  nor  all 
of  them,  evidences  which  Lord  Kenyon  regarded  as  proving  insanity.    He 


364 


TlIK    HUIIOEX    OF    I'UOOt'   OF    1X8AMTY. 


UosWL'll  r.  Slate. 


treated  tlicin  as  indiciu  of  Hunity,  to  be  overcome.  The  recent,  clcai'ly 
proved  insanity  of  tlie  prisoner  caused  liim  to  bcjlievo  that  in  tliat  case, 
reason  had  not  re-asserted  her  dominion.  From  it  he  inferred  the  con- 
tinued presence  of  insane  dehision,  when  the  causeless  and  seemingly 
unaccountable  attempt  was  made  on  the  life  of  the  king.  So,  to  justify 
the  inference  of  insanity  from  the  calmness  of  manner  and  indifference 
to  consequences,  which  sometimes  mark  the  conduct  of  the  man-slayer, 
there  should  be  convincing  evidence  of  previous  insanity,  or  insani' 
delusions,  so  recent  as  coupled  with  the  causelessness  of  the  killing,  to 
raise  the  presumption  that  the  i)aroxv..ai  had  not  entirely  passed  away. 

The  doctrine  in  regard  to  partial  insanity  asserted  by  the  Englisii 
judges  in  McXaghten' s  Case,  was  afflrmed  in  a  very  able  opinion  by 
Chief  Justice  Shaw,  in  Commonwealth  v.  liofjerti,^  and  the  same  principle 
is  asserted  by  Wharton  in  his  work  on  Homicide,^  citing  many  authoii- 
ties  in  support  of  it ;  and  in  2  Greenleaf 's  Evidence.^  See  also  Flana- 
gan v.  People,"*  Spann  v.  State,^  People  v.  McDonnell  ^  Blackburn  v. 
State.i 

There  is  a  species  of  mental  disorder,  a  good  deal  discussed  in  mod- 
ern treatises,  sometimes  called  "  irresistible  impulse,"  "moral  insan- 
ity," and  jyerhaps  by  some  other  names.  If,  by  these  terms,  it  is 
meant  to  affirm  that  a  morbid  state  of  the  affections  or  passions,  or  an 
unsettling  of  the  moral  system,  the  mental  faculties  remaining  mean- 
while in  a  normal,  sound  condition,  excuses  acts  otherwise  criminal,  we 
are  not  inclined  to  assent  to  the  proposition.  The  senses  and  mental 
powers  remaining  iinimi)aired,  that  which  is  sometimes  called  "moral," 
or  "  emotional  insanity,"  savors  too  much  of  a  scared  conscience,  or 
atrocious  wickednc&s,  to  be  entertained  as  a  legal  defence.  Gibson,  C. 
J.,  in  Commonwealth  v.  Hosier,  v  hile  recognizing  the  existence  of 
moral  or  homicidal  insanity,  as  "  consisting  of  an  in-esist'ble  inclination 
to  kill,  or  to  commit  some  (Ulic/  particular  offence,"  adds:  "There 
may  be  an  luiseen  ligament  pressing  on  the  mind,  drawing  it  to  conse- 
quences which  it  sees  but  cannot  avoid,  and  placing  it  under  a  coercion 
which,  while  its  results  are  clearly  pei'ceived,  is  incapable  of  resistance." 
With  all  resi)ect  for  the  great  jurist  who  uttered  this  language,  we  sub- 
mit if  this  is  not  almost  or  quite  the  synonym  of  that  highest  evidence 
of  murderous  intent  known  to  the  common  law  —  a  heart  totally  de- 
praved and  fatally  bent  on  mischief.  Well  might  he  add:  "The  doc- 
trine which  acknowledges  this  mania  is  danirerous  in  its  relations,  and 


?  7  Mete.  500. 
3  Sect.  S66. 


»  Sect.  372. 
<  52  X.  V.  467. 


23  Ohio  St.  146. 


8  4  Pa.  St.  2W. 


'•>  47  Geo.  553. 
«  47  Cal.  134. 


MOKAI.    INNAXITY    DIHAIM'UOVKI). 


3(5r) 


Burden  of  Proof. 


(■;in  be  rec()u;iii/.i'«l  <iiily  in  the  eleurcHt  csisos.  It  ouylit  to  1)0  hIiowm  to 
liave  boon  habitual,  or  at  least  to  have  evinced  itself  in  more  than  a 
siiirrle  instanee.  Tlie  fretiueney  of  this  constitutional  niahuly  is  fortu- 
iiiitely  small ;  and  it  is  better  to  conline  it  within  the  strietest  limits. 
If  juries  were  to  allow  it  as  a  general  motive,  operatinjr  in  cases  of 
this  character,  its  recognition  would  destroy  social  order  as  well 
as  personal  safety.  To  establish  it  as  a  justillcation  in  any  par- 
ticular case,  it  is  necessary  to  show  by  clear  pioof,  either  its  con- 
toniporaneous  existence  evinced  by  present  circumstanci's,  or  the 
existence  of  an  habitual  teridency  developed  in  previous  cases 
liecoming  in  itself  a  second  nature."  What  is  meant  by  "evinc- 
ing itself  in  more  than  a  single  instance,"  and  how  this  jirinciple  would 
work  in  administration,  we  are  left  to  speculate.  Can  that  lie  a  sound 
legal  principle,  whose  general  recognition  would  destroy  social  order,  as 
well  as  personal  safety?  AVe  concur  with  INIr.  Wharton,*  that  moral  in- 
sanity, which  consists  of  irresistible  imi)ulsc,  co-existing  with  mental 
sanity,  "  has  no  supi)ort  either  in  psychology  or  law." 

On  the  question  of  the  duty  and  mei»surc  of  proof  on  (luestions  of 
insanity,  as  a  defence  in  a  criminal  trial,  some  rulings  have  been  made 
in  this  court.  In  State  v.  3farler,-  (a  case  of  murder)  the  Circuit 
Court  had  charged  the  jury,  if  the  facts  necessary  to  constitute  the 
crime  of  murder  had  been  established  by  the  proof,  that  it  devolved  upon 
the  prisoner  to  prove  his  insanity  at  the  time  of  the  commission  of  the 
act,  and  if  the  jury,  from  the  evidence,  entertained  a  reasonable  doubt 
of  the  prisoner's  insanity  at  the  time  of  the  commission  of  the  act,  and 
believed  also  that  it  would  1)e  murder  in  him,  it  would  1)e  their  duty  to 
Inid  him  guilty  of  murder."  The  court  had  been  requested  to  instruct 
the  jury  that  a  reasonable  doubt  of  the  sanity  of  the  prisoner  required 
his  acquittal.  This  court  (OiniOND,  J.)  quoted  from  the  language  of 
Maxsp'ield,  C.  J.,  in  BellingJiam's  Cane,  as  follows:  "  That  in  order  to 
support  such  a  defence  it  ought  to  be  proved  by  the  most  distinct  and 
unquestionable  evidence  that  the  prisoner  was  incapable  of  judging  be- 
tween right  and  wrong;  that,  in  fact,  it  must  be  proved  beyond  all 
iloubt  that,  at  the  time  he  committed  the  act,  ho  did  not  consider  that 
murder  was  a  crime  against  the  laws  of  God  and  nature  ;  and  that  there 
was  no  other  proof  of  insanity  which  would  excuse  murder  or  any  other 
crime."  Judge  Oujiond  added :  "  These  opinions  which  are  undoubted 
law,  show  the  sti'ingent  nature  of  the  evidence  by  which  insanity  must 
be  proved,  to  be  an  excuse  for  crime  ;  but  we  do  not  understand  that 


'  Horn.,  sect.  574. 


•2  Ala.  4:!. 


3()«) 


THE    BURDEN    OF    I'KOOF   OF    INSANITY 


Boswell  r.  Stuto. 


even  this  defence  must  be  establislied  by  evidence  so  conclusive  in  it-. 
nature  as  to  exclude  every  other  liyr-othesis.  This  would  be  requiriuji; 
somethin<:f  akin  to  matliematical  proof,  of  which  the  subject  is  clearly 
not  susci'ptible  ;  but  the  jur}'  must  be  fully  satisfied  that  the  defence  is 
made  out  bej'ond  the  reasonable  doubt  of  a  well-ordered  mind.  To  test 
the  case  at  bar  by  these  principles  the  court  was  moved  to  charge  tlu' 
jur}-,  '  that  if  they  entertained  any  reasonable  doubt  as  to  the  sanity  of 
the  prisoner,  the3' nuist  acquit  him ; '  which  charge  the  court  refused. 
Upon  the  principles  here  laid  down,  it  was  error  to  refuse  this 
charge.  *  *  *  it  w'ouM  have  been  highly  proper  that  the  court. 
when  called  on  thus  to  clun-ge,  should  have  explained  to  the  jury  that 
this  defence  was  reipiirod  to  be  made  out  by  strong,  clear,  and  convinc- 
ing proof;  and,  guided  by  these  considerations,  if  they  still  entertain  a 
reasonable  doubt  of  the  sanity  of  the  prisoner,  it  was  their  duty  to 
acquit." 

We  confess  ourselves  unable  to  reconcile  the  two  propositions  of  tliis 
charge.  Under  the  one  the  defence  of  insanity  is  required  to  be  made 
out  by  strong,  clear,  and  convincing  proof ;  under  the  other  the  evi- 
dence is  sufficient  if  it  generates  a  reasonable  doubt.  If  reasonable 
doubt  of  the  existence  of  a  fact  is  equivalent  to  strong,  clear  and  con- 
vincing i)roof  of  its  existence,  then  the  charge  can  be  reconciled  and 
understood.  "With  every  respect  for  the  able  jurist  by  whom  tiiis  opin- 
ion was  delivered,  we  fdTar  its  tendency  would  be  to  confuse  and  mi.s- 
lead  the  jury.  C.  J.  Collieu  dissented,  saying :  "A  reasonable  doubt 
whether  the  accused  was  sane  would  not  authorize  his  acquittal.  There 
must  be  a  preponderance  of  proof  to  show  insanity,  to  authorize  a  ver- 
dict of  not  gi^ilty  for  that  cause." 

In  the  case  of  State  v.  Briny ea^^  the  same  judges  presiding,  on 
the  question  of  insanity  as  a  defence,  the  Circuit  Court  had  charged 
the  jury  that  the  prisoner  was  bound  to  make  out  by  testimony,  beyond 

1  reasonable  doubt,  that  he  was  insane  at  the  time  the  act  was  coni- 
ixjitted,  by  proof  clear,  strong,  and  convincing ;  and  if,  upon  the  testi- 
mony, the  jury  should  entertain  no  reasonable  doubt  of  the  defendant's 
sanity,  they  should  find  him  guilty."  It  will  be  observed  that  in  this 
case,  the  rule  laid  do"wn  by  the  Circuit  Court  as  to  the  measure  of  proof 
of  insanity  required  of  the  prisoner,  was  that  it  should  be  shown  beyond 
all  reasoriable  doubt ;  and  as  to  this,  the  court  added :  "If  the  jury  enter- 
tained no  rea3onaV)le  doubt  of  the  prisoner's  sanity,  they  should  find 
him  guilt}'."     This  court,  in  commenting  on  this  charge,  said:   "The 


1  5  Al;i.  241. 


KURDEX  OF  I'UOOF. 


367 


Tliu  Aliil);iiiia  fuses  Keviewed. 


objection  to  the  charge  cannot  avail  the  in-isoniT.  as  it  is  in  strict  accord- 
ance with  tlie  rule  declared  in  3Iarlei'\s  Case.  *  *  *  xi,e  prisoner 
then  was  bound  to  make  out -by  testimony,  beyond  all  reasonable 
doubt,  that  he  was  insane  at  the  time  the  act  was  committed,  hy  proof 
strong,  c.ear  and  convincing.  *  *  *  The  charge,  it  is  true,  is  in 
tlie  negative,  —that  if  the  jury  had  no  reasonal)le  doubt  of  the  sanity 
of  the  prisoner  he  should  be  convicted.  This,  as  it  seems  to  us,  is 
precisely  equivalent  to  a  charge  that,  if  a  reasonalile  doui)t  of  his  sanity 
was  entertained,  the  jury  should  acquit."  This  charge,  then,  as  con- 
strued by  this  court,  and  its  correctness  affirmed,  reasserts  the  two 
propositions,  which,  we  have  said  above,  we  cannot  reconcile.  It  goes 
even  further,  f.nd  affirms  that  insanity,  as  a  defence,  must  be  proved 
beyond  a  reasonable  doubt ;  and  then  adds,  if  the  testimony  generates 
a  doubt  of  its  existence,  "this  is  sufficient."  Rules  of  law  ought  not 
to  be  so  declared  as  to  leave  the  mind  bewildered  in  their  attempted 
solution.  Instructions  to  juries  should  l)e  clear  and  freed  from  am- 
biguit}-. 

In  McAllister  v.  State,-  this  court  (Ch.  J.  Dargan  delivering  the 
opinion)  said :  "  When  the  i)lea  of  insanity  is  interposed  to  protect  one 
from  the  legal  consequences  of  an  act  which  amounts  to  a  crime,  to 
render  the  defence  available,  the  evidence  must  be  such  as  to  convince 
the  minds  of  the  jury  that,  at  the  time  the  act  was  done,  the  accused 
was  not  conscious  that,  in  doing  the  particular  act,  he  was  committing  a 
crime  against  the  laws  of  God  and  his  country.  If  he  knew  right  from 
wrong,  and  knew  that  he  was  violating  the  law,  he  is  then  guilty;  for 
it  is  this  conscious  knowledge,  connected  with  the  act,  that  consti- 
tutes the  crime."  We  feel  at  liberty  to  affirm  that  the  question  of  the 
measure  of  proof,  on  the  defence  of  insanity,  is  not  settled  in  this 
court. 

Much  has  been  written,  and  there  is  m.uch  hypercriticism  in  the  dis- 
cussion of  the  propositions,  that,  in  criminal  prosecutions,  the  onus  is 
never  shifted,  and  that  the  presumption  of  innocence  accompanies  the 
prisoner  through  all  the  stages  of  his  trial.  These  are  valuable  canons 
of  the  law,  but,  like  most  other  general  rules,  are  subject  to  some  modi- 
fications in  their  application,  the  observance  of  which  is  essential  to  the 
good  order  d  well-being  of  society.  Murder,  at  common  law,  is 
made  up  of  two  ingredients, —the  act  and  the  intent.  All  men  are 
presumed  to  intend  the  natural  result  of  their  voluntary  acts.  The 
voluntary  employment  of  a  deadly  weapon,  h  ing  in  wait,  the  admin- 


17  Ala.  i:n. 


3f)8 


THE    liL'HUEX    OF   PUOOF    OK    INSAMTV. 


Boswel!  V.  State. 


istration  of  poison,  each  supplies  tlic  presumption  whicli,  unexplained, 
is  proof  of  the  intent  or  malice  aforethought  ■which  stamps  the  homicide 
as  murder.  Proof  of  the  killing  arid  the  manner  of  it  accomplishes 
the  purpose  of  establishing  the  factum  or  act,  and  the  felonious  intent 
or  formed  design  with  which  it  is  done,  unless,  in  the  testimony  which 
proves  the  act,  or  in  some  otlier  proof,  the  offence  is  extenuated  or 
excused.  The  common-law  definition  of  murder  declares  that  tlic 
malice  which  characterizes  its  bad  eminence  may  be  implied  as  well  as 
expressed.  So,  one  fijund  in  possession  of  goods,  proven  to  have  boon 
recently  stolen,  is  presumed  to  be  the  thief,  until  explanation  of  his 
possession  is  given.  Many  statutes  which  create  offences  out  of  cer- 
tain acts,  unless  certain  conditions  exist,  cast  on  the  accused  the  duty 
of  excusing  himself  by  proof  of  the  required  conditions.  In  this  class 
are  the  offences  of  carrying  deadly  weapons  concealed  about  the  person, 
and  retailing  spirituous  liquors  without  license.  So,  then,  there  aro 
cases  in  the  law  whore  one  material  element  of  a  crime  is  inferred  from 
the  proof  which  establishes  the  other,  if  there  be  before  the  jury  only 
the  testimony  which  establishes  tliat  other  fact.  We  imagine,  also, 
there  is  a  distinction  and  a  difference  between  the  constituent  facts 
which  make  up  a  given  crime, — nuu-der,  for  example, — and  which 
facts  are  common  to  every  case  within  the  class,  and  those  occasional 
or  exceptional  questions  of  fact  which  do  not  necessarily  belong  to  the 
class,  but  may  be  termed  the  accidents  of  tlie  case.  That  a  reasonable 
creature  in  being  was  killed  ;  that  the  prisoner  on  trial  was  the  agent  or 
manslayer,  and  that  he  did  the  act  with  malice  aforethought,  express 
or  implied,  are  facts  necessary  to  be  shown  in  every  successful  prose- 
cution for  murder.  To  this  extent,  and  to  each  of  these  constituent, 
indispensable  elements,  the  burden  rests  with  the  State  to  prove  tlieir 
existence  lieyond  a  reasonable  doubt.  The  presumption  of  innocence, 
in  which  all  men  are  primarily  panoplied,  follows  and  guards  them 
through  all  the  stages  of  the  trial,  until  these  uniformly  constituent 
facts  are  established.  The  law,  in  its  firm,  yet  conservative  morality, 
declares  that  all  men  who  have  attained  to  years  of  discretion  are 
presumed  to  be  of  sound  mind ;  and  without  any  proof  of  that  fact, 
resting  securely  in  the  presumption  of  sanity,  it  adjudges  the  offender 
shall  suffer  its  penalties.  But  there  are  persons  of  mature  years  whose 
minds  are  so  diseased  as  that  they  are  incapable  of  discriminatini; 
between  right  and  wrong ;  and  this  defence  is  set  tip  in  avoidaiue 
of  the  facts  which  otherwise  stamp  tlie  prisoner  as  a  murderer.  We 
here  enter  the  field  of  the  exceptional,  the  accidental ;   and  inasmudi 


hi 
th< 
h( 
iuH 

Cc 
nil 


BUKDEX   OF   PROOF. 


3()1' 


The  Authorilli's  Keviewed. 


jxplained. 

homici(k' 

omplislios 

jua  intent 

)ny  which 

nuated  or 

that  the 

as  well  as 

have  been 

on  of  his 

lit  of  cor- 

1  the  duty 

this  class 

le  person, 

there  aie 

rred  from 

jury  only 

^ine,  also, 

ent  facts 

nd  which 

>ceasional 

ng  to  the 

easonablo 

aaent  or 

express 

ul  prosc- 

istituent, 

ovc  their 

nocence, 

Is  them 

istituent 

iiorality, 

tion  an' 

lat  fact. 

offender 

s  whose 

iiinatin!^ 

oidanco 

■cr.     ^Ve 

uisinm  li 


as  the  law  presumes  sanity,  that  presunii)tion,  liivC  that  of  innocence, 
should  prevail  throughout  the  trial  until  it  is  overcome.  And  whether 
the  evidence  of  insanity  arise  out  of  the  testimony  which  proves  the 
homicide,  or  is  shown  aliunde,  reason  and  analogy  alike  declare  it  is 
iiisutficient  until  it  overturns  the  presumption  of  sanity. 

In  Commoiiioealth  v.  Ecldy,^  the  court  said:  "The  burden  is  on  the 
Commonwealtli  to  prove  all  that  is  necessary  to  constitute  the  crime  of 
iiuinler.  And,  as  that  crime  can  be  committed  only  by  a  reasonable 
l)eing —  a  person  of  sane  mind —  the  burden  is  on  the  Commonwealtli  to 
prove  that  the  defendant  was  of  sane  mind  when  he  committed  the  act 
of  killing.  But  it  is  a  ]iresuinption  of  law  that  all  men  are  of  sane 
mind ;  and  that  presumption  sustains  the  burden  of  proof,  unless  it  is 
rebutted  and  overcome  b}''  satisfactory  evidence  to  the  contrary.  In 
order  to  overcome  this  presumption  of  law  and  shield  the  defendant 
from  legal  responsibility,  the  burden  is  on  him  to  prove  to  the  satisfac- 
tion of  the  jury,  by  a  preponderance  of  the  whole  evidence  in  the 
case,  that,  at  the  time  of  committing  the  homicide,  he  was  not  of 
sane  mind." 

Pennsylvania  stands  unmistakably  committed  to  the  same  doctrine. - 
The  opinion  is  both  able  and  philosophic.  Says  Agnew,  C.  J.:  "In- 
sanity is  a  defence.  It  presupposes  the  proof  of  the  facts  which  con- 
stitute a  legal  crime,  and  is  set  up  in  avoidance  of  punishment.  Keeping 
in  mind,  then,  that  an  act  of  wilful  and  malicious  killing  has  been 
proved,  and  requires  a  verdict  of  murder,  the  prisoner,  as  a  defence, 
avers  that  he  was  of  unsound  mind  at  the  time  of  the  killing ,  and  inca- 
l)ahle  of  controlling  his  will ;  and,  therefore,  that  he  is  not  legally  re- 
sponsible for  his  act.  *  *  *  Soundness  of  mind  is  the  natural  and 
normal  condition  of  men,  and  is  necessarily  presumed  ;  not  only  because 
the  fact  is  generally  so,  but  because  a  contrary  presumption  would  be 
fatal  to  the  interests  of  society.  No  one  can  justly  claim  irresfjonsi- 
bllity  for  his  act  contrary  to  the  known  nature  of  the  race  of  which  he 
is  one.  He  must  be  treated,  and  be  adjudged  to  be  a  reasonable  being, 
until  a  fact  so  abnormal  as  a  want  of  reason  positively  appears.  It  is, 
therefore,  not  unjust  to  him  that  he  should  be  so  conclusively  presumed 
to  be  until  the  contrary  is  made  to  appear  on  his  behalf.  To  be  made 
so  to  appear  to  the  tribunal  determining  the  fact  the  evidence  of  it  must 
be  satisfactory,  and  not  merely  doubtful,  as  nothing  loss  than  satisfac- 
tion can  determine  a  reasonable  mind  to  beheve  a  fact  contrary  to  the 
<'ourse   of    nature."     To  the  same  effect  are  State  v.  Sniith,^  People 


7  Gray,  flSS. 


'  Ortwoin  v.  Commonwealth,  "6  Pft.  St.  414. 


3  53  Mo.  267. 


24 


370 


THE   BURDEN   OF   PROOF   OF   INSANITY. 


Boswoll  V.  State. 


V.  McDonnell,^  State  v.  Latvrence,^  Leoffner  v.  State,^  State  v. 
StarluHf,'^  State  v.  Felter,^  McKenzie  v.  State.^  Mr.  Wharton,  in  his 
work  on  Homicide^  classes  New  York  among  the  States  that  hold  in- 
sanity is  a  defence,  the  afflrmative  proof  of  which  rests  with  the  de- 
fendant.    The  question,  we  think,  is  somewhat  unsettled  there. ^ 

There  are  respectable  authorities  to  the  contrary,  but  M-e  decline  to 
follow  them.  We  hold  then  that  insanit}'  is  a  defence  which  must  be 
proven  to  the  satisfaction  of  the  jury  by  that  measure  of  proof  which 
is  required  in  civil  causes ;  and  a  reasonable  doubt  of  sanity,  raised  by 
all  the  evidence,  does  not  authorize  an  acquittal.  The  doctrine  we  have 
been  combatting  is,  we  think,  purely  American  ;  and  we  regard  it  as  an 
erroneous  application  of  the  principle  of  presumed  innocence.  One 
disputable  presumption  should  not  be  allowed  to  override  and  annihilate 
another. 

Under  the  rules  above  declared  the  entire  affirmative  charge  of  the 
Circuit  Court  is  free  from  error.  Of  the  charges  asked  by  defendant, 
those  numbered  1,  2  and  3  were  abstract,  there  being  no  evidence  to 
support  them ;  those  numbered  4,  5,  G,  10,  11,  12,  13,  were  all  rightly 
refused  under  the  principles  we  have  declared  above  ;  charges  6,  7  ami 
8  were  calculated  to  mislead  the  jury,  if  they  were  not  abstract,  and 
were  rightly  refused  :  the  two  charges  given  at  the  instance  of  the  prose- 
cution are  free  from  error ;  and  the  judgment  of  the  Circuit  Court  must 
be  affirmed. 

It  is,  therefore,  ordered  and  adjudged  that,  on  Friday,  the  eleventh 
day  of  June,  1880,  the  sheriff  of  Talladego  County  execute  the  sen- 
tence of  the  law,  by  hanging  the  said  George  Boswell  by  the  neck  until 
he  is  dead. 

Brickell,  C.  J.,  dissenting. 


1  47  Cal.  134. 

2  57  Me.  574. 

3  10  Ohio  St.  599. 

*  6  Jones  N.  C.  366. 
'  32  Iowa,  50. 


«  26  Ark.  332 ;  Wharton  on  Horn.,  sect.  665 ; 
2  Greenl.  Ev.,  sect.  373. 
'  Sect.  666. 
e  Flanagan  v.  People,  52  N.  Y.  467. 


STATE     V.    FELTER. 


371 


Right  to  Open  and  Close. 


1.,  sect.  66S; 


BURDEN  OF  PROOF  — RIGHT  TO  OPEN  AND  CLOSE. 

State  v,  Felter. 

[32  Iowa,  49.] 

In  the  Supreme  Court  of  Iowa,  June  Term,  1871. 

Hon.  Jamks  G.  Day,  Chief  Justice. 
"     Jo.SKPII  M.  Bkck,  \ 

"    William  E.  Miller,  \  Judges. 
"    Chester  C.Cole,        j 

1.  Burden  of  Proof.  — The  defence  of  insanity  must  be  established  by  proof  satisfactory 
to  tlie  jury. 

.'.  Rig'httoopeiiand  Close  —  Practice.  —  In  acriniinal  trial,  where  the  defence  is  insan- 
ity, the  prisoner  is  not  entitled  to  open  and  close. 

Appeal  from  Linn  District  Court. 

Indictment  for  miiriler.  The  case  was  tried  before  and  the  judgment 
of  conviction  reversed.!  Upon  his  second  trial  the  prisoner  was  con- 
victed  of  murder  in  the  second  degree,  and  sentenced  to  the  peniten- 
tiary for  life.     He  again  appeals. 

/.  M.  Preston  &  Son,  for  the  appellant. 

//.  0' Conner,  Attorney-General,  for  the  State. 

Cole,  J.  The  defence  was  grounded  mainly  upon  the  alleged  insanity 
(.r  luonomania  of  the  defendant. 

His  counsel  asked  that  they  be  allowed  the  opening  and  closing  argu- 
ment to  the  jury. 

The  refusal  to  grant  this  constitutes  the  third  assigned  error.  It  was 
necessary  for  the  State  to  prove  both  the  kilUng  and  the  malicious  in- 
tent. The  former  was  not  controverted,  but  tlie  latter  was  denied ;  and 
for  the  proof  of  the  denial  the  defendant  endeavored  to  show  that  he 
was  so  mentally  deranged  at  the  time  as  to  be  incapable  of  entertaining 
the  malicious  intent.  The  intent  was  therefore  not  admitted,  but  was. 
left  for  the  State  to  establish  by  proof.  Hence,  it  was  not  error  to  re- 
fuse defendant's  counsel  the  opening  and  closing  argument  to  the  jury.- 

The  defendant  asked  the  court  to  instruct:  "If  the  jury  entertain, 
from  the  evidence,  a  reasonable  doubt  as  to  criminal  intent,  or  as  to 
wliethcr  the  defendant  was  of  sound  mind  and  discretion,  the  defendant 
is  entitled  to  the  benefit  of  that  doubt,  and  your  verdict  should  be  '  not 


state  t».  Felter,  25  Iowa,  07. 


s  Loeffner  v.  State,  10  Ohio  St.  598. 


372 


THE    BURDEN   OF   TlJOOr    OF    INSANITY. 


State  V.  Folter. 


guilty;'"  which  the  court  refused.  Instead  thereof,  the  court  in- 
structed the  jury :  "  It  is  not  necessary,  in  order  to  acquit,  that  tlie  evi- 
dence upon  tlie  question  of  insanity  should  satisfy  you,  beyond  all 
reasonable  doubt,  that  the  defendant  was  insane ;  it  is  sufficient,  if, 
upon  consideration  of  all  the  evidence,  and  the  facts,  and  circum- 
stances disclosed  by  the  testimony,  you  are  reasonably  satisfied  that 
he  was  insane.  If  the  weight  or  preponderance  of  the  evidence 
shows  the  insanity  of  the  defendant,  it  raises  a  reasonable  doubt  of 
his  guilt." 

The  refusal  of  the  one  and  the  giving  of  the  other  is  the  fourth  as- 
signed error. 

It  IS  iv  "'sputed  that  the  current  and  weight  of  authorities  are  in 
accoi  "I  ci'    instruction  as  given  by  the  court,  and  in  our  opinion  it 

has  a!&v,-  luu  t-upport  of  reason,  humanity,  and  public  policy.  Formerly 
the  rul<^  was  that  where  an  accused  relied  upon  the  defence  of  insanity, 
itwasjncrr  >c»nt  '  him  to  prove  his  insanity  beyond  a  reasonable 
doubt. ^  Many  ca.H';s,  however,  state  the  rule  substantially  as  it  was 
given  by  the  District  Court  in  this  case.^ 

The  appellant's  counsel  rely  upon  People  v.  McCann,^  and  Hopps  v. 
People,'^  in  support  of  the  instruction  as  asked  b}'  them.  The  first  case  •"' 
does  not  support  that  view,  but  does  support  the  view  taken  bj'  the 
court.  BowEN,  J.,  who  wrote  the  leading  opinion  of  the  court  in  that 
case,  says :  "•  It  is  also  a  rule,  well  established  b}'  authority,  that  where, 
in  a  criminal  case,  insanity  is  set  up  as  a  defence,  the  burden  of  proving 
the  defence  is  with  the  defendant,  as  the  law  presumes  every  man  to  be 
sane.  But  I  apprehend  that  the  same  evidence  will  establish  the  de- 
fence which  would  prove  insanity  in  a  civil  case.  The  rule  requiring 
the  evidence  to  satisfy  the  jury  beyond  a  reasonable  doubt  is  one  in 
favor  of  the  individual  on  trial  charged  with  crime,  and  is  applicable 
only  to  the  general  conclusion,  from  the  whole  evidence,  of  guilty  or 
not  guilty."  The  case  of  Hopps  v.  People  was  decided  by  a  majority 
opinion,  Mr.  Justice  Walker  dissenting,  and  is  directly  in  conflict  with 
the  previous  unanimous  holding  of  the  court  in  Fisher  v.  People.^  We 
also  find  that  a  majority  of  the  Supreme  Court  of  Indiana  sustains  the 


1  state  9.  Spencer,  21  N.  J.  (L.)  IflG; 
State  V,  Brinyea,5  Ala.  241 ;  People  r.  Myers, 
20  Cal.  518;  State  f.  Huting,  21  Mo.  477;  1 
Whart.  Am.  Cr.  Law,  par.  55. 

a  Loeffner  V.  State,  10  Ohio  St.  698;  Fisher 
V.  People,  23  lU.  28;i;  Co^  : .  Kimball,  24 
Pick.  3Cfi;  Com.  «•.  Rogers,  7  Mete.  500;  Gra- 
ham V.  Com.,  IG  B.  Mon.  589;  Bonfanti  v. 


State,  2  Minn.  123 ;  State  v.  Starling,  6  Jones, 
L.,  :566 ;  State  v.  Klinger,  43  Mo.  127 ;  State  r. 
Bartlett,  43  N.  H.  224,  and  many  other  cases 

3  16  N.  V.  58;   s.  c.  3  Park.  272. 

*  31  111.  385. 

6  IG  N.  Y.  58. 

«  23  111.  283.  See,  also,  Chase  r.  People, 
40  Id.  352,  explaining  the  Hopps  Case. 


GRAHAM    V.  CO31M0NWEALT1I. 


373 


court  i li- 
lt the  evi- 
eyond  all 
iciont,  if, 
circum- 
sfied  that 
evidence 
doubt  of 

ourth  as- 

ies  are  in 
>pinion  it 
Formerly 
insanity, 
;asonal)le 
IS  it  was 

Hop2is  V. 
rst  case  •' 
n  bj'  tlic 
rt  in  that 
it  Avhero. 
f  proving 
lan  to  be 
1  the  de- 
requiring 
s  one  in 
pplicable 
guilty  or 
majority 
diet  with 
'e.6  We 
ains  the 


g,  6  Jones, 
;7;  State  r. 
ther  cases 


Syllabus. 


doctrine  in  the  IIopps  Case,  in  Polk  v.  State.^  We  have  given  to  the 
(luestion  our  careful  and  deliberate  consideration,  and  are  persuaded 
that  the  matter  of  reasonable  doubt  has  ever  been  wisely  limited  to  the 
general  conclusion  of  guilty  or  no,  upon  all  the  evidence  in  the  case ; 
that  it  cannot  safely  be  applied  to  any  one  fact  in  the  case,  howsoever 
material  it  may  be ;  that  the  sanity  of  the  accused  being  once  estab- 
lished in  the  case,  either  by  direct  and  positive  testimony,  or  by  the 
presumption  of  law,  or  both,  the  accused  cannot  avoid  it,  it  being  in  its 
nature  an  affirmative  defence,  except  by  a  preponderance  of  proof,  or 
which  is  the  same,  satisfactory  evidence  of  his  insanity.  The  instruc- 
tion of  the  court  was  therefore  correct. ^ 

The  only  other  error  assigned  is,  that  the  verdict  is  contrary  to  the 
evidence.  We  have  given  to  the  evidence  a  careful  reading,  and  are 
fully  satisfied  that  the  jury  came  to  a  correct  conclusion  upon  it. 

Aside  from  the  terrible  atrocity  of  the  crime,  and  the  revolting  cir- 
cumstances attending  its  perpetration,  there  is  substantially  nothing  to 
support  the  defence  of  insanity. 

Afirmed. 


'     BURDEN  OF  PROOF— JURY  MUST  BE  SATISFIED  OF  INSANITY. 

Graham  v.  Coimonwealth. 

[IG  B.  Mon.  587.] 

In  the  Court  of  Appeals  of  Kentucky,  Winter  Term,  1855. 

Hon.  Thomas  A.  Marshall,  C/iie/JMsijce. 
"     B.  M.  Ckenshaw, 
"     Jamks  Simpson,     I  Judges. 
"      Hexry  J.  Stites, 

To  authorize  an  acquittal  on  tlic  ground  of  insanity,  the  Jury  must  be  satisfied  that  the 
accused  was  insane. 

Appeal  from  McCracken  Circuit  Court. 

0.  Turner  and  L.  S.  Trimble,  for  appellant ;  James  Harlan,  Attorney- 
General,  for  the  Commonwealth. 


r.  People, 
ase. 


1  lOInd.  170;  and  also  in  Stevens  f.  State,  =  State  v.  Xash,  7  Iowa,  347;    State  v. 

31  Ind.  485.    See,  also.  People  v.  Garbutt,  17      Ostrander,  18  Id.  436. 

Mich.  9. 


374 


TIIK    UUIJDKX    OF    TUOOF    OF    INSANITY. 


Grahain  v.  Cominoiiwoalth, 


Stites,  J.,  delivered  the  opinion  of  the  court. 

At  the  November  term,  18;")o,  of  the  McCraeken  Circuit  Court,  John 
Graham  was  tried  and  convicted  of  the  murder  of  his  wife. 

Tlie  defence  relied  on  by  the  prisoner  Avas  insanity  at  the  time  of  tlic 
commission  of  the  act,  and  some  evidence  was  introduced  in  8Ui)p()ii 
of  that  defence.  After  the  evidence  was  ck)sed,  the  prisoner's  counssel 
moved  the  follo\ving  instruction:  "-That,  if  the  jury  believed  from  tlu 
evidence  that  there  was  a  rational  doubt  growing  out  of  the  evidence, 
as  to  whether  Graham  was  insane  or  non  comiios  mentis  at  the  tinir 
of  committing  the  homicide,  then  they  shouhl  give  the  prisoner  the 
benefit  of  that  doubt  and  acquit  him." 

This  instruction  was  refused,  and  an  exception  taken  by  the  pris- 
oner's counsel,  who  then  moved  the  court  to  instruct  the  jury  upon  the 
whole  law  of  the  case ;  and  tliereupon  the  court  gave  the  following 
instructions :  — 

"  1st.  The  court  instruct  the  jury  that  if  they  believe  from  the  evi- 
dence that  Graham  killed  the  deceased,  they  must  find  him  guilty  of 
murder,  unless  they  believe  from  the  evidence  that  at  the  time  he  did 
the  act  he  was  laboring  under  insanity  of  mind. 

"2nd.  That  if  they  believe  from  the  evidence  Graham  did  kill  hi^ 
wife,  and  that  he  was  laboring  under  insanity  on  the  subject  of  love 
and  jealous}',  yet  if  the}'  believe  from  the  evidence  he  had  sufficient 
reason  to  know  that  he  was  doing  wrong  and  would  be  liable  to  pini- 
ishment,  and  that  he  had  sufficient  power  to  control  his  actions  and 
refrain  from  killing  her,  the  law  is  against  him,  and  they  must  find  him 
guilty. 

"  ;ird.  The  court  instruct  the  jury  that  the  law  presumes  every 
man  to  be  sane  until  the  contrarj'  is  shown  by  the  evidence.  A\u\ 
before  the  prisoner  can  be  excused  for  killing  the  deceased  on  the  pica 
of  insanity,  the  jury  must  be  satisfied  from  the  evidence  that  the 
accused  was  laboring  under  such  a  defect  of  reason  as  not  to  know 
the  nature  and  qualit}'^  of  murder ;  or  if  he  did  know  it,  that  he  did  not 
know  to  commit  murder  was  wrong. 

"  4th.  That  the  true  test  of  responsibility  is  whether  the  accused  liad 
sutficient  reason  to  know  right  from  ivrony,  and  whether  or  not  he  had 
a  sufficient  power  of  control  to  govern  his  actions.  That  if  they  should 
believe  from  the  evidence  he  was  a  monomaniac,  yet  if  the}'  should 
believe  from  the  evidence  he  knew  it  was  wrong  to  kill,  and  had  suffi- 
cient power  of  control  to  govern  his  actions,  and  to  refrain  from  com- 
mitting the  homicide,  then  the  law  is  against  him,  and  they  must  find 
him  guilty. 


GUAIIAM    V.  COMMONWEALTH. 


37J 


Instructions  of  thu  Court. 


"  5th.  That  if  they  had  a  rational  doubt  as  to  whether  said  case  is 
murder  or  manslaughter,  they  must  find  him  guilty  of  the  latter,  as  the 
It'sser  offence;  and  if  they  have  such  rational  doubt  as  to  his  guilt  or 
innocence,  they  must  acquit  him. 

"  Gth.  That  a  rational  doubt  is  one  growing  out  of  the  evidence,  and 
not  a  mere  chimera  existing  in  the  juror's  mind;  and  to  acquit  on 
mere  light  and  trivial  doubts  existing  in  the  juror's  mind,  and  not 
growing  out  of  the  evidence,  tends  to  the  encouragement  of  male- 
factors, is  detrimental  to  the  best  interests  of  society,  and  a  virtual 
violation  of  the  juror's  oath." 

And  after  the  instructions  were  read  ever  to  the  jury,  the  court 
in({nired  if  there  was  any  other  point  upon  which  an  instruction  was 
desired,  and  none  was  requested ;  but  an  exception  was  taken  to  each 
of  the  foregoing.  The  jury  having  found  the  prisoner  guilty,  and  the 
Circuit  Court  having  refused  a  new  trial,  he  has  brought  the  case  up 
l»y  appeal. 

The  only  question  for  consideration  presented  by  the  record  is  the 
propriety  of  the  refusal  of  the  instruction  asked  for  by  the  prisoner, 
and  granting  of  others  in  lieu  thereof. 

It  is  earnestly  contended  in  behalf  of  the  appellant,  and  that  is  the 
main  ground  relied  on  for  reversal,  that  the  humane  principle  adopted 
in  favor  of  life,  which  forbids  a  conviction  whilst  there  is  a  rational 
doubt  of  guilt,  has  been  violated  in  this  case  by  withholding  from  the 
jury  the  instruction  asked  for,  and  telling  them,  in  the  third  instruction 
granted,  that  before  they  could  acquit  upon  the  ground  of  insanity, 
they  must  be  satisfied  that  the  accused  was  insane  when  he  committed 
the  homicide. 

The  importance  of  the  case  to  the  appellant  has  induced  a  thorough 
examination  of  the  authorities  within  our  reach  bearing  upon  the  ques- 
tion, and  after  full  consideration  we  feel  convinced,  from  the  unbroken 
current  of  adjudications  upon  the  subject,  as  well  as  from  the  reason 
of  the  rule,  that  it  has  not  been  impinged  upon,  and  that  no  error  was 
committed  by  the  Circuit  Court  of  which  the  appellant  can  justly  com- 
plain. 

The  rule  in  question  is  founded  upon  the  benign  presumption  of  law 
in  favor  of  innocence  until  the  contrary  is  satisfactorily  established,  a 
presumption  which  continues  in  force  in  behalf  of  the  accused,  and  re- 
mains his  shield  and  protection  as  long  as  a  rational  doubt  exists  as  to 
liis  guilt.  To  the  benefit  of  this  presumption  he  is  always  entitled,  and 
it  has  been  extended  to  the  prisoner  in  this  case,  for  the  jury  are  told  in 


37G 


THE    BURDEN   OF   PROOF   OF   INSANITlf. 


Graham  v.  Commonwealth. 


the  fiftli  instruction  that  "  if  the}'  have  such  rational  doubt  as  to  liis 
guilt  or  innocence,  they  must  acquit  him." 

This  presumption  of  the  law  in  favor  of  innocence  is  alike  essentia! 
to  the  safety  of  the  individual  citizen  and  the  security  of  society,  and 
is  universally  recognized  in  all  criminal  and  penal  cases.  But  there  an^ 
other  legal  presumptions  alike  important,  and  indispensable  to  the  well- 
being  and  safety  of  society,  and  as  necessarj'  in  their  application  in 
criminal  cases.  Among  these  is  the  presumption  of  sanity.  Every 
man  is  presumed  to  be  sane,  and  accountable  as  such,  for  the  commis- 
sion of  crime.  This  i)resumption  is  as  necessary  and  universal  in  its 
application  in  criminal  cases  as  the  presumption  of  innocence.  Tlic^ 
same  amount  of  proof  is  recpiired  to  rel)ut  the  one  as  the  other.  And 
when,  as  here,  a  party  has  committed  a  homicide  and  endeavors  to  shield 
himself  from  the  consequences  of  his  act  by  a  i)lea  of  insanity,  the  law 
demands  of  him  such  evidence  in  support  of  that  defence  as  will  satis/;/ 
the  jury  that  when  he  committed  the  act  he  was  insane,  and,  as  an  in- 
sane being,  not  responsible  for  his  acts. 

This  rule  is  foinided  in  wise  policy,  and  is  obviously  necessary  for  the 
protection  of  society,  as  much  so  as  that  which  requires  satisfactory 
evidence  to  rebut  the  presumption  of  innocence.  Besides  the  character 
of  the  presumption,  its  necessary  operation  in  almost  every  transaction 
of  life,  and  its  almost  universal  application  in  civil  as  well  as  criminal 
cases,  there  are  other  cogent  reasons  for  this  I'cquisition  of  clear  and 
satisfactory  evidence  in  support  of  a  defence  in  criminal  cases  grounded 
alone  upon  insanity.  In  ordinary  defences,  such  as  self-defence,  want 
of  malice,  sudden  heat  and  passion,  etc.,  when  by  reason  of  the  killing 
the  burthen  of  proof  rests  upon  the  accused  to  rebut  the  legal  pre- 
sumption of  malice,  the  facts  relied  on  are  usually  a  part  of  the  trans- 
action, or  so  directly  connected  with  it,  and  so  simple  and  few,  that 
they  are  readily  comprehended  and  appreciated  by  a  jury,  and  no  jury 
will  convict  in  such  cases,  whilst  a  rational  doubt  is  entertained  as  to 
the  reality  and  merit  of  the  defence  relied  on,  notwithstanding  the  bur- 
then of  proof  may  be,  by  legal  presumptions,  cast  upon  the  accused. 

But  the  plea  of  insanity  is  peculiarly  liable  to  abuse.  It  can  be  so 
easily  concocted,  and  facts,  admissible  as  evidence  in  its  support,  so 
readily  manufactured  by  the  accused.  The  latitude  of  inquiry  in  such 
cases  is  almost  boundless.  It  does  not,  as  other  defences,  depend  upon 
the  proof  of  facts  comprehensible  to  ordinary  minds,  and  connected 
remotely  or  immediately  with  the  transaction  under  investigation,  but 
in  its  support  facts  having  no  connection  with  the  transaction,  only  so 


SATisFAc  roirv  kvidexci:  of  insanity  UEginjED. 


377 


lU'llinghiun  and  McNughten's  Ca.scs. 


far  as  they  may  tend  to  sliow  gi'iieral  or  previous  iiisaiiit}'  of  the  ac» 
riisi'd,  but  happoiiing  long  anterior  to  the  commission  of  the  offence  for 
nhifh  he  was  tried,  and  tlie  opinions  of  learned  and  seientific  men  upon 
such  facts,  are  admissible  as  evidence.  It  not  iinfrefiuently  occurs  tiiat 
this  plea  is  resorted  to  as  a  last  extremity,  with  a  view  of  introducing 
under  the  latitudinous  range  of  inquiry,  a  multitude  of  facts  and  opin- 
ions not  directly  relevant,  hut  strictly  admissible,  to  produce  confusion 
aiul  doubt  in  the  mind  of  jurors,  and  interpose  thereby  ol)stacles  to  the 
attainment  of  just  verdicts.  The  only  safe  rule  in  such  cases  is  to  re- 
(|uire  in  support  of  such  deienoe  satlsfdctory  evidence  that  at  the  titnc 
of  the  commission  of  the  act  the  party  accused  was  insane.  Less  thau 
that  ought  not  to  sutflce,  nor  with  less  is  the  law  content. 

This  i)rinciple  has  been  recognized  in  England  and  America,  in  most 
of  the  leading  cases,  since  the  time  of  Sir  Matthew  Hale. 

On  the  trial  of  Bellinyham  for  the  murder  of  IVIr.  Percival,  where  the 
defence  relied  on  was  insanity,  Lord  Mansfield  said :  "  The  law  in  such 
eases  is  extremely  clear.  If  a  man  is  deprived  of  all  power  of  reason- 
ing so  as  not  to  distinguish  whether  it  was  right  or  wrong  to  commit  the 
most  wicked  or  the  most  innocent  transaction,  he  could  not  certainly 
commit  an  act  against  the  law.  Such  a  man,  so  destitute  of  all  power 
of  reasoning,  could  have  no  intention  at  all.  In  order,  however,  to  sup- 
port this  defence,  it  ought  to  be  proved  by  the  most  distinct  and  lUKpies- 
tionable  evidence  that  the  criminal  was  incapable  of  judging  between 
right  and  wrong."  ^  The  rule  seems  to  have  been  approved  by  all  the 
English  judges  as  late  as  1843. 

The  acquittal  of  McNughten  for  the  muider  of  Mr.  Drummond,  on 
the  ground  of  insanity,  gave  ristj  to  an  animated  discussion  in  the  House 
of  Lords,  who  ordered  various  interrogatories  to  be  put  to  the  judges  a* 
to  the  law  arising  on  the  plea  of  insanity  in  criminal  cases,  and,  among 
otliers,  the  following :  "  In  what  terms  ought  the  question  to  be  sub- 
mitted to  the  jury  as  to  the  prisoner's  state  of  mind  at  the  t me  the  act 
was  committed?  "  To  this  they  reply:  "  We  have  to  submit  our  opin- 
ion to  be,  that  in  all  cases  the  jury  ought  to  be  told  that  every  man  is 
presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be 
responsible  for  his  acts,  luitil  the  contrary  be  proved  to  their  satisfac- 
tion ;  and  that,  to  establish  a  defence  upon  the  ground  of  insanit}',  it 
must  be  clearly  proved  that,  at  the  time  of  committing  the  act,  the 
piirty  accused  was  laboring  under  such  a  defect  of  reason  from  dis- 
ease of  the  mind  as  not  to  know  the  nature  and  quality  of  the  act. 


Winslow  on  Plea  of  Insanity,  Law  Library,  vol.  42,  p.  1. 


378 


THK    IJUUUKN    OF    I'UOOF    OF    INSANITY, 


(inihitiii  r.  (.'oiiiiiionwc-iilth. 


ho  w.as  (loinji; ;  or  if  he  did  Iviiow,  he  did  not  Iviiow  that  lie  was  doin<j 


wrong. 


Jn  MassaciujHctts,  on  the  trial  of  Boffcrs  for  murder,  tlie  plea  of  in- 
sanity was  set  up.  It  was  held  by  the  Supreme  Court  that  insanil  '  "'ii^ 
in  the  nature  of  confession  and  avoidance,  nuist  be  satisfactorily  ^wn 
to  entitle  the  jury  to  aeipiit  on  that  ground.- 

In  New  Jersey  it  was  hohlen  by  tlie  Supreme  Court  in  Spencer's  Cc.s* 
''  that  the  evidence  of  the  prisoner's  insanity  at  tlie  time  of  the  ai  i 
ougiit  to  be  clear  and  satisfactory,"  and  tlie  chief  justice,  in  deliveriiii; 
the  opinion  of  court,  said :  "  The  proof  of  insanity  at  the  time  of  com- 
mitting the  act  ought  to  be  as  clear  and  satisfactory  in  order  to  acqiui 
him  on  the  ground  of  insanity,  as  the  proof  of  committing  the  act 
ought  to  be  to  find  a  sane  man  guilty."  ■' 

This  principle  of  requiring  clear  and  satisfactor}'  evidence  in  support 
of  the  defence  of  insanity,  thus  appears  to  be  recognized  and  adopted 
in  England  and  this  country,  and  not  to  have  been  regarded  as  conflict- 
ing with  the  principle  which  deems  every  man  innocent  until  the  co  'rarv 
is  shown  beyond  a  rational  doubt.     It  is  based  upon  the  legal  ai  vi- 

ously  necessary  presumption  of  sanity;  and,  in  our  opinion,  it ..  ifc 
rule,  founded  in  reason  and  good  policy,  sanctioned  by  experience  and 
authority,  and  should  not  be  departed  from. 

We  arc  of  opinion,  therefore,  that  the  Circuit  Court  did  not  err  to 
appellant's  prejudice  in  refusing  the  instruction  asked,  and  in  grantin<f 
the  third  instruction.  Without  noticing  in  detail  the  other  instructions. 
we  deem  it  sufficient  to  say  that  they  are  as  favorable  to  appellant  as  the 
law  of  the  case  permitted,  and  that  no  error  was  committed  to  his  pre- 
judice in  granting  them. 

With  the  facts  of  the  case  we  have  nothing  to  do.  The  j'lrisdiction 
of  this  court  is  limited  in  such  cases  to  questions  of  law  arising  ami 
saved  by  exceptions  during  the  progress  of  the  case.  Beyond  that  it 
does  not  reach. 

There  being,  then,  in  our  opinion,  no  error  in  the  record  to  the  aiipol- 

lant's  prejudice,  the  judgment  of  the  Circuit  Court  cannot  be  disturbetl. 

but  must  stand. 

Wherefore,  the  judgment  ia  affirmed. 


HI 


>  10  Cl.  &  F.  200;  1  C.  &  K.  130;  8  Scott 
N.  R.  595. 


2  Com.  V.  Rogers .  7  Mete.  500. 
>  21  N.  J.  (L.)  196. 


KUIKL    V.  ('O.MMON'UKALTIl. 


37!) 


3  was   (loill'r 

ploa  of  in- 
aiiit  '  ■<iiiu 
aril,       .wii 

ncer's  Case 
of  the  art 

I  (loliveriiiu 
mo  of  c'oin- 
'  to  acqiiii 
Hi,'  the  act 

in  support 
cl  adoptdl 
as  eonllict- 
e  CO  *ran 
[  ai  vi- 

it ..  i/(. 
'ience  and 

not  err  to 

II  grantin<f 
itructions. 
!ant  as  the 
0  his  pre- 

irisdiction 
ising  ami 
nd  that  it 

ihe  appol- 
listurbed, 

firmed. 


Syllabus  ami  Iii.striictlutiN. 


BURDEN  OFrUOOF  — niESUMl'TION  OF  SANITY—  MORAL  INSANITY  - 

1)  RUN  KKN  NESS. 

KkIEL  V.  Co3I.MOX WEALTH. 

[5  Bush,  3(i3.] 
In  the  Court  of  Appeals  of  \''-.>tucky,  Summer  Term,  1809. 

lion.  RuFus  K.  Williams,  Chief  Justice, 
"     Qeouok  Rohkutson,    j 
"      MoKDix'Ai  R.  H.vuDi.v,  \-,Tadijes. 
"     Belvauu  J.  Pktkus,      J 

1.  The  lefiral  presumption  of  sanity  imisi  bo  rebutted  by  satisfactory  evidence.    A  doubt 

ni  i,.nilris  not  sulHcieiU  to  Jusiil'y  an  acciuitlal ;  for  the  presumption  of  sanity  must  bo 
ovcicoino  by  a  preponderance  of  evidence. 

2.  Mental  or  moral  insanity,  howeverrecent,  to  such  an  .  xlent  as  to  destroy  free  agency 

and  moral  responsibility,  on  beinjj  established  by  sati.sfactory  evidence  will  excuse. 

3.  Drunkenness,  from  social  hilarity  is  no  excuse  for  crime. 

Ai'PKAL  from  Jefferson  Circuit  Court. 

Ifm.  L.  Jackson  and  Selby  Harney,  for  appellant. 

John  Rodman,  Attorney-General,  for  appellee. 

Chief  Justice  Williams  delivered  the  opinion  of  the  court. 

Wm.  Kriel  having  been  indicted,  tried  and  found  guilty  of  the  mur- 
dei-  of  his  wife,  has  appealed  to  this  court  for  a  reversal  of  the  judg- 
ment and  sentence  of  death.  His  only  defence  was  that  of  insanity, 
pi'oduced  from  habits  of  dissipation  and  excessive  drinking  of  ardent 
spirits.  The  following  instructions  were  give  to  the  jury  at  the  instance 
of  the  plaintiff  and  defendant,  and  by  the  court  of  its  own  accord. 

For  the  Commonwealth :  — 

1.  "  Felonious  homicide  may  be  either  murder  or  manslaughter. 

2.  "Murder  is  the  killing  of  a  human  being  by  another  with  malice 
aforethought. 

3.  "Malice,  in  its  legal  sense,  denotes  a  wrongful  act  done  inten- 
tionally without  just  cause. 

4.  "  Malice  is  implied  by  the  law  from  any  deliberate  cruel  act 
committed  by  one  person  against  another,  however  suddenl}'  done. 

5.  "If  homicide  be  committed  by  the  use  of  a  deadly  weapon  in  the 
previous  possession  of  the  person  slaying,  the  law  implies  that  the  act 
was  done  with  malice. 

6.  "  By  the  term  aforethought  is  meant  a  predetermination  to  kill, 
however  sudden,  or  recently  formed  in  the  mind  before  killing. 


8ttO 


THE    liUUDEN    OF    I'UOOF   OF    INSANITY 


Kricl  V.  Coiuiuonwealth. 


7.  ''  Before  the  jury  can  acquit  Kricl  on  the  ground  of  insanity 
from  (leliriuiu  tremens  (if  they  believe  all  the  evidence,  beyond  a  rea- 
sonable doubt,  that  he  did  the  killing  with  a  deadly  weapon  andwithoul 
provocation),  they  should  be  satislied,  from  the  whole  of  the  testiinoii\ 
taken  together,  that  he  was  laboring  under  a  fit  of  delirium  trenuiis  m 
the  time  he  shot;  and  the  jury  cannot  presume  its  existenci',  at  llic 
time  t»f  the  killing,  from  proof  of  antecedent  fits,  from  which  hv 
recovered. 

8.  ''In  order  to  ac(iuit  tiie  i)risoner,  Wm.  Kriel,  on  the  ground  of 
insanity  (if  the  jury  are  satisfied,  to  the  exclusion  of  a  reasonable 
doubt,  that  he  killed  Margaret  Kriel,  his  wife,  with  a  deadly  weapon, 
and  without  any  provocation),  they  should  bcr^atisliod  that  the  evidence, 
all  considereil  together,  preponderates  towards  establishing  the  fu'l, 
that  he  was  at  the  time  he  killed  ]Margarct  Kriel,  his  wife,  deprived  of 
the  force  and  natural  agency  of  his  mind,  and  that  his  moral  and  intv'l- 
lectual  faculties  were  so  disordered  by  long  contimied  indulgence  in 
intoxicating  liciuors  as  to  induce  mental  disease,  and  to  deprive  his 
mind  of  its  controlling  and  directing  power,  and  that  .ic  did  not  have, 
at  the  time,  sullicient  power  to  govern  his  actions^ 

9.  "  If  the  jury  believe,  beyond  a  reasonable  doubt  from  all  the 
evidence  in  this  case,  that  the  accused  is  guilty  of  the  crime  charged  iu 
the  indictment,  they  should  find  him  guilty." 

For  the  defendant :  — 

1.  "  The  crime  of  nuu'der  is  the  killing  of  a  human  being  within  tlie 
peace  of  *be  Connnonwealth  of  Kentucky,  by  a  person  of  sound  mind 
and  discretion,  with  malice  aforethought. 

2.  "If  the  jury  have  a  reasonable  doubt  as  to  any  material  fact,  thev 
must  ac(iuit. 

3.  ''If  the  jury  believe  that,  at  the  time  of  the  alleged  killing,  the 
accused  was  a  person  of  unsound  mind,  they  must  acquit. 

4.  "If  the  jury  have  a  reasonalile  doubt  as  to  the  sanity  of  the 
accused,  at  the  time  of  the  alleged  killing,  they  must  acquit  him ;  and 
it  is  immaterial  how  that  insanity  was  superinduced. 

5.  ''  That  to  convict  the  accused,  the  jury  must  be  satisfied,  from  all 
the  evidence,  beyond  a  reasonable  doubt,  that  he  shot  his  wife  deliber- 
ately and  maliciously,  with  intent  to  kill  her,  and  at  that  time  he  was  :i 
man  of  sound  memory  and  discretion." 

By  the  court :  — 

"  If  the  jury  should  find  the  defendant  not  guilty,  and  they  acquit 
him  on  the  ground  of  insanity,  thev  must  state  that  fact  in  the  verdict." 


i;'.t< 


KlUEL   V.  COMMONWEALTH. 


381 


Instructions  as  to  Insanity, 


»f  insanity 
'ond  a  rta- 
nd  wi(li(jnt 

lestinu)n\ 
ircnu'iis  at 
lev,  at,  the 

which  he 

ground  of 
I'casoiiablc 
r  Weapon, 
evidciico, 
the  fa-l, 
iprivcd  of 
and  intv'l- 
ilji'ence  in 
.'pnve  liis 
not  have, 

tn  all  tho 
liarged  in 


athin  tiio 
iind  mind 

lU't,  Ihov 

ling,  tlie 

y  of  the 
lim ;  and 

from  all 
!  delibor- 
he  was  a 


y  acquit 
erdict." 


On  application  of  the  jury,  after  they  had  retired,  and  being  brought 
i;<to  court  in  the  presence  of  both  parties:  — 

"The  jury  being  l)rouglit  into  court  for  an  explaffation  as  to  what 
seems  to  them  to  be  a  conflict  between  the  fourth  instruction  aiven 
for  the  defendant,  and  the  seventh  instruction  given  for  the  Com- 
nionwealth,  the  court  instructs  them  thereon,  as  follows:  'The  two 
instructions  taken  and  considered  togeth.er,  meant,  that  if  the  jury  have 
a  reasonable  d  ubt  as  to  whether  the  accused  was  of  sound  mind  when 
he  did  the  killing,  they  must  acquit  him,  and  it  is  immaterial  from  what 
cause  his  unsoundness  of  mind  may  have  arisen  ;  but  they  cannot 
!ic(iuit  him  on  the  ground  of  unsoundness  of  mind  arising  from  delirium 
tremens,  unless  they  believe,  from  all  the  evidence,  he  labored  under 
unsoundness  of  mind  at  the  time  of  the  killing;  and  they  cannot  pre- 
s!  .  .  -  such  unsoundness  of  mind  fnmi  the  mere  fact  that  he  had 
previously  had  an  attack  of  delirium  tremens,  from  which  he  had 
recovered.  If  tUay  have  a  reasonable  doubt  of  his  soundness  of  mind 
at  the  time  of  the  killing  —  it  matters  not  ))y  what  cause  the  unsound- 
ness of  mind  may  have  been  produced  ;  but  the  fact  of  his  previously 
having  had  an  attack  of  delirium  tremens  from  which  he  had  recovered, 
is  not,  of  itself,  sufficient  evidence  of  unsoundness  of  mind  at  the  time 
of  the  killing ;  it  is  a  fact,  however,  to  be  considered  bj-  them  in  weigh- 
ing the  otlier  testimony  bearing  on  the  condition  of  his  mind  at  the  time 
of  the  killing. 

"'The  jury  also  inquired  whether,  in  making  their  verdict,  they 
sliould  confine  themselves  strictly  to  the  evidence  and  instruction  of  the 
court.  They  are  instructed  that  they  are  to  consider  nothing  as  evi- 
dence except  what  was  proved  before  them  in  court ;  and  the  instruc- 
tion given  by  the  court  are  the  law  of  this  case ;  they  are,  however,  to 
give  due  consideration  to  the  arguments  of  counsel,  so  far  as  the  argu- 
ments seem  sound  and  assisting  to  them  at  arriving  at  correct  conclu- 
sions from  the  law  and  evidence.  If,  however,  the  jury  believe,  from 
the  evidence,  to  the  exclusion  of  a  rational  doubt,  that  the  accused  was 
of  sound  mind,  and  killed  the  deceased,  but  did  so  without  malice  afore- 
thought, they  should  find  him  guilty  of  manslaughter,  and  fix  iu  their 
verdict  the  period  of  his  confinement  in  the  penitentiar}'  at  not  less  than 
two  nor  more  than  ten  years.'  " 

Under  the  provisions  of  our  criminal  code  we  have  no  jurisdiction  to 
reverse  on  the  evidence,  for  as  to  this  the  verdict  of  the  jury  and  judg- 
ment of  the  court  are  conclusive ;  but  our  jurisdiction  is  confined  to 
the  corrections  of  errors  of  law,  and,  therefore,  we  can  onlvlook  into 


382 


THE    BURDEN    OF   TROOF   OF    INSANITY. 


Kriel  v.  Coininouwoalth. 


the  facts  to  ilcterinine  as  to  the  proper  application  of  the  legal  rules 
thereto. 

Without  a  rehearsal  of  the  various  facts  developed  in  this  case,  to 
some  extent  conflicting  in  their  nature,  it  is  sufHcient  to  say  that  the 
evidence  would  have  justified  the  jury  in  finding,  either  that  the  defend- 
ant was  sober  and  of  sound  mind  at  the  time  of  the  homicide,  or  that 
he  was  intoxicated,  and  to  some  extent  at  least,  irrational,  as  they 
might  most  credit  the  statements  of  the  witnesses  of  the  respective  par- 
ties, or  give  more  importance  to  the  facts  detailed  by  them. 

It  appears  that  Mrs.  Kriel  was  a  woman  of  feeble  health,  delicate  and 
fragile  ;  that  she  had  taken  her  clothes  to  the  house  of  her  sister,  resid- 
ing in  the  same  city  (Louisville)  with  her,  intending  to  go  to  the 
country,  and  that  her  mother,  sister,  and  herself,  wyre  still  at  the  dinner 
table  when  the  accused  came  in  and  asked  her  relative  to  her  taking  her 
clothes  away ;  when  she  substantially  replied  she  was  going  to  the 
counti'y,  as  the  doctor  had  advised  her  she  must  do  for  her  healtli. 
The  defendant  immediately  addressed  her  sister,  and  asked  what  she 
meant  by  saying,  "If  he  had  been  my  husband,  I  would  have  killed 
him  long  ago."  It  further  appears  from  this  sister's  evidence  tliat 
Iliiel  and  wife  had  before  divided  their  property,  by  the  advice  of  their 
Counsel.  Immediately  after  this  address  by  Kriel  to  his  wife's  sister 
she  went  up  stairs,  and  Kriel,  with  violence,  choked  his  wife  until  she 
fell  prostrate  and  apparently  dead,  when  her  mother  gathered  her  u[) 
into  her  lap  ;  then  stooping  over  her,  he  pulled  from  his  pocket  a  pistol, 
and  shot  her  through  the  head.  She  never  spoke,  but  expired  imme- 
diately. 

The  sister  hearing  the  confusion  below,  and  supposing  Mrs.  Kriel  h.ad 
fainted,  with  a  pan  of  water  was  returning  to  the  lower  room,  when 
Kriel,  immediatel}'  upon  her  appearance  in  sight,  shot  at,  but  missed 
iier.  He  then  put  his  pistol  to  his  own  head,  shot  once  or  twice,  the 
balls  how  Dver  lodging  in  the  scalp,  without  fracturing  the  skull,  and 
then  immediately  ran,  when  the  crowd  attracted  by  the  alarm,  and  some 
[)olicemen,  chased  him  some  half  mile.  When  they  came  up  with  him, 
he  was  on  his  knees  and  hands  under  the  bank  of  a  small  branch,  as 
though  he  had  fallen  from  exhaustion  or  was  attempting  concealment. 
He  said  but  little  on  his  way  to  the  jail,  and  seen>ed  stupid  and  insen- 
sible for  some  two  or  more  da3's,  eating  but  little. 

Several  api)arently  credible  witnesses  attest  his  sober  appearance  the 
day  before,  and  down  to  nightfall,  and  then  the  next  day  down  to  within 
a  few  minutes  of  the  homicide,  between  twelve  o'clock  M.  and  ten  o'clock 
p.  M. 


SANITY    18    PRESUMED. 


383 


And  nmst  bu  Rebutted  by  Stitislactory  Evidence. 


egal  rules 

is  case,  to 
y  that  the 
le  dcfend- 
le,  or  that 
1,  as  they 
sctive  par- 

licate  and 
ler,  rcsid- 

0  to  the 
he  dinner 
aking  hor 
g  to  the 
^'r  liealtli. 
wliat  she 
ve  killed 
eiice  that 
3  of  their 
e's  sistei" 
until  slie 

1  her  up 
a  pistol. 

d  Imme- 

u'iel  had 
m,  when 
t  missed 
vice,  the 
mil,  and 
nd  some 
ith  him, 
anch,  as 
jalment. 
d  inseu- 

mce  the 

3  -within 

o'clock 


The  physicians  testified  that  the  subsequent  stupor  may  have  heen  the 
effect  of  excessive  drinking,  or  of  the  concussion  of  braiu  from  the 
shots  in  his  scalp,  or  from  the  exhaustion  resulting  from  his  long  chase. 

The  circumstances  sufficiently  attest  that  Kriel  and  wife  had  recently 
had  disturbances  ;  had  divided  their  property,  and  that  she  had  taken 
her  clothes  to  the  house  of  her  sister,  to  which  place  he  had  followed 
her,  armed  with  a  deadly  weapon,  and  that  without  any  sudden  provoca- 
tion, or  even  irritating  language  on  her  part,  he  assaulted,  shot,  and 
liilled  her. 

The  rules  of  criminal  law,  especially  as  applicable  to  these  facts,  are 
few  and  simple,  being  founded  in  wisdom  and  experience,  with  a  due 
regard  to  the  protection  of  life  and  the  preservation  of  society,  yet 
humane  and  indulgent  to  the  passions  and  frailties  of  human  nature  and 
the  infirmities  of  the  mind,  when  diseased  and  irrational  from  mental 
or  moral  insanity.  It  is  universally  written,  by  all  authors  on  criminal 
law,  that  sanity  is  to  be  presumed  ;  and  this  doctrine  has  always  been 
upheld  by  this  court,  especially  in  the  two  leading  cases  of  Graham  v. 
Commoinvealth^  and  Smith  v.  Commonv:ealth.^  Therefore,  when  the 
State  makes  out  an  unlawful  homicide  with  a  deadly  weapon,  and  iden- 
tiflos  the  accused  as  the  perpetrator,  it  has  shown  all  that  is  essential  to 
conviction. 

Necessary  self-defence,  or  misadventure,  or  insanity,  moral  or  men- 
tal, as  an  excuse,  comes  as  a  defence  ;  and  whilst  irresponsibility  because 
of  insanity  need  not  be  shown  beyond  a  rational  doubt,  yet  as  sanity  is 
always  presumed  by  law,  this  universal  legal  presumption  must  be 
rebutted  by  stitisfactory  evidence ;  that  is,  the  jury  must  be  satisfied 
from  the  evidence,  whether  produced  by  the  one  side  or  the  other,  that 
the  perpetrator  of  a  homicide  not  in  necessary  self-defence,  nor  by 
mere  unintentional  accident,  was  irresponsibly  insane  when  the  deed 
w.is  perpetrated ;  for  evidence,  merely  raising  a  doubt  as  to  mental 
soundness,  would  not  be  sufficient  to  repel  the  legal  presumption  of 
sanoness  ;  as  this  would  be  repelling  a  legal  presumption  by  evidence 
raising  a  mere  duabt  or  suspicion  as  to  the  mental  condition. 

It  is  the  legal  duty,  therefore,  of  all  juries  to  convict  the  perpretra- 
tor  of  an  unjustifiable  and  prima  facie,  inexcusable  homicide,  unless 
the  evidence  rationally  convinces  them  that,  at  the  time  of  the  killing, 
the  perpetrator  was  laboring  under  such  a  state  of  mental  aberration 
and  disease  as  to  deprive  him  of  a  knowledge  of  right  and  wrong ;  or 
if  lie  knew  this,  still  to  take  from  him  the  moral  power  to  resist  his 
morbid  inclination  to  its  perpetration. 


1  20  B.  Mon.  5s7. 


1  Dnv.  224. 


384 


THE   BURDEN   OF   PROOF   OF   INSANITY. 


Kriel  r.  Commonwealth. 


A  mere  doubt  of  sanity,  however  rational,  is  wholly  insufficient  l<. 
rebut  this  legal  presumption,  and  can  never  be  a  justification  to  a  jury 
to  acquit ;  whilst  on  the  other  hand,  if  the  preponderating  evidence  con- 
vinces them  that  the  perpetrator  was  in  such  a  mentall}'  diseased  condi- 
tion as  to  destroy  his  free  agency,  they  should  not  convict  merely 
because  they  might  entertain  a  rational  doubt  as  to  this. 

The  rational  doubt  of  guilt,  so  humanely  entertained  by  the  criminal 
law  as  a  cause  of  acquittal,  has  never  been  extended  to  defences  of  ex- 
cuse because  of  mental  or  moral  insanit}' ;  but  after  the  State  has  made 
out  her  case,  with  the  legal  presumption  of  insanity  in  her  behalf,  this 
must  be  overcome  by  a  preponderance  in  the  prisoner's  behalf. 

A  rational  doubt  as  to  whether'a  homicide  had  been  committed,  or  as 
to  the  perpetrator,  should  very  x'ationally  lead  to  acquittal ;  because  the 
law  in  its  humanity  should  never  permit  a  human  being's  life  to  ])e  taken 
without  the  clearest  evidence  that  a  homicide  had  been  committed,  and 
that  the  accused  was  the  guilty  agent.  But  if  acquittal  should  result 
from  a  mere  doubt  of  sanity,  then  the  legal  presumption  of  mental 
soundness  would  amount  to  but  little,  if  anj-thing.  A  mere  doubt  of 
sanity  has  never  entered  as  an  element  into  that  rational  doubt  which 
should  produce  an  acquittal. 

If,  however,  there  be  mental  or  moral  insanity,  however  recent,  to 
such  an  extent  as  to  destroy  free  agency  and  moral  responsibility,  on 
being  established  by  satisfactory  evidence,  this  will  excuse  ;  because  the 
law,  in  its  enlightened  benignity,  will  not  punish  an  iirational  and 
irresponsible  being.  Malice  is  an  essential  ingredient  in  murder  ;  but 
this,  too,  is  to  be  presumed  from  the  violence  and  wantonness  of  the 
assault  and  character  of  the  weapon  used ;  hence  whence  sudden  pas- 
sion has  been  produced  from  reasonable  cause,  such  as  jostling,  personal 
violence  and  other  things,  this  has  been  deemed  by  the  law,  in  its 
humanity,  sufficient  to  repel  the  presumption  of  malice,  and  to  palliate 
the  offence  to  manslaughter ;  and  our  criminal  code  gives  the  prisoner 
the  benefit  of  a  rational  doubt,  as  to  which  grade  of  offence  has"  been 
committed. 

So  drunkenness  from  mere  social  hilarity,  though  wrong  in  the  per- 
petrator, may  be  of  such  a  character,  and  to  such  a  degree,  as  to  show 
that  the  mind  was  incapable  of  preconceived  malice  or  intentional  homi- 
cide, and  reduce  the  homicide  to  manslaughter ;  but  as  this  state  of 
mind  is  superinduced  by  the  wrongful  act  of  the  perpetrator,  a  due 
regard  for  the  interest  of  society,  and  the  personal  security  of  every 
one,  precludes  it  from  being  a  satisfactory  excuse,  and  an  entire 
exemption  from  punishment.     Indeed,  if  it  appeared  that  intoxication 


DRUNKENNESS    A    POOR  EXCUSE   FOR    CRIME. 


385 


Krlcl  V.  Coinmonwciilth. 


ifflcient  u< 
I  to  a  jury 
ience  con- 
sed  condi- 
et  merely 

e  criminal 

ces  of  ex- 

lias  madi^ 

ehalf,  this 

;ted,  or  as 
jcause  the 
)  be  taken 
itted,  and 
Lild  result 
)f  mental 
I  doubt  of 
abt  wliicli 

ecent,  to 
oility,  on 
cause  tlie 
onal  and 
der;  but 

38   of  till' 

Iden  pas- 
personal 

w,  in  its 

0  palliate 
prisoner 

ias'  been 

the  pcr- 
to  show 
lal  homi- 
statc  of 
If,  a  due 
of  every 
,n  entire 
)xication 


excited  the  animal  passions  and  aroused  a  destructive  propensity  in  tlie 
accused,  why  should  even  drunkenness,  in  such  a  case,  be  considered 
I'ven  a  mitigating  cause  any  more  than  the  unchaining  of  a  mad  dog  in 
the  streets  of  a  town,  or  the  riding  a  vicious  animal  into  a  crowd,  merely 
because  the  perpetrator  had  no  particular  malice  at  any  one,  or,  indeed, 
expected  death  at  all  to  ensue  ;  yet,  if  by  reason  thereof,  any  one  should 
lose  his  life,  this  recklessness  is  set  down  as  malice  toward  mankind  in 
general,  and  the  perpetrator  criminally  responsible  in  the  highest 
degi'ee  ?  But  it  is  not  essential  that  this  should  now  be  decided.  Excuse, 
because  of  drunkenness,  is  at  all  times  to  be  received  with  great  caution, 
and  because  so  easily  perverted,  and  the  danger  so  great  of  a  revenge, 
for  real  or  imaginary  cause  of  pre-existing  offence  or  malice,  under  such 
cover. 

And  these  are  the  true  and  essential  doctrines  as  expounded  in  the 
two  recited  cases  of  Graham  y.  Commonwealth,  and  Smith  v.  Common- 
wealth,  when  properly  understood  and  construed ;  for  they  are  conso- 
nant with  each  other  in  premises  and  principle,  but  somewhat  diverse  in 
argument;  yet  the  rules  of  law,  as  annoimced  by  this  court,  are 
identical.  None  of  these  wise  and  humane  rules  were  violated  in  the 
instructions  given  on  behalf  of  the  State,  but  were  essentially'  contravened 
in  those  given  in  defendant's  behalf,  and  at  the  court's  own  instance,  all 
of  which,  however,  were  greatly  calculated  to  benefit  him,  whilst  no 
possible  injury  could  result  to  him ;  for  under  these  instructions,  the 
jury  could  not  convict  him  at  all,  if  they  entertained  a  rational  doubt 
as  to  his  sanity ;  therefore,  the  finding  is  equivalent  to  saying  he  was 
sane  beyond  a  rational  doubt  when  the  offence  was  committed.  The 
case  of  Smith  recited,  was  upon  a  sudden  and  unexpected  broil;  theie- 
forc  the  court  said  the  instruction  as  to  the  presumption  of  malice  from 
the  possession  and  use  of  the  deadly  weapon,  without  reference  to  the 
other  circumstances,  or  explanation  of  its  possession,  was  misleading  in 
his  case.  But  here  the  husband  followed  tiie  wife  to  her  sister's  house, 
armed  with  a  deadly  weapon,  which  he  used  without  any  immediate 
exciting  cause  ;  and  he  does  not  attem[)t  to  account  for  its  possession  by 
showing  any  necessity  for  self-defence  or  other  reason.  The  instruc- 
tions Nos.  4  and  5,  given  in  this  case  in  behalf  of  the  Commonwealrh, 
Were  not,  therefore,  misleading,  but  a  true  exposition  of  the  legal 
prisumptions  from  the  facts. 

There    are  other  alleged   errors ;    but  on   close   scrutin\'  we   have 
failed  to  discover  any  such  to  defendant's  prejudice ;  and  as  the  circuit 
judge,  in  his  written  opinion  overruling  the  motion  for  a  new  trial, 
suiliciently  responded  to  them  we  shall  not  notice  them  in  detail. 
'2i 


386 


THE    BURDEN   OF   PROOF   OF   INSANITY. 


State  V.  Lawrence. 


The  name  of  the  ds-ceased  was  alleged  to  be  Barbara  Kriel,  the  wife 
of  the  defendant.  The  evidence  is  that  her  name  was  Margaret.  The 
name  is,  however,  but  descriptive,  and  when  the  person  killed  is  also 
properly  described  as  the  prisoner's  wife,  and  no  objection  to  tlio 
evidence  was  made  on  that  account,  and  no  motion  to  withdraw  it  from 
ttie  jury,  and  after  conviction  and  judgment,  we  cannot  suppose  the 
misdescription  of  the  given  name,  when  placed  in  juxtaposition  with 
the  further  description  that  she  was  his  wife,  could  have  misled  him,  or 
in  any  manner  have  prevented  him  from  a  fair  trial,  and  therefore 
furnish  no  reversible  grounds. 

Wherefore  being  satisfied  that  the  essential  errors  committed  in  this 
case  were  calculated  to  facilitate  the  finding  of  the  prisoner  either  not 
guilty  at  all,  or  for  manslaughter  only,  and  all  for  his  benefit,  and  when  the 
law  was  more  favorably  expounded  in  his  behalf  than  any  elementary 
writer  or  decision  of  this  court  authorized,  and  notwithstanding  which,  ho 
has  been  found  guilty  of  murder  in  the  first  degree,  we  cannot,  in  the 
legal  discharge  of  our  duty,  with  a  due  regard  to  the  security  of  society 
and  prevention  of  crime,  disturb  the  judgment. 

Therefore  it  is  affirmed. 


BURDEN  OF  PROOF  ON  PRISONER. 

State  v.  Lawrence. 

[57  Me.  674.] 

In  the  Supreme  Judicial  Court  of  Maine,  1870. 

Hon.  John  Appleton,  Chief  Justice. 

«'  Jonas  Cutting, 

"  Edward  Kent, 

"  Charles  W.  Walton, 

"  Jonathan  G.  Dickekson,  [J'^dges. 

"  William  G.  Barrows, 

"  Charles  Danforth, 

"  RuFUS  P.  Tapley, 

Burden  of  proof  on  defendant-  —  To  establish  the  defence  of  insanity,  the  burden  is  on 
the  defendant  to  prove  by  a  preponderance  of  evidence  that  at  the  time  of  committing 
the  act  he  was  laboring  under  such  a  defect  of  reason  from  disease  of  the  mind  as  not 
to  know  the  nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did,  that  he  did  not 
know  he  was  doing  ^vhat  was  wrong. 

Partial  Insanity,  if  not  to  the  extent  above  indicated,  will  not  excuse  a  criminal  act. 


STATE    V.    LAWRENCE. 


387 


The  Facts  of  the  Case. 


Indictment  for  murder. 

It  appeared,  on  the  part  of  the  government,  that  Elmira  Atwood  had 
been  living  at  the  house  of  one  Mrs.  Marsh,  on  Hammond  Street,  Ban- 
gor, some  four  weeks  prior  to  tlie  murder ;  that  the  defendant  Lawrence 
went  tliere  more  or  less;  that  on  Saturday,  January  1,  1870,  he  went 
tlicre  considerably  intoxicated,  conversed  with  Elmira  Atwood,  and 
called  her  by  an  opprobrious  epithet,  she  answering,  that  if  he  called 
her  that,  she  would  make  him  prove  it ;  whereupon  he  went  away  with- 
out any  reconciUation  taking  place  between  them  at  that  time  ;  that  on 
the  next  (Sunday)  evening,  he  went  there  again ;  that  he,  living  by 
himself  on  Main  Street,  and  Mrs.  Marsh  having  been  in  the  habit  of 
preparing  food  for  him,  handed  her  a  little  tin  pail,  and  requested  her 
to  put  up  some  hashed  fish ;  that  he  asked  Mrs.  Marsh  if  she  were 
alone ;  that  Mrs.  Atwood  had  gone  into  a  little  bedroom  ;  that  after 
Mrs.  Marsh  went  into  the  pantry,  Lawrence  went  into  the  bedroom, 
where  he  saw  Mrs.  Atwood  ;  that  Mrs.  Marsh  hoard  voices  talking,  but 
could  not  understand  what  was  then  said,  until  she  heard  Mrs.  Atwood 
say,  "  I  will,  I  will,  I  will,  John."  That  when  Mrs.  Marsh  came  out 
of  the  pantry,  she  saw  Mrs.  Atwood  coming  out  of  the  bedroom,  Law- 
rence having  already  come  out,  and  gone  across  the  kitchen,  facing  the 
door  as  if  going  out;  that  Mrs.  Atwood  said,  "Oh,  the  pistol!  the 
pistol!"  and  came  near  fainting;  that  Lawrence  turned  round,  drew 
out  his  pistol,  and  without  taking  any  more  aim  than  merely  raising  his 
arm  and  pointing  it  toward  Mrs.  Atwood,  fired  twice  ;  that  Mrs.  Atwood 
fell ;  that  Mrs.  Marsh  rushed  out  of  the  house,  and  heard  two  more 
pistol  shots,  at  least,  fired  after  she  went  out ;  and  that  Lawrence 
passed  Mrs.  Marsh,  going  out  of  the  house  as  she  returned.  It  also 
appeared  that  about  seven  o'clock  on  the  same  Sunday  evening,  Law- 
rence was  found  in  his  room,  on  Main  Street,  with  his  throat  cut ;  that 
he  still  had  a  knife  in  his  hand  ;  that  when  found,  his  first  words  were, 
"  Do  you  think  I  am  cut  enough  to  die?  "  "  Is  that  damned  whore 
dead?"  "I  hope  she  is.  If  she  is,  I  can  die  happy?"  It  also 
appeared  that  the  defendant  was  jealous  of  Mrs.  Atwood,  who,  he 
alleged,  had  agreed  to  marry  him,  and  then  went  with  other  men. 

The  defence  was  insanity,  and  considerable  testimony  tending  to 
show  the  condition  of  Lawrence  at  the  time  of  shooting  Mrs.  Atwood, 
and  before  and  afterwards,  was  introduced. 

The  presiding  judge,  inter  alia,  charged  the  jury  as  follows:  — 

"  Was  it  a  case  of  jealousy,  or  was  it  an  insane  delusion?  You  are 
to  determine  whether  insanity  of  any  kind  existed  at  the  time  of  the 


388 


THK    HUKDKN    OF    IMtOOF   OF    INSANITY, 


St:Ui'  r.  LawreiuH'. 


homicide.     If  it  is  not  established,  then  the  defence  of  insanity  fails. 
and  Ihe  case  stands  upon  the  facts. 

"If  you  find  a  general  or  partial  insanity,  then  what  is  the  ruU? 
If  you  take  the  monomania  upon  tiie  subject  of  the  woman,  as  he 
expresses  it,  'going  back  upon  him,'  if  there  was  an  insane  delusion 
upon  that  subject,  then  how  far  did  that  excuse  him  for  the  killin<r? 
Suppose  he  was  insanely  jealous,  it  would  not  necessarily  follow  that 
he  should  not  know  it  was  not  rhAit  for  hira  to  kill  her. 

"  But  if  it  is  shown  that  he  not  only  had  an  insane  delusion  on  that 
subject,  but  that  he  supposed  he  had  a  right  to  kill  her,  that  covers  the 
whole.  But  the  mere  fact  that  a  man  is  jealous  with  cause,  does  not 
justify  him  in  killing  a  woman,  if  she  is  his  lawful  wife.  So,  if  he  is 
insane  with  a  monomania,  he  is  not  justified  in  killing  her,  unless  it  is 
shown  that  he  had  a  faith  that  it  was  right  for  him  to  do  it,  and  hatl 
lost  all  sense  of  responsibility  for  it.  I  have  now  reached  the  point 
where  I  can  give  you  the  general  instructions  that  I  intended. 

"To  excuse  a  man  from  responsibility  on  the  ground  of  insanity,  it 
must  appear,  that  at  the  time  of  doing  the  act  he  had  not  capacity  and 
reason  sufficient  to  enable  him  to  distinguish  between  riirht  and  wronir 
as  to  tlie  particular  act  he  was  doing.  That  he  had  not  knowledirc. 
consciousness,  or  conscience  enough  to  know  that  the  act  he  is  doing  i> 
a  Avrong  act  and  a  criminal  act,  and  one  that  he  will  be  subject  or  liahle 
to  punishment  for  doing.  In  order  to  be  responsible,  he  must  have 
sufficient  mind  and  memory  to  understand  and  remember  the  relation  he 
stands  to  others,  and  others  to  him,  and  that  the  act  he  is  doing  is  con- 
trary to  the  plain  dictates  of  right,  wrongfully  injurious  to  others,  and 
a  violation  of  the  dictates  of  duty.  If  there  be  partial  derangement, 
or  insanity  of  mind,  so  that  it  is  not  in  all  respects  perfectly  sane  and 
sound,  yet  if  not  to  the  extent  above  indicated  it  will  not  excuse  a 
criminal  act.  In  other  words,  a  man  may  be  a  monomaniac,  his  mind 
may  be  disordered,  and  to  a  certain  extent,  it  may  be  proved  that  he  is 
of  unsound  mind,  and  yet,  if  he  has  mind  and  understanding  enougli 
an  1  is  not  carried  away  so  but  that  he  understands  the  difference  be- 
t  vecn  right  and  wrong  as  to  the  act  he  is  then  doing  —  that  is  to  say: 
if  the  man  knew  that  what  he  was  doing  was  vrong,  and  he  was  liable 
to  be  punished  for  it,  and  that  the  act  would  nc  >  be  excused,  then  he  is 
subject  to  punishment,  although  there  might  be  some  partial  derange- 
ment. 

"But  if  he  does  not  understand  the  relation  of  parties,  as,  for  in- 
stance, where  a  son  killed  his  father,  and  was  so  deranged  that  he  did 


INISANK    DELISIONS. 


389 


Illiistriitiuns. 


aiiity  fails. 

the  ruk? 
itin,  as  lie 
B  delusion 
lie  killiim? 
'ollow  that 

n  on  that 
covers  the 
,  does  not 
to,  if  he  is 
inless  it  is 
:,  and  had 
the  point 

isanity,  it 
)a(,'ity  and 
md  wrong 
iiowlcMlec 
s  doing  i> 
b  or  liable 
nust  have 
elation  he 
ig  is  con- 
hers,  and 
ngemenc, 
sane  and 
excuse  a 
his  mind 
that  he  is 
g  enougli 
ence  be- 
s  to  say : 
ms  liable 
hen  he  is 
derange- 

5,  for  in- 
i  he  did 


not  know  it  was  his  father,  he  could  not  be  responsible.  But  if  the 
party  feels  and  knows  tiuat  he  is  doing  wrong,  altiiough  ho  may  have 
wrought  himself  up  by  hatred  and  jealousy  to  a  determination  to  kill, 
yet  if  it  appears  that  at  the  time  he  had  capacity  sufBcient,  and  did 
iinow  he  was  doing  wrong,  as  before  explained,  he  would  not  be  excused. 
The  rule  is  as  I  have  stated.  If  there  be  a  partial  insanity,  yet  if  it  is 
not  proved  he  was  insane  and  unsound  to  the  extent  I  have  stated,  it 
will  not  excuse  criminal  acts. 

"  I  am  requested,  by  the  counsel,  to  give  some  instructions :  — 

1.  "  'That  if,  at  the  time  of  the  commission  of  the  act,  the  defendant 
was  under  the  influence  of  an  insane  delusion,  impelling  to  the  commis- 
sion of  the  act,  for  which  he  had  no  rational  motive,  notwithstanding  he 
may  liave  appeared  able  to  distinguish  right  from  wrong,  they  shall  find 
for  the  defendant  on  the  groimd  of  insanity. ' 

"  On  that  request  I  will  say  if  he  was  under  an  insane  delusion,  it 
would  be  a  defence  if  the  act,  under  that  delusion,  would  be  justifiable 
in  assuming  the  delusion  to  be  a  fact.  If  he  acts  under  the  delusion, 
for  instance,  that  he  has  a  right  to  kfill,  then  he  is  justifiable ;  but  if  ho 
acts  under  another  delusion,  not  the  cause,  then  he  may  not  be.  For 
instance,  take  the  case  of  Abraham  offering  up  his  son  Isaac.  Where 
ho  ha  I  a  special  commission  to  do  it ;  he  had  faith,  and  believed  it  was 
tlie  c :)minand  of  God,  and  was  about  to  do  it.  Now  suppose  some 
gentleman  here  should  think  he  heard,  in  the  night,  a  voice  coming  to 
him  distinctly  and  audibly  and  saying,  '  Take  your  son  and  build  a  pile 
and  sacrifice  him,'  and  he  fully  believed  it,  and  took  his  little  son  and 
carried  him  out  the  next  day,  and  actually  sacrificed  him. 

"  There  insanity  would  be  fully  proved,  because  he  actually  believed 
it  as  much  as  Abraham  believed  that  it  was  the  commandment  of  the 
Almighty.  A  thing  would  bo  excused  from  delusion,  where  it  would  be 
excused  if  that  delusion  were  true,  as  before  explained.  I  do  not 
think  that  the  evidence  in  this  case  calls  upon  me  to  give  any  ruling  as 
to  a  case  of  blind,  unreasoning  impulse  to  take  life  irrespective  of  mo- 
tive as  to  the  person  assaulted,  and  having  no  connection  with  any  ex- 
isting relation  between  the  assailant  and  the  assailed,  which  impulse 
overcomes  reason,  power  of  the  will,  conscience,  and  all  fear  of  the 
consequences,  and  all  power  to  resist  the  impulse  to  kill,  although  the 
person  might  not  be  shown  to  have  lost  all  sense  of  right  and  wrong. 
That  would  be  like  cases  read  by  the  counsel  for  the  defence  in  his  very 
clear  and  able  opening.  A  French  woman  had  a  desire  to  kill  young 
children,  —  an  insane  desire  to  kill,  without  any  jealousy,  and  without 
any  occasion  whatever.    There  have  been  cases  of  that  kind,  and  it  is  a 


390 


THE    BURDEN    OF    PROOF   OF    INSxVNITY. 


State  V.  Luwrcnc'i', 


question  how  far  that  impulse  might  excuse.     I  think  there  is  nothing 
of  the  kind  shown  in  this  case. 

2.  "  Tliat  in  capital  cases  the  prosecution  must  i)rove  the  felonious 
killing,  and  if  the  jury  have  a  reasonable  doubt  of  the  murder,  tlio 
verdict  must  be  for  acquittal. 

3.  "  Tliat  the  plea  of  insanity  does  not  deprive  the  accused  of  tiie 
benefit  of  this  principle  of  law,  and  does  not  relieve  the  government 
from  proving,  beyopd  a  reasonable  doubt,  tlie  guilt  of  the  prisoner." 

On  tliese  requests  the  judge  said  he  had  already  given  them  in  his 
charge,  but  would  repeat  the  substance  of  what  he  had  said,  viz. :  That 
tlie  government  was  not  relieved  from  proving  the  guilt  of  the  accused 
bej'ond  a  reasonable  doubt  by  such  plea,  or  on  any  other  ground ;  but 
if  it  had  proved  beyond  such  doubt,  all  that  was  required  to  constitute 
the  offence  charged  before  any  evidence  of  insanity  was  offered ;  that 
insanity  must  be  es*;ablislied  by  a  preponderance  of  evidence  as  before 
fully  stated  and  explained  in  the  charge. 

4.  "  Tliat  where  insanity  is  offered  in  defence,  it  is  not  necessary  for 
the  prisoner  to  prove  his  insaniU'  by* a  preponderance  of  testimony,  but 
on  the  contrary,  if  the  jury  find  a  reasonable  doubt  of  the  sanity  :il 
the  time  of  the  commission  of  the  act,  there  must  arise  in  their  miiuls 
a  doubt  of  the  malice,  which  alone  constitutes  murder."  By  the  Court : 
"  I  give  you  no  other  ruling  than  what  I  have  given  you  before." 

6.  "  In  this  case  where  insanity  is  set  up  as  a  defence,  the  court  is 
requested  to  instruct  the  jury  that  the}'  are  to  be  satisfied  from  all  tlu' 
testimony  in  the  case,  beyond  a  reasonable  doubt,  of  the  guilt  of  the 
prisoner,  and  if  tliey  have  a  reasonable  doubt  of  his  sanity,  thev 
are  bound  to  acquit."  No  new  instruction  was  given  under  this 
request. 

G.  "  Will  the  court  also  instruct  the  jury  that  if  thej'  find  that  at  Iho 
time  of  the  commission  of  the  act  the  defendant  was  laboring  under  au 
insanity  which  would  excuse  him  from  legal  responsibility  for  its  com- 
mission they  will  render  a  verdict  of  acquittal,  whether  or  not  they  arc 
satisfied  as  to  the  causes  which  produced  the  insanity  or  its  particular 
form."  The  judge  stated,  in  regard  to  this  request,  that  he  had  already 
instructed  the  jury,  that  if  the  prisoner  was  laboring  under  insanity  at 
the  time  of  the  commission  of  the  act,  sufficient  to  excuse  him,  they 
will  acquit  him,  wiiatever  may  be  the  cause  of  the  iiisanitj-,  or  whether 
ascertained  or  not. 

The  judge  then  proceeded  as  follows :  "  Tliore  is  only  one  other  thing 
I  wish  to  call  your  attention  to,  and  I  think  it  is  my  dut}''  to  say  a  word 
upon  it.     That  is  the  non-nroduction  of  the  prisoner  in  this  case.     It  is 


PUrSONEIl   DECLINING   TO   TESTIFY   ON   TUIAL. 


31)1 


is  nothing 

felonious 
urder,  tlio 

3Cl    of     tlU! 

)vernment 
soncr." 
em  in  his 
iz. :  That 
e  accused 
und;  but 
constitute 
red;  tliat 
as  before 

jssary  ff)i- 
aony,  but 
sanity  at 
}ir  minds 
le  Court : 
J." 

court  is 
n  all  tlic 
It  of  the 
ty,  they 
ider  this 

lat  at  the 
under  an 
its  coni- 

they  arc 
articular 
I  already 
sanity  at 
lim,  they 

whether 

ler  thing 
y  a  word 
e.     It  is 


Till!  InforenccH  to  be  Drawn  Tlu-rcfrom. 


only  a  few  years  since  the  prisoner  was  allowed  to  testify  in  criminal 
eases.  The  law  has  been  altered,  giving  the  prisoner  the  privilege  of 
testifying  if  ho  chooses.  He  is  not  bound  to  testify  to  anything  crim- 
inating himself,  or  bearing  on  tlic  case.  But  if  he  is  not  put  ui)on  the 
stand  you  must  necessarily  understand  and  know  the  fact  that  he  is  not 
put  upon  the  stand  to  state  his  knowledge  to  the  jury.  The  jiirj'  would 
not  be  bound  to,  and  should  not  convict  simply  on  the  ground  that  the 
prisoner  does  not  testify.  But  it  is  a  fact  in  the  case,  more  or  less 
potent  or  important,  as  you  may  consider  it.  In  this  case  the  counsel 
say  tlie  plea  being  insanity,  they  did  not  propose  to  put  on  the  prisoner 
liimself.  Ordinarily  when  insanity  is  allegisd  to  have  continued,  if  he 
was  a  crazy  man  when  tried,  this  suggestion  would  have  more  weight 
than  when  not  laboring  under  insanity  at  the  time  of  the  trial.  While 
lie  was  not  obliged  to  go  on,  you  are  not  to  draw  forced  inferences. 
Perhaps  he  might  have  explained  his  conduct  more  fully,  but  he  chose 
to  rely  upon  the  evidence  presented.  At  all  events  it  is  for  you  to  con- 
sider that  he  did  not  choose  to  go  on  to  the  stand,  and  the  government 
say  there  aro  many  facts  that  he  might  have  explained." 

The  jury  returned  a  verdict  of  guilty  of  murder  in  the  first  degree  ; 
and  the  defendant  alleged  exceptions. 

A.  Knoides  and  John  F.  Godfrey^  for  defendant. 

W.  P.  Frye,  Attorney-General,  contra. 

Danforth,  J. 

The  instructions  and  refusals  to  instruct  in  relation  to  the  responsi- 
bility of  the  insane,  complained  of  in  the  first  exception,  are  in  strict 
conformity  to  the  most  approved  judicial  authorities.  ^  It  is  possible 
that  the  increased  knowledge  of  the  nature  and  effects  of  insanity 
may,  in  appropriate  cases,  require  instructions  more  in  harmony  with 
the  requests  in  this  case.  But,  however  this  maybe,  a  careful  examina- 
tion of  the  testimony,  which  is  reported  in  full,  shows  that  this  is  not 
one  of  those  appropriate  cases,  and  that  the  respondent  is  not,  in  any 
legal  sense,  aggrieved  by  the  instructions  given  or  withheld  upon  this 
point. 

Ho  of  the  last  instruction  excepted  to,  if  such  it  may  be  called.  It 
would  seem  to  be  rather  a  suggestion  of  a  fact  already  existing  iu  the 
case,  than  a  ruling  in  a  matter  of  law.  That  the  prisoner  did  not  go 
ui)on  the  stand  is  a  fact  in  the  case,  and  is  made  no  more  or  less  so, 
simply  because  the  presiding  judge  saw  fit  to  call  the  attention  of  the 
jury  to  it. 

■  Unltcil  states  V.  Ilolmes,  1  Cliff.  98 ;  Com.  r.  llogers,  7  Mete.  600,  and  cases  cited. 


;j92 


THE    HURDEN    OF    TUOOF   OF    INSANITY. 


State  V.  Ltiwrcnco. 


It  could  Imrdly  have  escaped  the  notice  of  tlie  jury  if  tlio  judi^c  had 
not  nlhuk'd  to  it  in  liis  eljar<;e.  It  will  exist  in  every  case,  so  Ions  i'-' 
the  act  permitting  parties  to  testify  remains  the  hiw,  unless  tlie  parly 
himself  chooses  to  make  it  otherwise.  It  will,  too,  have  its  le^itimaU' 
effect  upon  the  minds  of  the  jurors,  more  or  less  convincing,  a(fCordiiig 
to  the  circumstances  of  each  case,  whatever  may  be  the  ruling  of  the 
court  in  regard  to  it.  Belief  is  contiollcd  by  i)rinciples  more  potent  in 
their  action  than  artificial  rules  of  evidi'uct'.  When  a  person  has  an 
opportunity  to  testify  in  relation  to  a  matter  of  which  he  has  knowledjif, 
and  in  which  he  is  deeply  interested,  and  refuses  to  do  so,  such  refusal 
will  have  its  weight,  modilied  only  by  the  accom|)anying  circumstances. 
We  act  upon  such  testimony  constantly.  It  is  the  instinct  of  our 
nature,  and  will  not  be  eradicated  by  the  ruling  of  any  court.  If  this 
leads  to  injustice,  the  wrong  is  inherent  in  the  law  permitting  parties  to 
testify,  and  the  remedy  is  with  the  Legislature  aloiu". 

The  remaining  question  as  to  the  burden  of  proof  in  criminal  cases, 
where  insanity  is  set  up  as  a  defence,  is  one  of  much  more  dilliculty, 
though,  until  recently,  the  authorities  seem  to  have  been  uniform  in  im- 
posing it  upon  the  defendant.  Quite  lately  doul)ts  have  been  suggested, 
and  in  a  few  instances,  judicial  tribunals,  entitled  to  the  highest  re- 
spect, have  come  to  a  conclusion  the  reverse  of  the  former  decisions.  As 
a  matter  of  principle,  the  question  lies  in  a  very  narrow  compass.  The 
difficulty  is  in  the  starting  point,  in  determining  the  premises.  These 
b  iiijr  once  settled  the  conclusion  is  evident.  Those  who  maintain  that 
the  burden  is  upon  the  prosecutor,  contend  that  sanity  is  an  elemental 
part  of  the  crime,  and  is  a  necessary  part  of  its  definition,  and  as  such 
the  jury  must  have  the  same  satisfaction  of  its  truth  as  of  any  other 
part.  It  is  undoubtedly  true,  that  there  can  be  no  guilt  except  as  the 
result  of  the  acti(jn  of  a  sound  mind,  there  can  be  no  crime  except  there 
he  a  criminal ;  nevertheless  there  is  a  palpable  distinction  betwrii  t 
two;  one  cannot  exist  without  the  other,  still  they  arc  t  >  !i  i  not  oii'- 
and  the  same.     The  person  doing  the  act  is  not  the  a  ..     lie  may 

(jr  rna\'  not  be  responsible  for  the  act,  but  in  no  sense  lie  be  the  act. 
So,  too,  whether  he  committed  the  act,  is  one  question,  .md  wh*  iherhe 
is  responsible  for  that  act  is  another  and  entirely  different  lustion. 
Now,  it  should  not  be  forgotten  that  we  start  with  the  legal  presump- 
tion that  all  men  are  sane  and  responsible  for  all  their  acts,  in  other 
words,  that  no  man  is  insane  and  irresponsible,  precisely  as  we  do  with 
the  proposition  that  no  man  has  legal  authority  for  doing  that  which 
otherwise  would  be  a  crime  or  a  trespass.  Hence,  the  statute  defines 
murder  to  be  "the  unlawful  killing  of  a  human  being,  with  malice  afore- 


th.> 
.sai 

Will 

of 

sha 

tri'i 

the 

oiiii 


I'LEA    OF    Nf)T    (JllLTY. 


3S»3 


And  Plea  of  Insanity  Dl.sthifiul.shetl. 


may 
10  acl. 
lorlie 
stion. 
bump- 
otlicr 
0  witli 
■\vlucli 
efi  lies 
fore- 


tlioiiLilit,  c'itlier  express  or   implied."     Here  are  all  llie  elements  neces- 
sary to  constitute  the  crime  assuminjj  a  responsible  agent.     Not  one 
word,  as  to  what  is  or  is  not  required  to  make  him  responsible,  and  so 
of  all  other  statute  definition.     Whoever  shall  do  the  certain  acts  set  out, 
sliall   be  guilty.     Here,  as  everywiiere  in  the  law,  sanity  is  assumed  and 
treated  as  an  essential  attribute  of  humanity.     The  indictment  follows 
the  statute,  setting  out  all  tlie  acts  deemed  essential  to  the  crime,  but 
omitting  all  reference  to  the  capacity  of  the  accused.     Of  all  that  is  set 
out  in  the  indictment  he  is  presumed  innocent,  and  that  must  he  proved 
and  notliing  else.     When  that  is  proved  he  isconvicte<l,  unless  he  inter- 
poses somu  defence  other  tliau  a  sane  denial  of  the  allegations  against 
liiiii.     A  simi)le  plea  of  not  guilty  puts  in  issue  tlie  allegations,  and  only 
the  allegations  in  the  indictment,  and  as  to  them  the  prosecution  has  the 
allirmative.     But  if  the  accused  woiihl  put  in  issue  any  otiicr  allegation, 
any  (piestion  as  to  his  capacity  or  responsibility,  he  must  do  it  by  an 
allirraative  statement.     If  he  puts  in  the  plea  of  insanity  he  assumes  tfic 
atfirmative,  he  changes  the  issue.     And  it  is  immaterial  whether  it  is  in 
writing  or  merely  verl)al ;  in  either  case  it  just  as  effectually  raises  a 
n  w  issue.     It  is  true  it  may  be  resorted  to  in  connection  with  the  plea 
of  not  guilty,  but  it  is  mn  and  cannot  be  a  part  of  il.     The  plea  of  in- 
sanity is,  and  of  necessity  must  be,  a  plea  of  confession  and  avoidance. 
It  does  not  deny  a  single  allegation  in  the  indictment,  but  simply  says, 
grant  all  tliese  allegations  to  be  true,  that  all  these  acts  have  been  done, 
an  I  still  guilt  does  not  follow,  because  the  doer  of  them  is  notresponsi- 
M  •  therefor.     It  does  not  meet  any  question  propounded  by  the  indict- 
ment, butraises  one  outside  of  it.     It  is  not  a  mere  denial,  but  a  positive 
allegation.     It  is,  however,  said  in  the  aigument,  that  the  plea  of  in- 
sanity does  deny  the   allegation  of  malice,  because  the  insane  is  not 
capable  of  such  a  state  of  the  mind.     If  tiie  term  malice  is  used  in  the 
common  meaning  of  that  word,  it  is  not  now  necessary  to  discuss  the 
iiuestion  as  to  how  far  those  who  are  insane  may  or  may  not  indulge  in 
it,  tliough  it  may  well  be  doubted  whether  a  person  may  not  be  so  un- 
s' mid  in  mind  as  to  be  irresponsible,  ahd  yet  be  actuated  by  malice  as 
implying  hatred.     But  however  t!;is  may  be,  he  may  have  malice  in  the 
legal  and  technical  sense,  or  he  may  be  so  wilful  and  deliberate  in  his 
iction,  that  the  law  in  the  absence  of  proof  of  insanity,  will  conclu- 
vely  Infer  malice.     When  insanity  is  found,  it  does  not  show  that  the 
act  was  any  less  wilful  or  deliberate  or  intentional  even ;  but  it  does 
s  ow  an  excuse,  an  irresponsibility  of  what  would  otherwise  have  been 
criminal.     So  here,  as  in  other  respects,  the  plea  of  insanity  does  not 
-leny,  but  avoids  ;  confesses  this  element  as  well  as  the  others,  but  ex- 


394 


THE   BURDEN   OF   PKOOF    OF   INSANITY. 


State  V.  Lawrence. 


cuses.  It  would  seem,  then,  that  the  question  of  insanity  can  never  be 
raised,  unless  by  tlie  prisoner;  and  by  him  onh-in  an  affirmative  allega- 
tion, such  as  carries  with  it  the  burden  of  proof 

Every  man  is  presumed  to  be  innocent.  The  presumj  tion  stands  till 
every  reasonal)le  doubt  is  removed.  Tlie  law  presumes  every  man  saui'. 
Why  should  not  this  presumption  stand  till  removed  by  at  least  a  pre- 
ponderance of  evidence?  Does  it  not,  and  must  it  not  necessarily  titill 
stand,  though  we  may  have  some  doubts  of  its  truth?  That  which  ex- 
ists is  not  destroyed  simply  because  it  may  be  enveloped  in  a  thin  cloud. 
However  we  may  theorize,  it  will  still  exist  until  demolished. 

If  this  prf^sumption  is  to  be  overthrown  by  a  doubt  as  Avell  might  it 
be  abolished  at  once,  and  leave  the  question  of  sanity  like  that  of  malice, 
to  be  proved  by  the  government,  or  implied  from  the  circumstances  ot 
each  case.  But  this  presumption  cannot  be  abolished.  It  is  inherent 
in  human  nature  and  will  exist  as  long  as  rationality  io  an  attribute  of 
man,  and  existing,  it  should  have  some  meaning,  some  force;  enougli. 
at  least,  to  enable  it  to  withstand  something  more  than  a  reasonable 
doubt. 

In  Commonwealth  v.  Mackie,^  is  very  clearly  stated  the  limits  of  the 
burden  of  proof  in  criminal  cases  as  resting  upon  the  government, 
where  the  issue  is  raised  by  a  simple  denial  of  the  allegations  in  the  in- 
dictment. It  is  there  held  that  "where  the  defendant  sets  up  no 
separate  independent  fact,  in  answer  to  a  criminal  charge,  but  confines 
his  defence  to  the  original  transaction  charged  as  criminal,  ",  Ith  its  ac- 
companying circumstances,  the  burden  of  proof  docb  not  cha.ige,  but 
remains  upon  the  government  to  satisfy  the  jury  that  the  act  wasunjusti- 
llable  and  unlawful."  It  is  furt^ v  said  in  the  opinion,  "  there  may  be 
cases  where  a  defendant  relies  on  some  distinct,  substantive  ground  of 
defence  to  a  criminal  charge,  not  necessarily  connected  with  the  trans- 
actions on  which  the  indictment  is  founded  (such  as  insanity,  for 
for  instance),  in  which  the  burden  of  proof  is  shifted  ui)on  the  defend- 
ant." 

In  the  more  recent  case  of  Commonwealth  v.  Eddy,^  where  the  ques- 
tion as  to  the  plea  of  insanity  came  directly  before  the  court,  it  was 
held  that  the  burden  of  proof  was  upon  the  defendant,  and  that  he  must 
satisfy  tlie  jury  of  his  insanity  by  a  preponderance  of  evidence. 

In  accordance  with  tiiis  authority  arc  many  others  entitled  to  great 
respect.^ 


«  1  Gray,  61. 

»  7  Gray,  583. 

3  United   States  v.  Holmes,  1   Cliff. 


ns; 


Wharton's  Am.  Crim.  Law,  sects.  16,  7,  It, 
and  cases  cited;  2  Ureeni.  on  E«.,  sect.  373, 
and  notes. 


INSANE   I'EIISON   TO    IJE   DETAINED. 


395 


Baldwin  v.  Statu. 


But  in  this  matter,  we  are  not  left  to  tlie  principles  of  the  common 
law  alone.  Our  statute  law,  by  imi>lication  at  least,  leads  to  the  same 
conclusion.  By  the  Revised  Statutes  of  18.j9,i  it  is  provided  that, 
'when  the  grand  jury  omits  to  find  an  indictment  against  any  person 
arrested  by  legal  process  to  answer  for  any  offence  by  reason  of  insan- 
ity, they  shall  certify  that  fact  to  the  court ;  and  where  a  traverse  jury, 
for  the  same  reason,  acquits  any  person  indicted,  they  shall  state  that 
fact  to  the  court  when  tliey  return  their  verdict."  And  in  cither  case, 
be  is  to  be  retained  in  prison  or  the  insane  hospital  till  restored  to  his 
right  mind,  or  delivered  according  to  law.  It  can  hardly  be  supposed 
that  the  Legislature  expected  or  intended  that  this  jury  s'  uld  return  as 
a  fact,  the  insanity  of  the  prisoner  when  they  have  onb  a  reasonable 
doubt  of  his  sanity,  or  that  he  should  be  detained  in  custody  till  re- 
stored to  his  right  mind,  when  there  is  not  sufflciont  proof  to  make  even 
a  prma/acie  case  that  he  is  otherwise  than  sane.  Our  conclusion  is, 
that  npon  this  point,  as  well  as  upon  the  others,  the  ruling  was  sulii- 

cieutly  favorable  to  the  prisoner. 

Exceptions  overruled 

Appleton,  C.  J.  ;  Cttting,  Walton,  and  Dickeuson,  JJ.,  concurred. 


BURDEN  OF  PROOF  —  OPINIONS  OF  WITNESSES  —  INSANITY  PRE- 
SUMED  TO  CONTINUE  —  TEST  OF  INSANITY —  INSANITY  OF  EELA- 
TIVES. 

Baldwin  v.  State. 

[12  Mo.  223.] 
In  the  Supreme  Court  of  Missouri,  October  Term,  1848. 


Hon.  William  B.  Naptox, 
"    William  Scott, 
**    Preistly    H.  McBride, 


Judges. 


1.  Burden  of  Proof.  — The  prisoner  jileadiiig  insanity  as  a  defence  to  crime  must  estab- 

lish it  lO  the  satisfaction  of  the  jury. 

2.  Opinions  of  Witnesses  as  to  the  prisoner's  insanity  are  admissible. 

3.  Insanity  Proved  to  Exist  Presumed  to  Continue. —Where  it  is  shown  that  the 

prisoner  was  insane  at  any  time  pnor  to  tlie  commission  of  the  crime  charged,  the  law 
presumes  the  continuance  of  such  insanity  until  a  lucid  interval,  or  a  rcsioratioa  to 
reason  i&  proved. 

1  Ch.  137,  sect.  2. 


396 


THE    BUKDKN    OF   I'liOOF   OF    INSANITY. 


Baldwin  v.  State. 


4.  The  Test  of  Insanity  is  the  ability  to  distinguish  between  the  right  and  the  wrong  of 

the  act  charged. 

5.  Where  there  is  Evidence  of  the  prisoner's  insanity,  the  fact  that  some  of  his  ances- 

tors were  insane  is  relevant. 


unl 

hisl 
coi 


Appeal  from  St.  Louis  Criminal  Court.  The  prisoner  was  convicted 
of  the  murder  of  his  brother-in-law,  Victor  Mathews. 

Sharj),  for  appellant,  Stingfellow,  for  the  State. 

McBride,  J.  — 

(Omitting  rulings  on  other  points.) 

When  the  evidence  closed  the  defendant's  counsel  asked  the  court  to 
instruct  the  jury  as  follows :  — 

1.  That  if  the  jury  believe  from  the  evidence  that  the  defendant  was 
of  unsound  mind  previous  to  the  time  at  which  the  offence  charged  in 
the  indictment  was  committed,  and  that  derangement  or  unsoundness  of 
mind  was  such  as  to  leave  him  without  sufficient  reason,  judgment,  and 
will,  to  enable  him  to  distinguish  between  what  was  right  and  what  was 
wrong,  with  regard  to  the  particular  act  in  question,  the  killing  of  Mat- 
thews for  violence  used  upon  his,  defendant's,  sister;  and  unless  he 
knew  that  the  act  was  u  crime  against  God  and  nature,  they  must  find 
him  not  guilty. 

2.  If  the  jury  believe  from  the  evidence  that  the  prisoner  acted  under 
a  false  and  insane,  but  sincere  belief  that  the  deceased  had  threatened  to 
kill  his  sister,  and  that  from  thif  cause,  he,  under  an  uncontrollable  im- 
pulse, killed  Mathews,  they  must  find  him  not  guilty. 

3.  If  the  facts  are  such  as  to  satisfy  the  jury  that  the  prisoner  had 
been  laboring  under  a  delusion  or  particular  insanity,  or  if  from  his  acts 
and  conduct  testified  to  by  witnesses,  they  believe  him  insane,  or  resting 
under  a  fixed  delusion  upon  tiie  jjarticular  act  in  question  for  some  time 
previous  to  the  killing  of  Mathews,  the  presumption  of  law  is,  that  he 
was  so  insane  when  the  act  was  done. 

4.  If  at  the  time  the  piisoner  fired  the  pistol  at  Mathews,  he  was  not 
conscious  of  doing  wrong,  and  had  not  self-control  to  prevent  him  from 
doing  the  act,  they  should  acquit  the  prisoner. 

5.  As  to  the  question  of  insanity  or  unsoundness  of  mind,  the  true 
point  for  the  jury  is  not  whether  the  prisoner  was  capable  of  distinguish- 
ing between  right  and  wrong  generally,  but  whether  he  knew  in  the  par- 
ticular case,  with  reference  to  tlio  act  in  question,  that  he  was  committing 
an  offence  against  the  laws  of  God  and  nature. 

6.  That  if  the  evidence  in  the  cause  is  such  as  to  satisfy  the  jury  that 
the  prisoner  was  insane  or  of  unsound  mind  previous  to  his  going  to  Ar- 
kansas, and  previous  to  the  killing  of  Mathews,  they  must  acquit  him, 


BALDWIN   V.  STATE. 


397 


Instructions. 


ihe  wrong  of 
t  his  anccs- 

convicted 


5  court  to 

dant  was 
larged  in 
idness  of 
lent,  and 
v^hat  was 
of  Mat- 
iiiless  he 
mst  find 

}d  under 
tened  to 
able  im- 

>ner  liad 
las  acts 
:•  resting 
me  time 
that  he 

vas  not 
m  from 

he  true 
nguish- 
lie  par- 
mitting 

ry  that 
to  Ar- 
it  him, 


unless  they  believe  from  the  evidence,  that  the  prisoner  had  recovered 
his  reason,  and  was  of  sound  mind  at  the  time  the  offence  charged  was 
committed. 

7.  That  if  the  preponderance  of  evidence  was  in  favor  of  his  insanity 
or  unsoundne?  of  mind  —  if  its  bearing  as  a  whole  inclined  that  way, 
they  should  ft-.d  aim  not  guilty. 

8.  That  a..  '.'  is  difficult  to  draw  the  line  of  demarkation  and  say  where 
soundness  of  mind  ends  and  insanity  begins,  the  jury  should  be  gov- 
erned by  facts  and  circumstances  showing  the  condition  of  the  prisoner's 
mind,  and  if  from  those  facts,  as  stated  in  evidence,  the  jury  believe 
that  the  prisoner  rested  under  a  delusion  that  Mathews  had  attempted 
to  kill  his  sister,  and  did  intend  to  kill  her,  and  that  from  that  delusion 
he  was  left  without  sufficient  reason,  judgment,  and  will,  to  know  that 
the  offence  was  a  crime  against  God  and  nature,  they  should  acquit 
him. 

9.  That  although  facts  may  have  been  proved  which,  in  the  absence 
of  insanity  or  unsoundness  of  mind,  or  the  proof  of  it,  might  go  to  show 
malice  in  the  prisoner,  yet  if  the  killing  was  done  while  insane,  or  rest- 
ing under  a  delusion  that  was  fixed  in  his  mind,  which  left  him  without 
the  use  of  his  reason,  judgment,  and  will,  at  the  time  of  the  killing,  the 
malice  is  not  presumed,  but  the  existence  of  it  rebutted,  and  the  jury 
should  acquit. 

10.  That  every  other  question  is  merged  in  the  questio*^  whether  or 
not  the  prisoner  was  insane  at  the  time  of  the  killing,  the  only  question 
for  them  to  determine  is,  was  he  insane  or  of  unsound  mind  with  refer- 
ence to  the  particular  act  in  question,  and  at  the  time  the  offence  is 
charged  to  have  been  comi'  itted,  if  so,  he  should  be  acquitted. 

11.  In  order  to  constitute  a  crime,  a  man  must  have  intelligence  and 
capacity  enough  to  have  a  criminal  intent  and  purpose,  and  if  his  reason 
and  mental  powers  are  either  so  deficient  that  he  has  no  will,  no  con- 
science, no  controlling  mental  power,  or,  if  through  the  overwhelming 
violence  of  mental  disease,  his  intellectual  power  is,  for  the  time,  ob- 
literated, he  is  not  a  responsible  moral  agent,  and  is  not  punishable  for 
criminal  acts. 

12.  That  if  the  jury  believe  from  the  facts  and  circumstances  testi- 
fied to  by  the  witnesses,  that  the  defendant  was  of  unsound  mind  pre- 
vious to  the  killing  of  Mathews,  and  up  to  the  time  when  the  act  wns 
done,  and  that  unsoundness  of  mind  was  such  as  to  fix  a  delusion  upon 
tlie  mind  of  the  defendant  upon  the  subject  of  violence  to  his  sister, 
which  left  him  incapable  of  judging  between  right  and  wrong  with 
reference  to  that  subject,  he  should  be  acquitted. 


398 


THE    BURDEN   OF   PROOF   OF   liNSANITY. 


Balchviu  v.  State. 


13.  That  in  forming  a  conclusion  as  to  the  guilt  or  innocence  of  the 
defendant,  the  jury  should  consider  the  state  and  condition  of  the  pris- 
oner's mind  prior  and  subsequent  to  the  killing,  and  if  from  all  the  evi- 
dence in  the  case,  they  believe  him  of  unsound  mind  at  the  time  the  act 
was  done,  they  should  acquit. 

1-1.  That  the  evidence  of  physicians  examined  as  experts,  is  compe- 
tent evidence  to  assist  them  in  forming  correct  opinions  of  wliat 
unsoundness  of  mind  is,  and  what  the  state  of  the  prisoner's  mind  now 
is. 

15.  That  if  the  jury  have  a  reasonable  doubt  resting  on  their  minds 
of  the  guilt  of  the  defendant,  they  should  acquit. 

16.  That  the  jury  have  the  power  to  find  the  defendant  guilty  of  a 
less  offence  than  the  one  charged  in  the  indictment,  if  from  the  evidence 
in  the  cause  they  believe  him  guilty  of  such  less  offence. 

17.  The  rule  of  law  is,  that  the  whole  of  a  confession  must  be  taken 
together,  if  introduced  by  the  prosecutor,  and  it  is  entirely  a  question 
for  the  jury,  how  far  and  to  what  extent  the  confessions  of  the  prisoner 
are  proved. 

All  of  which  said  instructions  the  court  refused,  except  the  last ;  to 
which  refusal  the  defendant  excepted. 

Thereupon  the  court  gave  the  jury  the  following  charge :  — 
"  Gentlemen  of  the  jury:  Tlie  evidence  in  this  cause  and  the  argu- 
ments of  counsel  on  behalf  both  of  the  prisoner  and  the  State  having 
been  now  concluded,  the  weighty  and  most  responsible  duty  is  devolved 
upon  you  of  saying  upon  your  oaths,  from  the  evidence  before  you. 
whether  the  defendant  is  or  is  not  guilty  of  the  crime  of  murder,  with 
which  he  stands  charged.  To  the  commission  of  any  crime  there  is 
necessary,  not  only  the  doing  of  an  unlawful  act,  but  the  possession  of 
adequate  mental  capacity  to  know  that  the  act  is  wrong  at  the  time  of 
doing  it,  and  the  power  of  choosing  between  the  commission  of  the  act 
and  its  non-commission. 

"In  accordance  with  this  definition,  the  law  of  the  present  case  may  be 
considered  under  two  branches:  (1.)  ^Vhether  the  act  charged  in  the 
iiiiliotment  has  been  committed,  as  therein  charged,  and  if  so,  (2.) 
wliether  at  the  time  of  committing  it,  the  defendant  was  capable  of 
committing  crime;  in  other  words,  what  rules  and  principles  of 
law  ought  to  govern  you  in  passing  up;)n  the  defence  set  up  in  the  case. 

'  'And  here  it  may  be  proper  to  remark  that  the  statutes  of  this  State 
do  not  permit  the  court  to  express  an  opinion  upon  the  evidence  given 
upon  this  trial,  but  only  to  place  liefore  you  such  legal  rules  and  princi- 
ples  applicable  to  the  case  as  ought  to  govern  you  in  its  decision. 


Fii 

si\ 

wl 

coi 

Th 

am 


CONFESSIONS   AS    EVIUENCE. 


399 


Burilen  of  Proof  of  Insanity. 


lice  of  the 
f  the  pris- 
11  the  ovi- 
me  the  act 

is  compe- 

of  what 

mind  now 

eir  minds 

iiilty  of  a 
i  evidence 

;  be  taken 
I  question 
i  prisoner 

e  last ;  to 


the  argu- 
te havinii 
dovolved 
ore  you, 
ler,  witli 

there  is 
jssion  of 

time  of 
f  the  act 

I  may  be 
d  in  tlie 
so,  (2.) 
pable  of 
ijiles  of 
;he  case. 
lis  State 
36  givon 
\  princl- 
lecision. 


First,  then,  in  regard  to  the  commission  of  the  act  charged.  It  is  exclu- 
sively yourprov'ice,  gentlemen  of  the  jury,  to  say  from  all  theevidenct; 
\vhi(.h  has  been  given  before  you,  whether  the  defendant  did  or  did  not 
comu.it  the  act  charged  in  this  indictment  to  have  been  done  by  him. 
The  indictment  charges  the  defendant  with  murder  in  the  first  degree, 
and  if  from  the  evidence  you  find  that  the  defendant  committed  the  act 
charged  in  the  indictment,  in  manner  and  form  as  therein  charged  ;  that 
he  committed  it  wilfully,  deliberately,  i)remeditatedl3',  and  with  malice 
aforethought,  that  is,  without  legal  justification  or  excuse,  and  under 
circumstances  showing  wickedness  and  depravity  of  heart,  you  ought  to 
find  him  guilty,  unless  you  shall  believe  from  the  evidence,  that  at  the 
time  of  committing  the  act,  the  defendant  was  incapable  of  committing 
crime. 

"  It  is  a  rule  of  law,  founded  in  reason,  that  the  confessions  of  a  de- 
fendant, when  voluntarily  made,  are  evidence  against  him,  because 
common  experience  proves  that  a  man  will  not,  without  motive  for  doing 
so,  confess  facts  to  his  disadvantage  unless  they  are  true ;  such  confes- 
sions are  always  strengthened  by  circumstances  corroborative  of  their 
truth.  It  is  also  a  rule  of  law  that  when  tlie  confessions  of  a  defendant 
are  given  against  him,  the  whole  of  what  he  says  at  the  time  of  such 
confession,  as  well  that  which  is  in  his  favor  as  that  which  is  against 
him,  must  be  taken  together  as  evidence  of  the  facts  stated ;  but  it 
is  the  right  of  the  jury  to  disbelieve  and  reject  any  portion  of  such 
statements,  which  the  jury  may  believe  either  intrinsically  improbable, 
or  contradicted  by  other  and  more  satisfactory  evidence. 

'*  If,  gentlemen,  upon  consideration  given  in  the  cause,  you  shall  en- 
tertain a  reasonable  doubt  of  the  commission  of  the  act  by  the  defend- 
ant as  charged  in  the  indictment,  it  will  be  your  duty,  gentlemen, 
without  proceeding  farther,  to  acquit  the  defendant.  But  if,  from  the 
evidence,  you  are  satisfied  beyond  a  reasonable  doubt  that  the  act  as 
charged  in  the  indictment  was  committed  by  the  defendant,  it  will  then 
become  necessary  for  you  to  proceed  to  the  consideration  of  the  defence 
here  set  up,  to  wit:  that  at  the  time  of  the  commission  of  the  act  the 
defendant  was,  by  reason  of  insanity,  incapable  of  committing  crime. 

"  Before  proceeding  to  lay  down  legal  rules  to  aid  you  in  the  decision 
of  this  question,  or  rather  the  first  legal  rule  which  it  is  incumbent  on 
the  court  to  bring  to  your  attention,  is  that  the  law  presumes  every  man 
who  has  arrived  at  the  years  of  discretion  to  be  sane  and  capable  of 
committing  crime  until  the  contrary  is  shown  ;  so  that  the  State,  after 
proving  the  unlawful  act,  need  offer  no  evidence  whatever  of  the  sanity 


400 


THE    BURDEN    OF   TKOOF   OF    INSANITY 


Biikhviii  V.  Stiite. 


of  the  defendant,  but  may  rest  upon  the  legal  jiresumption  of  sanity 
until  the  defendant  shows  the  contrary. 

"This  defence  is  emphatically  one  which  the  defendant  must  make 
out,  and  it  must  be  made  out  to  the  satisfaction  of  your  minds.  For  it 
the  evidence  merely  shows  a  case  of  doubt  where  the  defendant  miglit 
or  might  not  b"  insane,  this  is  not  sufHcient  to  authorize  an  acquittal. 

"I  repeat,  if  the  evidence  shows  merely  that  the  defendant  miglit 
have  been  insane  at  the  time  of  the  commission  of  the  act,  but  does  ndt 
show  satisfactorily  to  your  minds  that  he  was  insane  at  that  time,  this 
is  not  suflicient  to  warrant  an  ac(iuittal. 

"Another  point  to  which  I  think  it  necessary  to  "all  your  attention, 
gentlemen,  is,  that  in  order  to  constitute  a  defence  to  this  charge,  in- 
sanity must  not  only  be  proved  to  have  once  existed,  but  it  must  lie 
shown  to  have  existed  at  the  time  of  the  commission  of  the  unlawful  act. 

"The  question,  therefore,  for  your  decision  is  not  as  to  the  mental 
condition  of  the  prisoner  at  the  present  time.  This  is  entirely  imma- 
terial,  except  so  far  as  it  may  have  a  tendency  to  show  in  connection 
with  other  evidence,  that  he  was  insane  at  the  time  of  committing  the 
act.  I  sa}-,  in  connection  with  other  evidence,  for  even  the  most  posi- 
tive and  conclusive  proof  of  the  defendant's  present  insanity  would  bo 
insufficient  to  warrant  his  acquittal,  without  evidence  of  his  insanity  at 
the  time  of  committing  the  act.  For  it  by  no  means  follows  that  bo- 
cause  a  man  is  found  to  be  insane  at  o»ic  * 'me  that,  therefore,  he  has 
always  been  Insane,  or  that  therefore  he  was  insane  at  any  prior  point 
of  time.  But  if  j-^ou  find  from  the  evidence  that  the  defendant  was  in- 
sane at  any  time  prior  to  that  of  the  alleged  commission  of  the  act  of 
homicide,  the  law  in  such  case  presumes  the  continuance  of  that  in- 
sanity, until  a  lucid  interval  or  a  restoration  to  rexson  is  shown.  But 
if  you  find  from  the  evidence  that  after  the  occurrence  of  the  insanity. 
and  before  the  commission  of  the  act  charged,  a  lucid  interval  did  take 
place,  then  no  presumption  of  the  existence  of  insanity  at  the  time  of 
the  act  can  arise  from  the  proof  of  such  former  insanity. 

"  In  regard  to  t'le  degree  of  insanity  necessary  to  exempt  an  individ- 
ual from  responsibility  for  criminal  acts,  the  law  is  that  his  mind  must 
have  been  so  far  impaired  or  destroyed  that  he  was  unconscious  at  tlio 
time  of  committing  the  ant  that  it  was  wrong,  and  that  he  ought  not  to 
do  it,  or  he  must  have  been  so  irresistibly  impelled  to  the  commission 
of  the  act,  by  insane  impulse,  that  he  had  not  the  ability  to  resist  that 
impulse,  to  control  his  action,  and  choose  between  right  and  wrong.  I 
repeat,  therefore,  if  you  find  from  tie  evidence  that  the  defendant  com- 


TEST   OF    INSAMTY 


401 


What  is  an  Insane  Delusion? 


niitted  tlie  act  charged,  llie  question  for  you  to  determine  is,  wiicthcr 
at  tliat  time  ho  was  capable  of  knowing  tliat  tlie  act  whicli  be  was  com- 
mitting was  an  offence  against  tlie  laws  of  God  and  man,  and  bad  at 
ihat  time  the  power  of  choosing  between  good  and  evil  in  reference  to 
tliat  act.  If,  though  laboring  under  hallucination  or  i)aitial  insanity, 
his  mind  was  not  so  far  clouded  or  destroyed  as  not  to  know  the  act 
was  wrong,  be  cannot  be  excused  for  the  commission  of  the  act. 

"In  determining  this  question,  gentlemen,  you  ought  carefully  to  con- 
sider and  review  all  the  facts  and  circumstances  given  in  evidence,  to 
ascertain  whether,  at  the  time  of  committing  the  act,  the  defendant 
evinced  a  knowledge  or  consciousness  that  he  was  doing,  or  al)out  to  do, 
.1  Avrong  and  criminal  act. 

"  When  monomania,  or  partial  insanity  is  set  up  as  a  defence  to  the 
charge  of  crime,  in  order  to  constitute  such  defence,  it  is  necessary  that 
the  subject  of  insanity  should  lead  to  the  fatal  act ;  in  other  words, 
there  must  be  a  connection  between  the  crime  and  the  insanity,  so  that, 
but  for  the  existence  of  that  insanity,  the  crime  would  not  have  been 
committed.  In  the  present  case  you  ought  first  to  consider  whether  the 
defendant  was  really  under  the  insane  delusion  that  the  deceased, 
Mathews,  bad  abused  and  ill  treated  his  sister,  or  whether  this  state- 
ment was  merely  a  falsehood  invented  by  him  after  the  act,  as  an  excuse 
for  it. 

"To  make  this  an  insane  delusion,  it  must  have  had  no  existence  in 
fact ;  the  defendant  must  have  believed  it  true,  and  have  been  led  to 
tliat  belief  under  the  influence  of  insanity,  and  without  such  reason  or 
cause  for  believing  it,  as  would  have  influenced  a  sane  man ;  for  if  the 
fact  had  existence  and  the  defendant  knowing  it,  took  the  life  of 
^Mathews  for  that  reason,  this  would  be  evidence  of  killing  with  malice, 
and  not  from  insanity. 

' '  In  the  second  place  you  ought  to  consider  whether,  supposing  such 
insane  delusion  to  bave  existed,  the  defendant  was  under  the  still  fur- 
tlier  insane  delusion,  that  for  tbose  supposed  injuries  aud  indignities  to  his 
sister,  he  bad  the  right  to  take  the  life  of  Mathews ;  in  other  words,  that 
to  take  the  life  of  Mathews  in  revenge  for  sucli  injuries,  was  not  against 
the  laws  of  God  or  man,  but  was  right  and  proper.  For  you  will  per- 
ceive, gentlemen,  that  the  imaginary  existence  of  these  facts,  under  the 
inlluence  of  insane  delusion,  could  furnish  no  farther  justification  or  ex- 
cuse for  the  act,  than  the  real  existence  of  those  facts  would  have  done ; 
so  that  unless  the  defendant  was,  by  his  insanity  on  this  subject,  de- 
prived of  the  mental  power  of  drawing  the  proper  conclusions  in  regard 
to  these  facts ;  in  other  words,  deprived  by  bis  insanity  of  the  power 
26 


402 


THE    BURDEN    OF    PROOF    OF    IXSANITY 


H;il(l\vin  v.  State. 


of  knowing  that  these  facts  did  not  authorize  the  taking  of  life,  liis 
deluaion  upon  the  subject  of  these  injuries  can  form  no  excuse  for  hi> 
act. 

"  The  fact  that  some,  or  all  of  a  person's  ancestors  have  been  insane, 
does  not  of  itself  prove  that  person  insane ;  but  where  there  is  some 
direct  evidence  of  insanity,  it  serves  to  increase  the  probability  of 
insanity. 

'•The  opinions  of  medical  men,  gentlemen,  should  have  weight  with  you 
only  so  far  as  their  means  of  knowledge  and  correct  information  upon 
the  facts  testified  to,  show  them  deserving  of  it. 

"  In  conclusion,  gentlemen,  if  you  arc  satisfied  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  defendant  committed  the  act  charge  d 
upon  him  in  the  indictment,  and  in  the  manner  and  form  therein  stt 
forth  and  charged,  and  if  it  has  been  shown  to  the  satisfaction  of  your 
minds  at  the  time  of  committing  the  act,  he  was  [not]  ^ofar  deprived  of 
reason  as  not  to  know  that  the  act  which  he  was  committing  was  wronsx. 
and  was  not  so  far  deprived  of  will  as  not  to  possess  the  power  of 
choosing  between  right  and  wrong  in  regard  to  this  act,  you  ought,  i;. 
such  case,  to  find  him  guilty  of  murder  in  the  first  degree.  But 
if,  on  the  other  liand,  from  the  evidence,  j'ou  have  a  reasonable  doul)t 
of  the  commission  of  the  act  as  charged ;  or,  if  j^our  minds  are  satisfied 
from  the  evidence,  that  at  the  time  of  the  alleged  commission  of  the  act 
of  homicide,  the  defendant  had  not  the  possession  of  reason  sufficient 
to  know  that  the  act  was  wrong,  or  impelled  by  insane  impulse  had  not 
the  power  of  refraining  from  the  commission  of  the  act,  3'ou  ought  in 
any  one  of  the  cases  last  mentioned,  to  acquit." 

To  the  giving  of  which  the  defendant's  counsel  excepted. 

The  charge  given  by  the  court  to  the  jury  is  comprehensive  enough 
to  cover  the  whole  case,  and  we  do  not  perceive  any  legal  objection  to 
it.  It  embraces  most  of  the  principles  contained  in  the  instructions 
asked  for  by  the  defendant's  counsel ;  those  not  embraced  in  it  are  either 
wrong  in  principle  or  have  no  particular  application  to  the  case  under 
consideration ;  therefore  we  see  no  error  on  this  point. 

After  the  jury  had  been  charged  by  the  court  and  retired  to  their 
room  to  consider  of  their  verdict,  the^'^  returned  into  court  and  made  the 
following  inquiry  of  the  judge ;  "  The  jury  wish  to  know,  whether  they 
can  find  the  prisoner  guilty  in  any  other  degree  than  that  charged  in 
the  indictment  for  murder  in  the  first  degree."  The  court  replied: 
"  Not  if  you  find  from  the  evidence  that  the  defendant  committed  the 
act  charged  upon  him  in  the  indictment,  and  committed  it  wilfully,  de- 
liberately,  premeditatedly,  and  with  malice  aforethought,  and  in  all 


otli 

til 

wr< 

1)0) 

mii 

thf 
gui 
tail 
to1 


DEGREES    OF    MrUUEH. 


403 


Power  of  Jury  as  to  tlio  Statutory  Crime. 


f  life,  liis 
ise  for  h\> 

en  insane, 
re  is  some 
(ability  of 

t  with  you 
tion  upon 

dence,  be- 
lt charged 
lierein  st  t 
in  of  your 
iprivcd  of 
as  wrouji-. 

power  of 
ought,  ii; 
ee.  But 
ble  doubt 
}  satisfied 
of  the  act 
sufficient 

had  not 
ought  in 


e  enough 
Jction  to 
ructions 
ire  either 
se  under 

to  their 
nade  the 
her  they 
irged  in 
replied : 
tted  the 
illy,  de- 
:1  in   all 


other  respects,  in  manner  and  form  as  charged  in  the  indictment ;  and 
that  at  the  time  of  so  committing  the  said  act,  he  knew  that  it  was 
wrong  and  that  he  ought  not  to  do  it,  and  at  the  same  time  had  tlic 
])ower  or  will  to  choose  between  its  commission  and  its  non-com- 
mission." 

It  is  insisted  that  the  court  committed  error  in  not  informing  tlie  jury 
that  they  had  a  right,  under  the  law  of  the  land,  to  find  the  defendant 
guilty  of  murder  in  the  second  degree  or  of  manslaughter.  We  enter- 
tain a  different  opinijn,  and  think  that  the  court  very  properly  responded 
to  the  inquiry  of  the  jury.  The  defendant  stood  charged  with  munler 
in  tlie  first  degree.  He  impliedly  admitted  the  taking  of  the  life  of  the 
deceased  and  placed  his  defence  upon  the  fact,  that,  at  the  time  he  com- 
mitted the  act,  he  was  incapable  of  crime  by  reason  of  being  insane, 
this  defence  he  was  bound  to  make  manifest  to  the  jury,  otherwise,  the 
crime  with  which  he  stood  charged  remained  confessed,  without  any 
palliating  or  extenuating  circumstances  to  reduce  it  to  an  inferior  de. 
gree  of  crime.  The  jury  had,  therefore,  no  legal  discretion  ;  they  were 
bound  either  to  convict  the  defendant  of  murder  in  the  Oi-st  degree,  bo- 
cause  he  had  not  established  the  truth  of  his  defence  ;  or,  having  proved 
to  the  satisfaction  of  the  jury  that  he  was  insane  at  the  time  of  doing 
the  deed,  they  should  have  acquitted  him  of  all  crime.  It  is  not  like  a 
case  where  a  defendant  is  charged  in  an  indictment  with  murder  in  the 
lirst  degree,  whilst  the  evidence  proves  the  killing  to  have  been  done 
under  circumstances  which  makes  tlie  offence  only  manslaughter ;  in 
wliich  case  the  jury  may  find  a  verdict  for  manslaughter.  Our  statute 
divide;  murder  into  two  degrees,  first,  when  committed  by  means  of 
poison,  or  by  lying  in  wait,  or  by  any  other  kind  of  wilful,  deliberate, 
and  premeditated  killing,  or  which  shall  be  committed  in  the  perpetra- 
tion, or  attempt  to  perpetrate,  any  arson,  rape,  robbery,  or  other  felony  ; 
and  second,  all  other  kinds  of  murder  at  common  law,  not  declared  by 
statute  to  be  manslaughter  or  justifiable  or  excusable  homicide.  The 
evidence  on  the  part  of  the  State,  consisting  mainly  of  the  confessions 
of  the  defendant,  voluntarily  made,  make  out  a  case  coming  witliin  tlie 
first  degree  of  murder,  and  although  the  duty  is  a  disagreeable  one  to  find 
an  individual  gnilty  of  the  crime  of  murder  in  the  first  degree,  the  pen- 
alty of  which  is  a  forfeiture  of  life,  yet  the  jury  were  bound  under  their 
oath  so  to  find  in  the  case,  unless  they  were  satisfied  from  the  evidence? 
that  the  defendant  was  insane  at  the  time  he  committed  the  act.  If  the 
truth  of  the  defence  made  was  thus  established,  the  defendant  was  en- 
titled, upon  the  principles  of  law,  and  not  through  the  clemency  of  the 
jury,  to  an  absolute  acquittal.     It  is  a  case  in  which  there  is  no  middle 


404 


THE    IIUUDKN    OF    TUOOF    OF    IXlSAMTV. 


Hiildwin  V.  tStiitf. 


ground  to  occupy,  no  legal  compromise  to  make,  no  discretion  vested 
in  the  jury  ;  they  must  cither  find  the  defendant  guilty  as  charged  and 
confessed,  or  acquit  him  on  the  ground,  tliat  by  reason  of  insanity  he  is 
irresponsible  to  the  laws. 

There  is  only  one  other  question  which  we  deem  it  necessary  to 
notice,  and  which  was  raised  on  the  examination  of  tlio  evidence.  'I'lio 
father  of  the  defendant  being  under  examination,  testified  as  to  tlir 
state  of  defendant's  health  for  some  time  i)riorto  the  commission  of  tlie 
act  charged ;  also  as  to  his  conduct  and  otlier  circumstances  ten<liiiii-  to 
show  tliat  at  different  periods  he  was  not  in  liis  proper  mind  ;  when  the 
defendant's  counsel  asked  the  witness  tlie  following  questions:  — 

First.  Was  his  mind  affected  b^'  his  dreams  and  other  siglits  which  lie 
saw  in  his  dreams?  Second.  From  all  that  you  have  seen  and  known  of 
the  defendant,  what  is  yoiu*  opinion  as  to  whether  be  was  or  was  not 
insane  at  the  time  he  left  your  liouse  for  Arkansas?  Third.  From  the 
acts  and  conduct  of  the  prisoner  for  two  years  previous  to  his  going  to 
Arkansas,  was  he  an  insane  person?  Anstcer.  His  conduct  was  sucli  as 
to  induce  my  particular  and  special  attention.  It  was  because  I  did 
not  know  but  that  be  was  going  distracted.  These  qui  stions  and  an- 
swers were  objected  to  by  the  prosecuting  attorney,  and  the  objections 
sustained  by  the  court.  To  the  action  of  the  court,  on  this  point,  the 
defendant  excepted,  and  also  assiirns  it  for  error. 

The  principle  involved  in  the  above  exception  has  been  examined  In- 
the  appellate  court  of  North  Carolina,  in  the  case  of  Clcm/'s  Admr.  v. 
Clary, ^  wherein  it  was  attempted  to  set  aside  a  will,  because  of  the  in- 
sanity of  the  testator,  at  the  time  of  its  execution  ;  and  the  opinion  of 
a  witness  was  asked  as  to  the  state  of  the  testator's  mind  at  the  time  of 
making  the  will.  The  opinion  of  the  court  is  so  comprehensive  and  con- 
clusive, and  meets  our  views  of  the  law  so  fully,  that  we  shall  adopt  that 
part  of  the  opinion  which  discusses  this  question.  The  court  say :  It  is 
certainly  the  general  rule  tliat  witnesses  shall  be  examined  as  to  facts, 
whereof  they  have  personal  knowledge,  and  not  as  to  those  in  regard  to 
which  they  have  no  personal  knowledge,  but  have  only  foniied  an 
opinion  or  belief.  But  this  rule  necessarily  admits  of  exceptions. 
There  are  facts,  which  from  their  nature  exclude  all  direct  positive 
proof,  because  they  are  imperceptible  by  the  senses,  and  of  these  no 
proof  can  be  had,  except  such  as  is  mediate  or  indirect.  No  man  can 
testify,  as  of  a  fact  within  his  knowledge,  to  the  sanity  or  insanity  of 
another.     Such  a  question,  when  it  arises,  must  be  determined  by  other 


'.  3  Ired.  78. 


OnXIOX    EVIDENCE. 


405 


Opinions  of  Ordinary  Witnossi's  as  to  Insanity. 


;ion  vested 
arfjed  iiinl 
ianity  he  is 

cx'ssary  to 
nco.  'I'lic 
as  to  tlif 
jion  of  tlif 
teii(liii<>-  to 
;  ■when  the 

s  Avhich  he 
I  known  of 
)!•  was  not 
From  the 
s  goini;  to 
us  such  as 
use  I  did 
IS  and  aii- 
objoc'tions 
point,  the 

mined  by 

Admr.  v. 

of  the  in- 

)pinion  of 

le  time  of 

3  and  oon- 

idopt  that 

my :  It  is 

to  facts, 

regard  to 

Dnned  an 

:ceptions. 

positive 

these  no 

man  can 

sanity  of 

by  other 


than  direct  proof.     The  precise  inquiry  then  is,  must  the  evidence  be 
restricted  to  the  proof  of   other  facts,  coming  witiiin  tlie  knowledge  of 
tlie  witnesses,  and  from  wliicli  the  jury  may  draw  an  inference  of  sanity 
or  insanity,  —  or  may  the  Judgment  and  belief  of  the  witnesses,  founded 
on  opportuuities  of  personal  observation,  be  also  laid  before  the  jury,  to 
aid  them  in  forming  a  correct  conclusion.     We  understand  that  this  is 
a  matter  on  which  different  judges  have  ruled  tlifferently  on  tlie  circuits, 
•md  it  is  important  that  a  uniform  rule  should  be  settled  in  regard  to  it. 
The  point  was  not  determined  in  Crowell  v.  7j.7/7r, '  nor  are  we  aware  of 
any  direct  and  authoritative  decision,  which    supersedes  the  necessity 
of  recurring  to  general  principles  and  legal  analogies  to  ascertain  what 
is  riglit.     In  the  first  place,  it  seems  to  us  that  tlie  restriction  of  the  evi- 
dence to  a  simple  narrative  of  the  facts,  having  or  supposed  to  have  a 
l)earing  on  the  question  of  capacity,  would,  if  practicable,  shut  out  the 
ordinary  means  of  obtaining  truth;  and,  if  freed  from  this  objection, 
cannot  in  practice  be  effectually  enforced.     Tiie  sanity  or  insanity  of  an 
individual  may  be  a  matter  notorious  and  without  doubt  in  a  neighbor- 
hood, and  yet  few,  if  any,  of  the  neighbors  may  be  able  to  lay  before 
the  jury  distinct  facts  that  would  enable  them  to  pronounce  a  decision 
thereon,  with  reasonable  assurance  of  its  truth.     If  the  witness  may  be 
permitted  to  state  that  he  has  known  the  individual  for  many  years  ;  has 
repeatedly  conversed  with  him,  and  heard  others  converse  with  him  ; 
tliat  the  witness  had  noticed  in  these  conversations  that  he  was  incoher- 
ent and  silly ;  that  in  his  habits  he  was  occasionally  highly  pleased  and 
greatly  vexed  without  a  cause;  and  that  in  his  conduct  he  was  wild, 
irrational,  extravagant,  and  crazy ;  what  would  this  be  but  to  declare 
the  judgment  or  opinion  of  the  witness  of  what  is  incoherent  or  foolish 
in  the  c(jnversation ;  what  reasonable  cause  or  resentment,  and  what 
the  indicia  of  sound  or  disordered  intellect?     If  he  may  not  so  testify, 
biitmust  give  the  supposed  silly  or  incoherent  language,  state  the  de- 
grees and  all  the  accompanying  circumstances  of  highly  excited  emo- 
tion, and  specifically  set  forth  the  freaks  or  acts,  regarded  as  irrational, 
and  this  without  the  least  intimation  of  any  opinion  which  he  has  formed 
of  their  character  —  where  are  such  witnesses  to  be  f onnd  ?    Can  it  be 
supposed  that  those  not  having  a  special  interest  in  the  subject  shall 
have  so  charged  their  memories  with  those  matters,  as  distinct  inde- 
pendent facts,  as  to  be  able  to  present  them  in  their  entirety  and  sim- 
plicity to  the  jury?     Or  if  such  a  witness  be  found,  can  he  conceal  from 
the  jury  the  impression  which  has  been  made  upon  his  own  mind  ;  and 


1  3  Dev.  355. 


400 


THE    IIUUUEN    OF   rUOOF   OF    INSANITY 


Baldwin  V.  State. 


when  this  is  collected,  can  it  be  doubted,  but  that  his  judgnient  has  been 
inllueiiced  by  many,  very  man}',  circumstances,  wliicli  lie  lias  not  com- 
municated, wliicU  he  cannot  comnninicatc,  and  of  which  lie  is  hinisill 
not  aware?  Wc  also  tlilnk  tlierc  is  an  analojry  in  the  investigation  of 
questions  of  this  kind  and  in  the  investigation  of  otlier  questions,  wlicre 
positive  and  direct  evidence  is  unattainable,  and  in  wliich  tlie  rule  of 
evidence  is  well  established.  Of  this  kind  are  (lucstions  of  personal 
identity  and  handwriting.  Mere  opinion  as  such  is  not  admissihle 
But  where  it  is  shown  that  the  witness  lias  had  an  op[)ortunity  of  ol»- 
serving  tiie  cliaracter  of  tlie  person  or  the  liaudwriting,  which  is  sought 
to  be  identified,  then  his  Judgnient  or  belief,  framed  upon  such  observa- 
tion, is  evidence  for  tlic  consideration  of  tlie  juij  ;  and  it  is  for  tliem  to 
give  to  this  evidence  that  weight,  which  tlie  intelligence  of  the  witness, 
his  means  of  ol)servation,  and  all  the  other  circumstances  attending  his 
testimoii}'  may,  in  their  judgment,  deserve.  And  why  is  this,  but  be- 
cause it  is  iniiiossible  for  the  witness  to  specify  and  detail  to  the  jury 
all  the  minute  circumstances  by  which  his  own  judgment  was  deter- 
mined, so  as  to  enable  them  by  inference  from  these  to  form  their  judg- 
ment tlicreon.  And  so  it  is  in  questions  respecting  the  temper,  in  which 
words  have  been  spoken  or  acts  done.  Were  they  said  kindly  or  rude!}-, 
in  good  humor  or  in  anger,  in  a  jest  or  in  earnest?  What  answer  can 
bQ  given  to  these  inquiries,  if  the  observer  is  not  permitted  to  state  lii- 
impression  or  belief?  Must  a  facsimile  be  attempted,  so  as  to  bring 
before  the  jury  the  very  tone,  look,  gestures,  and  manner,  and  let  tlieni 
collect  thereupon  the  disposition  of  the  speaker  or  agent?  It  is  a  well 
known  exception  to  the  general  rule  requiring  witnesses  to  testify  facts 
and  not  opinions,  that  in  matters  involving  questions  of  science,  art, 
trade,  or  the  like,  persons  of  skill  may  speak  not  only  of  facts,  but  give 
their  opinions  in  evidence.  It  is  insisted  that  by  the  terms  of  this  ex- 
ception, persons  not  claiming  to  possess  peculiar  skill,  and  all  persons 
upon  matters  not  requiring  peculiar  skill  are  excluded  from  giving 
opinions.  Professional  men  are  allowed  to  testify  to  the  principles  and 
rules  of  the  science,  art,  or  employment  in  which  they  are  especially 
skilled,  as  general  practical  truths  or  facts  ascertained  by  long  study 
and  experience  ;  and  also  may  pronounce  their  opinion  as  to  the  ap[)li- 
cation  of  these  general  facts  to  the  special  circumstances  of  the  matters 
under  investigation ;  whether  these  circumstances  have  fallen  under  their 
own  observation,  or  have  been  given  in  evidence  by  others.  The  jury 
being  drawn  from  the  body  of  their  fellow-citizens  are  presumed  to  have 
the  intelligence  which  belongs  to  men  of  good  sense,  but  are  not  sup- 


OPINION'    EVIDENCE, 


407 


Opintuiis  of  (H-iliiiary  Wltiussis  A(liiii>f«ll)lL'. 


it  litisliccii 
not  C'(  Mil- 
is  liinisi  li 
ij^atioii  of 
)n8,  \\\wiv 
ho  rule  of 
f  iiersoiial 
dmissihlc 
lity  of  oil- 
is  sou^dil 
li  obscrva- 
jrtliciu  U) 
e  witness, 
Muling  liis 
i,  but  ))('- 

tllO  JlUT 

as  deter- 
hoirjudu- 
,  in  which 
n-  ruilely. 
iswei*  can 
state  iii> 
to  bring 
let  tlieni 
is  a  well 
tify  fact-- 
ince,  art. 
but  give 
this  ex- 
I  persons 
n  givini: 
iples  and 
specially 
iig  study 
le  appli- 
matters 
der  tlieir 
lie  jury 
to  have 
lot   SUJ)- 


posed  to  possess  i)rofcssional  skill,  mid,  therefore,  in  matters  requiring 
the  exercise  of  this  skill,  are  permitted  to  obtain  what  is  needed  from 
tliose  who  have  it,  and  who  are  sworn  to  communicate  it  fairly.  Thus, 
shipmasters  have  been  allowed  to  state  tluir  opinions  on  the  seaworthi- 
ness of  a  ship  from  a  survey  taken  by  others  ;  physicians  to  pronounce 
upon  a  wound  which  they  liave  not  seen  ;  and  i)ainters  and  statuaries  to 
•.five  their  opinion  whether  a  painting  or  statue  bo  an  original  or  copy, 
although  they  have  no  knowledge  by  whom  it  was  nuwle.  Tliis  is  mere 
opinion,  although  the  opinion  of  skilful  men.  This,  none  but  profes- 
sional men  are  peiinitted  t(}  give  in  luatters  involving  peculiar  skill,  and 
none  whatever  arc  allowed  to  give  in  matters  not  thus  involving  skill ; 
because  with  this  exception,  the  jury  are  equally  coini)ctent  to  form  an 
opinion  as  the  witness,  and,  with  this  exception  their  judgment  ought 
to  be  founded  on  their  own  unbiased  opinion.  .But  judgment  founded 
on  actual  observation  of  the  capacity,  disposition,  temper,  character, 
peculiarities  of  habit,  form,  features,  or  handwriting  of  others,  is  more 
than  mere  opinion.  It  approaches  to  knowledge,  and  is  knowledge,  so 
far  as  the  imperfection  of  human  nature  Avill  permit  knowledge  of  these 
things  to  be  acquired,  and  the  result  thus  acquired  should  be  communi- 
cated to  the  jury,  because  they  have  not  the  opportunities  of  personal 
ol)servation,  and  because  in  no  other  way  can  they  effectually  have  the 
benefit  of  the  knowledge  gained  by  the  observation  of  others.  Before 
a  witness  should  be  received  to  testify  as  to  the  condition  of  mind,  it 
should  appear  that  he  had  an  adequate  opportunity  of  observing  and 
judging  of  capacity.  But  so  different  are  the  powers  and  habits  of  ob- 
servation in  different  persons,  that  no  general  rule  can  l)e  laid  down  as 
to  what  shall  be  deemed  a  suiHcient  o[)portunity  of  observation,  other 
than  that  it  has,  in  fact,  enabled  the  observer  to  form  a  belief  or  judg- 
ment thereupon ;  and  the  weight  of  his  opinion  must  depend  upon  a 
consideration  of  all  the  circumstances,  under  which  it  was  formed. 

For  the  foregoing  reasons  we  are  of  opinion  that  the  Criminal  Court 
committed  error  in  excluding  the  question  and  answer  of  the  defend- 
ant's father  from  the  consideration  of  the  jury,  and  that  for  this  reason, 
the  verdict  should  have  been  set  aside,  and  a  new  trial  awarded. 

The  judgment  of  the  Criminal  Court  is  reversed ;  the  verdict  set  aside, 
and  a  new  trial  granted  the  defendant. 

The  cause  is  remanded  to  the  Criminal  Court. 


408 


THE   BUKDEX    OF    I'KOOF    OF   INSANITY. 


State  V.  McCoy. 


BURDEN  OF  PROOF. 

State  v.  McCoy. 

[34  Mo.  531. j 
In  the  Supreme  Court  of  Missouri,  March  Term,  1864. 

Hon.  Barton  Batks,  Chief  Justice, 

"    ^^""'^-^^  V-  ^-  «'''^''  \  Associate  Justices. 
"    JuiixD.S.Dkydkx,  i 

The  Burden  of  Proof  is  on  the  dcfciulant  to  show  that  bo  was  insane  at  the  time  of  the 
commission  of  the  crime  chargetl. 

Appeal  from  St.  Louis  Criminnl  Court. 

Jecko,  Gantt  &  Johnson,  for  appellant. 

Voullaire,  for  respondent. 

Bay,  J.,  delivered  the  opinion  of  the  court. 

At  the  May  term,  18G3,  of  the  St.  Louis  Criminal  Court,  the  defend- 
ant was  indicted  for  the  murder  of  Catherine  Moran,  alleged  to  hnvc 
been  committed  on  the  20th  of  April,  18G3.  LTpon  the  trial  the  kiUing 
was  admitted  and  the  plea  of  insanity  set  up  hy  tae  prisoner's  counsel. 
Beinfr  convicted  of  murder  in  tlie  first  degree,  a  motion  was  made  for  a 
new  trial,  which  was  overruled,  and  the  defendant  now  appeals  to  this 
court.  The  main  ground  relied  upon  by  defendant's  counsel  for  a  re- 
versal of  the  judgment  is  the  giving  by  the  court  below  of  the  second, 
third,  and  thirteenth  instructions,  which  are  as  follows:  — 

"  Th''  law  presumes  every  man  who  has  arrived  at  the  years  of  dis- 
cretion to  be  sane  and  capable  of  committing  crime,  until  the  contrary 
is  sliown  ;  so  that  the  State,  after  proving  the  unlawful  act,  need  offer 
no  evidence  whatever  of  the  sanity  of  the  defendant,  but  may  rest  ui)on 
the  legal  presumption  of  sanity  until  the  defendii  it  shows  the  contrary." 

"  This  defence  of  insanity  is  emphatically  one  which  the  defendant 
must  make  out,  and  it  muj:t  be  made  out  to  the  satisfaction  of  ^our 
minds  ;  for  if  the  evidence  merely  shows  a  ease  of  doubt  when  the  de- 
fendant might  not  be  insane;,  this  is  not  sufficient  to  authorize  an  ncquit- 
tal  on  that  ground  only.  If  the  evidence  shows  merely  that  the 
defendant  might  have  been  insane  at  the  time  of  the  commission  of  the 
act,  but  does  not  show  satisfactorily  to  your  minds  that  defendant  was 
insane  at  that  time,  this  is  not  sufHcient  to  warrant  an  acquittal." 

"  Tlie  jury  are  instructed  that  the  omis  or  burden  of  proof  of  defend- 
ant's insanity  at  the  immediate  time  of  the  killing  rests  upon  the  defeiid- 


ant 

T 

insti 
sho\ 
at  tl 
sriui 
the 
It 


BURDEN    or   PKOOF  ON  TUISONER. 


409 


State  V.  McCoy. 


ant ;  and  if  the  same  be  not  established  to  the  entire  satisfaction  of  the 
jury,  then  they  will  find  her  guilty  of  murder  in  the  first  degree." 

The  tlieory  of  the  defence  as  urged  in  this  court,  and  shown  in  the 
instructions  asked  and  refused,  is  that  it  is  incumbent  u[)on  the  State  to 
show  by  positive  and  atflrmative  testimony  that  the  defendant  was  sane 
at  the  time  of  the  killing ;  and  if  tlie  jury  entertain  a  doubt  as  to  the 
sanity  or  insanity  of  the  prisoner  at  such  time,  the  jury  must  give  her 
the  benefit  of  such  doubt  and  acquit  her. 

It  is  true  that  it  is  incumbent  upon  the  State  to  prove  every  fact 
necessary  to  constitute  the  crime  of  murder,  which  necessarily  includes 
the  sanity  of  the  prisoner ;  but  the  burden  of  proving  such  sanity  is 
fully  met  by  the  presumption  of  law  that  every  person  is  of  sound 
mind  until  the  contrary  appears  ;  and  he  who  undertakes  to  escape  the 
penalty  of  the  law  by  means  of  the  plea  of  insanity  must  rebut  such 
presumption  by  proof  entirely  satisfactory  to  tliti  jury.  It  is  a  defence 
to  be  made  out  by  the  prisoner,  and  by  proof  tha'-  will  satisfy  the  jury 
that  he  was  incapable  of  distinguishing  between  j'ight  and  wrong. 

In  Bellingham's  Case,  which  was  an  indirlment  for  mui'der,  the  de- 
fence set  up  was  insanity,  and  Mansfield,  C.  J.,  in  charging  the  jury, 
told  them:  "That  in  order  to  support  such  a  defence  it  ought  to  be 
proved  by  the  most  distinct  and  unquestionable  evidence  that  the  pris- 
oner was  incapable  of  jud  ng  between  right  and  wrong  ;  that,  in  fact, 
it  must  be  proved  beyond  all  doubt  that  at  the  time  he  committed  the 
atrocious  act  with  which  he  stood  charged,  he  did  not  consider  that 
murder  was  a  crime  against  the  laws  of  God  and  nature,  and  that  there 
was;  no  other  proof  of  insanity  which  wouVI  excuse  murder  or  an3' 
other  crime."  This  doctrine,  founded  in  t.c>son,  has  been  fully  recog- 
n'u.Gd  by  the  courts  of  this  country. 

The  idea,  therefore,  advanced  by  the  prisoner's  counsel  that  it  is  in- 
cumbent upon  the  State  to  prove  that  the  accused  was  sane  at  the  time 
she  oonnnittcd  the  act,  by  evidence  in  addition  to  and  independent  of 
the  presumption  of  law  above  referred  to,  is  not  sustained  by  authority. 

The  first  instruction  asked  l)y  defendant  and  refused,  required  the 
jury  to  acquit  if  they  entertained  a  doubt  as  to  the  sanity  or  insanity  of 
the  defendant  at  the  time  of  the  commission  of  the  homicide. 

Tlie  doctrine  of  this  instruction  was  repudiated  by  this  court  In  the 
case  of  the  State  v.  Hating,^  and  very  properly,  for  it  virtually  requires 
the  jury  to  acquit  if  they  entertain  a  doubt  as  to  whether  the  defendant 
has  succeeded  in  maintaining  the  defence.     The  true  rule  in  our  opinion 

'  21  Mo.  464. 


■^:U' 


410 


THE    BURDEX   OF   PROOF   OF    INSANITY. 


State  V.  Kliuger, 


was  laid  down  by  C.  J.  Shaw,  in  Commonioeallh  v,  liogers,^  which  was 
a  ease  of  murder  and  the  defence  insanit}'.  The  jury  received  a  very 
elaborate  charge  from  the  learned  judge,  and  after  being  in  consultation 
several  hours,  came  into  court  and  asked  the  opinion  of  the  court  upon 
the  following  question:  "  Must  the  jury  be  satisfied  beyond  a  doubt  of 
the  insanity  of  the  prisoner  to  entitle  him  to  an  acquittal?  "  To  which 
the  chief  justice  replied:  "That  if  the  i)reponderance  of  the  evidence 
was  in  favor  of  the  insanity  of  the  prisoner,  the  jury  would  be  author- 
ized to  find  him  insane." 

The  second,  third,  and  fourth  instructions  asked  by  defendant  fi 
embraced  in  those  given  by  the  court,  and  it  was  unnecessary  therefore 
to  give  them  again. 

As  no  other  ground  of  error  has  been  suggested,  the  judgment  ol 
the  Criminal  Court  will  be  affirmed ;  the  other  j  udges  concurring. 


C 


BURDEN  OF  PROOF  —  PARTICULAR  RIGHT  AND  WRONG  TEST. 

State  v.  Klinger. 

[43  Mo.  127.] 
In  the  Supreme  Court  of  Misr.ouri^  October  Term,  1868. 


Hon.  David  Wagxeu, 


I 


"    F.  J.  C.  Fagg,      \  Judges 
"    James  Bakeij,     ) 

1.  Burdeaof  proof. —  The  burden  of  establishing  the  InBanity  of  the  prisoner  is  on  the  do 
:ance.    But  it  is  not  necesiaiy  th.it  it  be  proved  beyond  ii  reasonable  doubt;  it  is  sufti- 
cient  if  the  jury  are  satislied  by  the  weight  and  preponderance  of  the  evidence,  that  the 
accused  was  insane  at  the  time  of  the  commission  of  the  act. 

3.  Particularriffhtandwrong'test.— To  establish  insanity  as  a  defence,  it  must  be  proved 
that  at  the  time  of  committing  the  offence,  the  prisoner  was  laboring  under  such  a  dc 
feet  of  reason  from  disease  of  the  mind  as  not  to  know  the  nati  re  and  qualiiy  of  the 
act  he  was  doing,  or  if  he  did  know  it,  such  as  not  to  know  that  he  was  doing  wrong. 

Appeal  from  St.  Louis  Ci'iminal  Court. 

The  prisoner  was  indicted  in  tlie  8t.  Louis  Criminal  Court  for  the 
murder,  on  November  2r)th,  1807,  of  Henry  Wider.  He  was  found 
guilty  of  murder  in  the  first  degree. 

W.  H.  11.  Russell,  for  the  appellant. 

'  T  Mete.  500. 


TEST    OF   INSANITY, 


411 


Burdou  of  Proof. 


C.  p.  Johnson,  circuit  attorney,  for  the  Slate. 
"Wagner,  J.,  delivered  the  opinion  of  the  court. 

The  only  defence  set  up  by  tlie  accused  was  insanity  ;  and  it  is  urged 
hy  his  counsel  tliat  the  court  committed  error  in  its  instructions  on  tliat 
question.  It  would  subserve  no  useful  purpose  to  go  into  a  laborod  or 
lengthy  review  of  the  authorities  on  that  subject,  as  they  will  be  found 
diverse  and  irreconcilable.  Recent  researches  in  medical  science  have 
eliminated  rules,  going  very  far  to  mitigate  the  doctrines  laid  down  hy 
the  old  authors.  It  may  be  said  that  it  is  now  universally  conceded 
that  insanity  is  a  disease  of  the  brain  —  of  that  mass  of  matter  through 
and  b}'  which  the  powers  of  tlie  mind  act.  There  are  different  kinds  of 
insariity,  and  different  degrees  of  the  same  kind,  and  it  has  been  found 
e-'ceedingly  ditlicult  to  furnish  any  sure  test  for  the  guidance  of  courts 
and  juries. 

The  question  of  insanity  is  always  one  of  fact ;  Init  how  much  proof 
shall  be  required  and  where  the  onus  ends,  is  involved  in  perplexity. 
T''e  defence  may  be  made  out  by  circumstances ;  but  every  man  is  pre- 
sum  d  to  be  sane,  ."ud  to  possess  a  sullicient  degree  of  reason  to  b 
responsible  for  his  crimes,  until  the  contrary  is  shown  ;  and  to  esla])lisli 
the  defence  it  must  be  proved  that  at  the  time  of  committing  the  offence 
lie  was  laboring  under  such  a  defect  of  reason,  from  disease  of  the 
mind,  as  not  to  know  the  nature  and  qualitj'  of  the  act  he  was  doing, 
or,  if  he  did  know  it,  such  as  no-  to  know  that  he  was  doing  wrong. 

The  instruction  mainly  complained  of  is  the  following:  ''The  law 
presumes  that  every  man  is  sane  until  the  contrary  is  established  b3'the 
evidence  to  the  satisfaction  of  the  jury;  and  when  insanity  in  any  form 
i-;  set  up  as  a  defence,  it  is  a  fact  vhich  must  be  proved  li'co  any  fact. 
The  burden  of  proving  such  insauxtj'  is  upon  the  defenda  it,  and  he  i> 
not  entitled  to  the  benefit  of  a  mere  doubt  whether  he  wus  or  was  iKrt 
insane." 

It  is  now  insisted  that  if  the  evidence  v  as  sufficient  to  raise  a  mere 
duulit  in  the  minds  of  a  jury  concerning  the  defendant's  sanity.  ili;r 
doubt  inured  to  his  benetit,  and  would  have  authorized  his  ac(iuittal. 
and  tliat  the  court  should  have  so  directed. 

The  instruction  given  is  in  entire  consonance  with  the  previous  deci- 
sions of  this  court,  and  has  been  considered  the  establisiied  law  of  this 


State  for  man}'  yetirs. 

In    State   v.  Huting,^  it 
charged  with  murder,  who  ai 


was 

(led. 

ire 

dmits  the 

kil 

21  Mo. 

464 

ed  in  explicit  terms  that  a  party 
ling  and  relies  upon  the  defence 


412 


THE    IlUPiDEX   OF   PROOF    OF    INSANITY. 


State  V.  Klinsrer, 


of  insanity,  must  make  it  out  to  the  satisfaction  of  the  jury,  and  tli:it 
he  is  not  entitled  to  the  benefit  of  a  reasonable  doubt  as  to  his  sanity. 
The  subject  was  not  much  considered,  but  the  rule  was  announced  as 
one  considered  well  settled.  In  the  case  of  the  State  v.  McCoij,^  the 
same  question  was  again  presented,  and  the  ruling  in  Iluting's  Case  re- 
affirmed. But  there  are  some  recent  ca.jes  in  which  the  doctrine  con- 
tended for  by  the  appellant  receives  strong  support.  ^  In  IIopps  v.  People'' 
it  was  hold  by  a  majority  of  the  court  th.at  it  was  not  necessary  that  the 
insanity  of  the  accused  should  be  established  by  even  a  preponderance 
of  proof;  but  if,  upon  the  whole  evidence,  the  juryentertaui  a  reason- 
able doubt  of  his  sanity,  they  should  acquit.  Bartlett's  Case^  is  to  the 
same  effect.  In  the  former  of  these  cases,  Judge  Brcesc  took  tlio 
strong  position  that  the  burden  of  proof  was  on  the  government  throug!:- 
out.  I  should  be  very  reluctant  to  give  this  proposition  my  unqualilicd 
assent. 

Both  observation  and  experience  show  that  insanity  is  easily  simu- 
lated ;  and  if  a  bare  doubt,  which  may  be  created  in  the  minds  of  :t 
jury  by  slight  circumstances,  is  permitted  to  control  and  produce  :ia 
acquittal,  the  guilty  will  often  go  unpunished,  and  the  nterests  of  sn- 
ciety  suffer  great  injury.  Mr.  Bishop,  a  writer  of  great  accuracy  on 
criminal  law,  remarks:  "Sanity,  as  observed  by  a  learned  judge,  is 
presumed  to  be  the  normal  state  of  the  human  mind,  and  it  is  never  in- 
cumbent on  a  prosecutor  to  give  adirmative  evidence  thist  such  state 
exists  in  a  particular  case.  But,  suppose  this  normal  state  is  denied  to 
have  existed  in  the  particular  instance,  then,  if  evidence  is  produced  in 
suppoi't  of  such  denial,  the  jury  must  judge  of  it  and  its  effect  on  the 
main  issue  of  guilty  or  not  guilty  ;  and  if,  considering  all  the  evidence, 
and  considering  the  presumption  that  what  a  man  does  is  sanely  done. 
and  suffering  the  evidence  and  the  presumption  to  work  together  in 
their  minds,  they  entertain  a  reasonable  doubt  whether  the  prisoner  did 
the  act  in  a  sane  state  of  mind,  they  are  to  acquit;  otherwise  they  are 
to  convict."  ^ 

I  think  that  the  safest  and  most  reasonable  rule  is  that,  as  the  law 
presumes  every  person  who  has  reached  the  age  of  discretion  to  be  of 
sufficient  capacity  to  be  responsible  for  crimes,  the  burden  of  estalihsh- 
ing  the  insanity  of  the  accused  affirmatively  to  the  satisfaction  of  the 
jury  on  the  trial  of  a  criminal  case,  rests  upon  the  defence.     It  is  nut 


ne 

W( 

at 


34  Mo.  531. 
-  People    V.  McCann,16N.  Y.  58;  IIopps 
r.  Poople,  .'51  ni.  385  ;  State  v.  Bartlett,  43  N. 
H.  224. 


^  Supra. 

<  43  .V.  II.  224. 

'  1  I?i-lt.  Criin.  Prac.sect.  534. 


BURDEN    OF    rUOOF, 


413 


Court  Must  Not  Iu^struct  as  to  Weinht  of  Evidence. 


ry,  and  tli;ii 
0  his  sanit}-. 
inounced  as 
McCoy ^  tlK' 
fs  Case  re- 
3ctrine  coii- 
)sv.  People-' 
lary  that  the 
iponderanee 
111  a  rcasoii- 
'e  '^  is  to  the 
c  took  the 
'lit  throiigh- 
unquahlied 

;asily  simii- 
minds  of  a 
produce  a  a 
■ests  of  sd- 
3curacy  on 
i  judge,  is 
is  never  in- 
such  state 
s  denied  to 
roduecd  in 
feet  on  the 
i  evidence, 
aely  done, 
iogethcr  in 
"isoner  did 
10  they  arc 

18  the  law 
n  to  be  of 

estalthsli- 
on  of  the 

It  is  uut 


necessary,  however,  that  this  defence  be  established  beyond  a  reason- 
ahle  doubt.  It  is  sudicient  if  the  jury  is  reasonably  satisfied,  by  the 
weight  or  preponderance  of  the  evidence,  that  the  accused  was  insane 
at  the  time  of  the  coininission  of  the  act.^ 

[The  judgment  was  reversed  on  other  grounds.] 


BURDEN  OF  PROOF  —  INSTRUCTIONS  —  COURT  MUST  NOT  INSTRUCT 
AS  TO  WEIGHT  OF  EVIDENCE  — REASONABLE  DOUBT  ON  WHOLE 
EVIDENCE. 

State  v.  Smith. 

[53  Mo.  2(;7.] 
In  the  Supreme  Court  of  Missouri,  July  Term,  1873. 

Hon.  i/.\vin  W.\gxi;i;,  ] 
"  Wash.  Adams,  I 
"    IL  M.  VoHiKrt,         I  Judges. 

"      T.  A.  SlIEHWOOD,     1 

"    W.  B,  Nai'tox,      j 

1.  Burden  of  Proof  —  Instruction.  —  The  burden  of  proof  being  on  the  ))risoner  to  prove 
his  insanity,  an  instruction  tliat  to  overtluciw  the  presuniptinn  of  sanltj"  lie  must  satisfy 
the  jury  by  "  the  weight  ami  iireiiomU'rance  "  of  ilie  tesiimony  that  he  was  insane  at  the 
time  he  committed  the  crime,  is  not  error. 

i.  Instructions—  Court  Must  Not  Instruct  as  to  Weight  of  Evidence.  —  It  is  error 
for  the  court  to  select  certain  facts  shown  by  the  eviUence,  and  tell  tlic  jury  what  weight 
should  be  attached  to  iheni. 

■'->.  Reasonable  Doubt  on  Whole  Evidence.  —  If  tlie  jury  have  a  reasonable  doubt  of  the 
commission  of  the  crime  on  the  whole  evidence  iliey  should  acquit. 

Appeal  from  Greene  County  Court. 

VouiKS,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  was  prosecuted  and  tried  in  the  Greene  Circuit  Court, 
upon  an  indictment  for  an  assault  with  the  intent  to  kill.  It  is  L'harged, 
in  substance,  by  the  indictment,  that  the  defendant  on  the  fifth  day  of 
July,  1871,  at  the  county  of  Greene,  etc.,  did  unlawfully,  wilfully  and 
felonious^,  with  a  eliopi)ing  axe,  which  Avns  a  deadly  Aveapon,  etc. 
make  an  assault  upon  the  bod^'  of  one  Amanda  Hancock,  with  the  in- 
tent to  kill,  etc.     The  evidence  on  the  part  of  the  State  was   cireiim- 


•  l.oetfnerf.  State,  10 Ohio  St. 5it8,  Fisher 
;     People,  23    in    2S3;   CommouwealtU  i- 


Rogers,  7  Mete.  500 ;  Commonwealth  r.  Eddy, 
7  tjiray,  583. 


414 


THE    BUKDEN    OF    PIIOOF   OF    INSANITY 


State  V.  Sinitli. 


stnniial,  no  direct  evidence  of  the  assault  by  defendant  being  intro- 
duce'd.  Tlie  defendant  introduced  several  witnesses,  wliose  evidence 
tended  strongly  to  prove  insanity  on  the  part  of  the  defendant. 
This  evidence  tended  to  prove  insanity  at  a  time  commencing  four  or 
five  months  before  the  assault,  and  only  a  few  days  previous  to  the 
assault,  and  after  the  assault  while  the  defendant  was  in  prison. 

At  the  close  of  the  evidence  the  court,  on  the  part  of  the  State,  in- 
structed the  jury  as  follow      — 

First.  "  The  court  instructs  the  jury  that  the  law  presumes  that  every 
man  that  has  arrived  at  years  of  discretion  is  sane,  and  that  the  pre- 
sumption continues  until  the  contrar}'  is  shown  by  the  weight  and  pre- 
ponderance of  testimony." 

Second.  "  The  court  declares,  the  law  to  be  that,  when  the  State  has 
proven  the  offence  charged,  she  can  rest  her  case  upon  the  legal  pn- 
sunii)tion  that  the  party  accused  is  of  sound  mind,  and  if  the  defendant 
seeks  to  avoid  the  punishment,  he  must  satisfy  the  jury  by  the  weight 
and  preponderance  of  testimony  that  he  was  insane  at  the  moment  that 
he  committed  the  crime." 

Third.  "  That  it  is  not  suflieicnt  to  warrant  an  acquittal  for  the  de- 
fendant simply  to  show  that  at  times  he  acted  and  talked  strangel}'  and 
siiiguhuly  ;  but  that  the  jury  must  believe  from  the  testimony  that  he 
was  insane  at  the  very  time  that  he  committed  the  offence,  and  that  he 
was  so  insane  that  he  could  not  di>tinguish  right  fnmi  wrong." 

To  the  giving  of  these  instructions  the  defendant  objected,  and,  his 
objections  being  overruled,  he  excepted.  The  defendant  then  asked  the 
court  to  give  the  jury  several  instructions,  all  of  which  were  refused. 
And  he  again  excepted. 

Two  of  these  instructions  asked  and  refused,  were  as  follows:  — 

"The  court  instructs  the  jury  that  it  devolrvs  upon  the  State  to 
prove  that  the  defendant  is  guilty,  as  charged  by  the  indictment,  and 
unless  the  State  has  estal)lishL'd  beyond  all  reasonable  doubt  that  the 
defendant  is  guil'v,  as  charged,  they  will  acquit." 

'•  That  if  upoi  a  review  of  the  whole  case,  and  a  consideration  of  all 
the  circumstanct'^  connected  with  it,  the  jury  have  a  reasonable  doubt 
as  to  the  guilt  of  the  defendant,  they  will  find  him  not  guilty." 

After  the  ab.  .e  instructions  were  refused,  the  defendant  asked  the 
court  to  iustru't  the  jury  that,  '•  if  they  have  a  reasonable  doubt  as  to 
the  giiilt  of  the  defendant,  tliey  will  acquit."  This  was  also  refused 
and  liie  defendant  again  exctj>ted. 

The  jury  then  returned  a  vertlict  of  gtrilty  against  the  defendant,  and 
assessed  his  iiunishment  at  imprisonment  in  the  iienitentiary  for  the 


BUIIDEX    OF    IMIOOF. 


415 


"  Weight  and  Preponderance  of  Testimony." 


term  of  two  years.  The  defendant  filed  a  motion  for  a  new  trial  on  the 
ground,  among  others,  that  the  court  has  erred  in  refusing  proper  in- 
i^tructions  asked  for  b}'  tlic  defendant,  and  in  giving  iniproi)er  instruc- 
tions on  the  part  of  tlie  State.  This  motion  was  overruled,  and  final 
judgment  rendered  against  the  defendant.  The  defendant  again  ex- 
cepted and  appealed  to  this  court. 

The  only  questions  presented  by  the  record  for  the  consideration  of 
this  court  are  as  to  the  propriety  or  impropriety  of  the  acticju  of  the 
cniu't  trying  the  cause,  in  giving  instructions  on  the  part  of  the  State 
and  in  refusing  those  asked  for  by  the  defendant. 

By  the  first  and  second  instructions  given  by  the  court  ou  the  part  of 
the  prosecution,  the  jury  are  told  that  the  law  presumes  that  every  man 
wlio  has  arrived  at  years  of  discretion  is  sane  or  of  sound  mind ;  and 
ihat  if  the  defendant  seeks  to  avoid  this  presumption,  he  must  satisfy 
the  jury  by  the  weight  and  preponderance  of  testimony,  that  he  was 
insane  at  the  time  he  committed  the  crime. 

It  is  urged  by  the  defcnidant  that  the  court  committed  error  in  these 
instructions.  The  authorities  upon  the  subject  of  insanity,  and  upon 
the  subject  of  the  burden  and  amount  of  proof  in  such  cases,  will  be 
found  to  be  very  conflicting,  some  courts  holding  that  it  devolves  on  the 
Jofendant  in  such  cases  to  prove  the  fact  of  insanit}-  b;  the  evidence,  so 
tloar  as  to  leave  no  reasonable  doubt  as  to  the  insanity.  Other  courts 
liavc  held  that  all  that  is  necessary  is  to  produce  enough  evidence  to 
create  a  reasonable  doubt  in  the  minds  of  the  jurors  as  to  whetlier  in- 
sanity exists  in  the  given  case  or  not ;  while  it  has  been  repeatedly  held 
in  tills  court  that  "  insanity  is  a  simi)le  question  of  fact  to  be  proved 
lilco  any  other  fact,  and  any  evidence,  wliich  reasonably  satisfies  the 
jury  tiiat  the  accused  was  insane  at  the  time  the  act  was  committed, 
sliduld  be  deemed  suflScient."' 

The  l)urden  of  proof,  of  course,  is  held  by  this  court  to  be  on  the 
'Ufeudant  to  rebut  the  i)resumption  of  sanity  which  exists  in  all  cases 
until  the  contrary  is  made  to  appear.  The  instructions  under  consid- 
eration would  have  been  more  satisfactory  if  they  had  been  differently 
worded,  though  the  principle  asserted  in  them  is  in  effect  the  same  as 
tliat  enunciated  in  the  cases  decided  by  this  court  above  referred  to. 
The  jury  are  told  that  they  must  be  satisfied  by  the  weight  and  prepon- 
derance of  lestiiiiony.  This  language  is  well  understood  by  lawyers  to 
mean,  that  the  evidence  must  be  sufficient  to  satisfy  the  minds  of  the 
jurors  as  to  the  fact  of  insanity,  and  that  is  all  that  is  required.  Of 
C(;urse  this  must  necessarilj- be  accomplished  by  a  preponderance  of  the 

'  State  r.  Hundlej-,  46  Mo.  4U;  State  v.  Ivlinger,  4:5  Mo.  1'27;  St«tc  r.  McCoy,  34  Mo.  531. 


410 


THE    BUUDEX   OF   I'UOOF   OF    INSANITY. 


State  V.  Smith. 


evidence.  But  the  jiuy  are  told  by  the  instruction  that  this  conviction 
of  their  minds  must  be  produced  by  the  "  weight  and  preponderance  of 
the  testimony."  It  is  barel}'  possible  that  juiors  miglit  be  held  to  be- 
lieve that  it  took  scraething  more  tlian  a  conviction  of  the  mind  to  fiiui 
in  favor  of  a  plea  of  insanity,  from  the  language  used  in  the  instruc- 
tions. Yet,  instructions  using  almost  the  same  language  have  been  ap- 
proved in  the  cases  above  referred  to.  The  case  ■would,  therefore,  n^t 
be  reversed  merely  on  the  ground  of  the  informality  of  these  instruc- 
tions. 

The  third  instruction  given  by  the  court  on  the  part  of  the  prosecu- 
tion, tells  the  jury,  "that  it  is  not  sulHcient  to  warrant  an  acquittnl. 
for  the  defendant  simi)ly  to  sliow  thftt  at  times  he  acted  and  talkdl 
strangely  and  singuluil}-,  but  that  the  jury  must  believe  from  the  testi- 
mony that  he  was  insane  at  the  ver}'  time  he  committed  the  offence,  ami 
that  he  was  so  insane  that  he  could  not  distinguish  right  from  wronir." 
This  instruction  was  clearly  wrong;  it  is  not  the  province  of  the  cou  t 
to  select  certain  facts  shown  by  the  evidence,  and  tell  the  jury  how 
much  and  what  weight  they  sliall  give  to  such  facts,  or  whether  thcv 
shall  give  such  evidence  any  weight  at  all.  The  court  passes  upon  tin 
legality  or  admissibility  of  the  evidence,  but  after  the  evidence  is  legally 
admitted,  it  is  the  exclusive  provision  of  the  jury  to  pass  upon  tU 
weight  of  the  evidence  giveu,  and  give  each  part  of  the  evidence  sutl; 
weight  as  in  their  judgment  it  is  entitled  to  receive,  without  an}'  inter- 
ference or  direction  of  the  court  whatever.  Tlieir  minds  ought  to  act 
freely  on  the  facts  of  the  case  without  any  other  control  than  that  of 
their  own  unbiased  judgment.  This  instruction  is  a  comment  on  the 
evidence,  wliich  is  expressly  forbidden  by  our  statute.' 

The  statute  provides  that  the  court  shall  not  "  sum  up  or  comment  or. 
the  evidence."  If  the  court  can,  under  this  statute,  select  certain  por- 
tions of  the  evidence  and  toll  the  jury  how  much  weight  to  give,  or 
Avhetlier  they  shall  give  the  evidence  selected  au}-  weight  at  all,  then  nn 
reason  can  be  perceived  why  the  court  could  not  select  other  parts  of 
the  evidence,  or  all  of  the  facts  in  the  caise,  and  tell  the  jury  what 
weight  to  give  the  same,  and  in  effect  tell  what  verdict  should  1)0  foumi. 
To  permit  this,  would  l)e  to  wholly  destroy'  whatever  value  there  is  in 
the  right  of  trial  b}'  jury.  The  decisions  of  this  court  have  been  uni- 
formly in  condemnation  of  such  instructions. ^ 

The  defendant  on  the  trial  asked  the  court  to  instruct  the  jury: 
*'  That  if  upon  a  review  of  the  whole  case  an('  a  consideration  of  all  the 


1  W.  S.  1106,  sect.  30. 

«  state  V.  Huudley,  4(3  Mo.  4U ;  Fine  v.  St. 


Louis  Public  Scliools,  30  Mo.  IGC;  State  v. 
Cusliing,  29Mo.  216. 


XITY. 


BUKDEN    OF   PROOF, 


417 


that  this  conviction 
nd  preponderance  of 
might  be  held  to  be- 
ef the  mind  to  fiiKi 
ised  in  the  instrut- 
guage  have  been  ap- 
^ould,  therefore,  ]v,\ 
ity  of  these  instruc- 

part  of  the  prosecu- 
■arrant  an  acquittal. 
e  acted  and  taliccd 
lieve  from  the  te>i  i- 
ted  the  offence,  and 
right  from  wronl,^'■ 
ovince  of  the  coiim 
d  tell  the  jury  how 
ts,  or  whether  they 
•irt  passes  upon  tin 
c  evidence  islegalh 
'  to  pass  upon  tli 
'  the  evidence  smli 
without  any  Inter- 
ninds  ought  to  m  t 
ontrol  than  that  of 
a  comment  on  the 

2.1 

1  up  or  comment  ni; 
select  certain poi- 
weight  to  give,  or 
ight  at  all,  then  no 
Icct  otlier  parts  of 
tell  tlie  jury  what 
t  should  be  foumi. 
r  vaUie  there  is  in 
art  have  been  uni- 

instruct  the  jury: 
ideration  of  all  tlio 

e,  30  Mo.   16G;  State  s. 


State  V.  Hundley. 


circumstances  connected  with  it,  the  jury  have  a  reasonable  doubt  as  to 
tlio  guilt  of  the  defendant,  they  will  lind  him  not  guilty."  The  court 
was  clearly  wrong  in  refusing  to  give  tliis  instruction.  In  this  ca«e,  the 
assault  charged  in  the  indictment  was  not  admitted  so  as  to  leave  the 
issue  of  insanity  or  no  insanity  tlie  only  issue  to  be  tried.  Tlic  assault 
was  denied  and  was  only  attempted  to  be  proved  bv  circumstantial  evi- 
dence  so  that  the  jury  had  to  pass  upon  not  onlv  the  fact  of  insanity 
but  also  on  the  evidence  tending  to  prove  that  ti^e  accused  committed 
the  assault  complained  of.  In  such  case  tlie  instruction  asked  was 
clearly  right  and  ought  to  have  been  given. 

In  delivering  the  opinion  of  tlie  court  in  the  case  above  referred  to 
of  &tate  of  Missouri  v.  Klinger,  Judge  Wagner  approvingly  makes 
the  following  quotation  from  Bishop  on  Criminal  Law :   "  Sanity  as  ob- 
served by  a  learned  judge,  is  presumed  to  be  the  normal  state' of  the 
human  mind,  and  it  is  never  incumbent  on  a  prosecutor  to  give  alHrma- 
t.ve  evidence  that  such  state  exists  in  a  particular  case.     But  suppose 
thus  normal  state  is  denied  to  have  existed  in  the  particular  instance, 
then,  If  evidence  is  produced  in  support  of  such  denial,  the  jury  must 
.U-dge  of  It  and  its  effect  on  the  main  issue  of  guilty  or  not  guilty,  and 
If,  considering  all  the  evidence,  and  considering  the  presumption  that 
what  a  man_  does  is   sanely  done,  and   suffering   tho  evidence   and 
the  presumption  to  work  together  in  their  minds,  they  entertain  a  rea- 
sonable doubt  whether  the  prisoner  did  the  act  in  a  sane  state  of  mind 
they  are  to  acquit.     Otherwise  they  are  to  convict. ' ' 

I  am  of  the  opinion  that  the  judgment  should  be  reversed.     The  other 
judges  concurring,  the  judgment  is  reversed  and  the  cause  remanded 


BURDEN  OF  PROOF  -  INTOXICATION -INSTRUCTIOXS  AS  TO  WEIGHT 
AND  SUFFICIENCY  OF  EVIDENCE. 

State  v.  Huxdley. 

[4(5  Mo.  414,1 
In  the  Supreme  Court  of  Missouri,  August  Term,  1870. 


Hon.  Da  VIP  Wagxki!,     ] 


(I 


Wakuen  Cuukiek. 


^'  ^untr^hf  TT^'  "T*'"  ^"'■'''"  "^  "'"^'"^  '"^'''"''y  *°  "'«  satisfaction  of  the  jury  rests 
upon  the  ae_fence ;  but  it  is  not  necessary  that  insanity  should  be  established  beyond  a 


418 


THE   BURDEN    OF   PROOF   OF   INSANITY. 


Statu  V.  HumlU'y. 


rcaflonablc  doubt.    An  instruction,  therefore,  which  requires  a  clear  preponderance  of  tin- 
cviduiico  to  cstnblisti  insanity  is  erroncout), 

2.  DrunkenneBS—  Insanity  Resulting'  Thereftroxn.  —  Tcmporar}'  insanity  resulting  ini- 
mediiitc'ly  from  voluntary  intoxication  is  no  defence  to  crime,  IJut  insanity  rcmotuly 
occasioned  by  previous  bad  habits,  is  entitled  to  the  same  consideration  as  if  it  aruuu 
from  any  other  cause. 

:i.  It  is  Error  for  the  court  to  instruct  on  the  weight  and  sufficiency  of  the  evidence. 

Ai'PEAL  from  the  Fifth  District  Court. 

II.  M.  Vories,  witli  liiin  B.  F.  Loan  and  S.  Woochon,  for  appellant. 

Attorn eji-Oeneral  Johnson  and  Chaudler  &  Davis,  for  the  State. 

Wagxeu,  J,,  dolivorcd  tho  opinion  of  tlie  court. 

Tlie  defendant  was  indicted  in  the  Circuit  Court  of  Gentry  County, 
for  murder  in  tlie  fust  degree,  in  the  killing  of  Wm.  A.  Boyer,  and,  on 
a  change  of  venue  to  DeKalb  County,  he  was  sentenced  to  be  executed. 
The  killing  was  most  clearly  proved,  and  the  defence  was  rested  solely 
upon  the  ground  of  insanity.  The  only  question  presented  for  consid- 
eration is  the  propriety  of  certain  instructions  given  by  the  court,  of  its 
own  motion  and  at  the  request  of  the  prosecution,  and  also  certain  in- 
structions wliich  were  asked  by  the  defendant  and  refused. 

An  objection  is  raised  against  the  third  instruction  given  at  the 
instance  of  the  State,  because  it  told  the  jury  that  it  devolved  upon  tlu^ 
defendant  to  show  to  their  satisfaction,  by  a  clear  preponderance  of  tlic 
testimony,  that  he  was  insane.  The  earlier  decisions  in  this  court 
announce  the  doctrine  that  a  party  relying  on  insanit}'^  as  a  defence 
should  make  it  out  to  the  satisfaction  of  the  jury,  and  that  he  was  n(jt 
entitled  to  the  benefit  of  a  reasonable  doubt  as  to  his  sanity.  *  Bnt 
in  the  more  recent  case  of  State  v.  Klinrjer,-  the  question  was  again 
considered,  and  we  held  that  the  most  reasonable  rule  was,  that  as  ilie 
law  presumed  every  person  who  Lad  reached  the  age  of  discretion  to  be 
of  sufficient  capacity  to  be  responsible  for  his  crimes,  the  burden  of  es- 
tablishing the  insanity  of  the  accused  affirmatively  to  the  sjitisfaction  of 
the  jury,  on  the  trial  of  a  criminal  case,  rested  upon  the  defence  ;  but 
that  it  was  not  necessary  that  the  defence  should  be  established  beyond 
a  reasonable  doubt ;  it  was  sufficient  if  the  jury  were  reasonably  satisfied 
t)V  the  weight  or  preponderance  of  the  evidence  that  the  accused  was 
insane  at  tlie  time  of  the  commission  of  the  act.  It  seems  to  me  that 
the  court,  in  the  present  case,  by  requiring  a  clear  preponderance  of 
evidence,  introduced  a  qualification  that  was  not  enunciated  in  the 
Klinger  Case,  and  which  had  an  evident  tcndenc\y,  and  was  calculated, 
to  mislead.     Insanity  is  a  simple  question  ol;  fact,  to  be  proved  like  any 


1  state  V.  HuUng,  21  Mo.  464;  Stater.  Mc- 
Coy, 34  Mo.  5.'51. 


2  43  Mo.  127. 


sronceof  till- 

CBUltlng  ini- 
ly  remotely 
%B  if  it  uro8tt 

uncc. 


ippcUant. 
ate. 

/  County, 
r,  and,  on 
executed, 
ited  solely 
ur  consitl- 
urt,  of  its 
ertain  iii- 

n\  at  the 

upon  tlu^ 

ice  of  the 

;liis  court 

a  dcfoiu'c 

e  was  not 

ty.i     But 

vas  again 

lat  as  llie 

ion  to  be 

on  of  cs- 

nction  of 

ncc ;  but 

d  hcyt  md 

satisfied 
used  was 

mc  that 
irance  of 
\  in  the 
Iculated, 

like  any 


BUUDKX  or  rilOOF. 


411) 


Dnuikennes.s  as  a  Dufeiicu  to  Crime. 


other  fact,  and  any  evidence  which  reasonably  satisfies  the  Jiiry  tliat  the 
aecused  was  insane  at  the  time  the  act  was  c(»mmitte(l,  should  be  deemed 
siiindent. 

After  taking  into  consideration  and  overcoming  the  prosimiplion  of 
sanity,  it  is  not  perceived  why  any  higher  degree  of  evidence,  or  any 
greater  amount  of  proof  should  be  required  to  prove  the  fact  of  insanity 
than  any  other  question  which  may  be  raised  and  submitted  upon  the 
trial  of  a  cause.  The  correct  doctrine  is  that  all  symptoms  and  all  tests 
of  mental  disease  are  purely  matters  of  fact,  to  be  determined  hy  the 
jury;  and  that  evidence  which  reasonably  satisfies  the  jury  that  the 
disease  exists,  and  which  would  warrant  and  induce  a  verdict  upon  any 
other  issue,  ought  to  be  considered  suiHcient.  From  the  instruction,  the 
jiiiy  might  have  well  inferred  that  a  i)reponderanco,  or  what  would  rea- 
sonal»ly  have  satisfied  them,  was  not  enough,  but  that  something  more 
was  necessary. 

The  fourth  instruction,  given  at  the  request  of  the  State,  and  the 
third  instruction,  given  by  the  coui't  of  its  own  motion,  may  be  consid- 
ered together.  The  fii'st  of  the  two,  in  substance,  declared  that  the  vol- 
untary drunkenness  of  the  defendant,  so  far  as  the  same  was  shown  by 
evidence  to  have  existed  at  the  time  of  the  homicide,  was  no  mitigation 
of  the  crime  charged  ;  and  if  the  jury  believed  from  the  evidence  that 
tiie  defendant  was  Laboring  under  a  temporary  frenzy  or  insanity  at  the 
time  of  the  killing  of  Boycr,  which  was  tlien  and  there  the  immediate 
result  of  intoxicating  liquors  or  narcotics,  he  was  equallj' guilty  under 
the  law  as  if  he  had  been  sober  or  sane  at  the  time  of  the  killing.  The 
latter  instruction,  which  was  given  directly  by  the  court,  told  the  jury 
that  if  they  were  satisfied,  from  the  weight  or  preponderance  of  the 
whole  evidence,  that  at  the  time  the  defendant  killed  Boyer  he  was  so 
insane  as  not  to  know  right  from  wrong,  and  as  not  to  know  that  the 
aet  he  was  committing  was  wrong  at  the  time  of  its  commission,  and 
that  he  was  so  far  deprived  of  will  at  the  time  of  the  commission  of 
the  act  as  not  to  possess  the  power  of  choosing  between  right  and  wrong 
in  regard  to  the  act,  and  that  his  insanity  was  not  the  result  of  fits  of  in- 
toxication, but  was  occasioned  by  previous  habits  of  intoxication  and 
the  long  use  of  narcotics,  then  they  should  find  the  defendj  not 
guilty. 

It  is  well  settled  that  drunkenness  does  not  mitigate  a  crime.  Any 
otiier  principle  would  be  destruction  to  the  peace  and  safetj'  of  society. 
Every  murderer  would  drink  to  shelter  his  intended  guilt.  There  would 
he  an  end  of  convictions  for  homicide,  if  drunkeimess  avoided  respoiisl- 
hility.     As  it  is,  most  of  the  premeditated  murders  are  committed  under 


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420 


THE    UIKOEN    OK   rUOOF   OF    INSANITY. 


State  V.  Iluucllcy. 


the  stimulus  of  liquor.  "When  the  guilty  purpose  is  first  sedately  con 
ceived,  most  men  fortify  themselves  for  the  scene  of  blood  b}'  the  um 
of  intoxicating  drinks.  If,  therefore,  drunkenness  imparted  irrespon- 
sibility, there  would  be  no  convictions.  If  the  assassin  would  not  t;ik>' 
liquor  to  strengthen  his  nerves  he  would  to  evade  the  penalt}'  of  h\> 
crime.  ^ 

Temporary  insanity,  produced  immediatelj'^  by  intoxication,  does  not 
destroy  responsibility,  where  the  patient,  when  sane  and  responsilik'. 
made  himself  voluntarib/  drunk.  Sir  Edward  Coke  la3's  down  the  cum- 
mon-huv  rule  to  be,  that,  "as  for  a  drunkard  who  is  vohi)dariu> 
J'.cmon,  he  hath,  as  has  bi'cn  said,  no  privilege  thereby  ;  but  what  luii . 
c.  Ill  soever  he  docth,  his  drunkenness  dotli  aggravate  it,  omne  crinu  n 
eo'-'  ^'i"  et  incemlit  et  deterjit.'"  '  And,  although  it  is  doubtful  whctiioi 
it  can  be  said  that  drunkenness  aggravates  a  crime  in  a  judicial  sense. 
3'c\  t  i';  unquestioned  that  it  forms  no  defence  to  the  fact  of  guilt. 
Tnus,  Judge  Stoky,  after  noticing  that  insanity,  as  a  general  rule,  pro- 
duc(!a  irresponsibility,  went  on  to  say:  "An  exception  is  wiieie  the 
crime  is  committed  b3'  a  party  while  in  a  fit  of  intoxication,  the  law  nnt 
permitting  a  man  to  avail  himself  of  the  excuse  of  his  own  gross  vice 
and  misconduct  to  shelter  himself  from  the  legal  consequences  cf  siu  h 
crime."  3  Sir  Matthew  Hale,  in  his  "  Ili-story  of  the  Pleas  of  llic 
Crown,"  written  nearly  two  hundred  years  ago,  says:  '•  Th.;  third  kinl 
of  dementia  is  that  which  is  dementia  ciffectata,  namely,  d:unkenncss. 
This  vice  doth  deprive  men  of  the  use  of  reason,  and  puts  many  nun 
into  a  perfect  but  temporary'  frenzy  ;  and,  therefore,  according  to  some 
civilians,  such  a  pei'son  committing  homicide  shall  not  be  punished  sini- 
l)!y  for  the  crime  of  homicide,  but  shall  suffer  for  his  drunkenness,  an- 
swerable to  the  nature  of  the  crime  occasioned  thereby  ;  so  that  yet  tlie 
l)rimal  cause  of  the  punishment  is  rather  the  drunkenness  than  the  criuu' 
committed  in  it.  But  by  the  laws  of  England  such  a  person  shall  have 
no  privilege  by  his  voluntarily  contracted  madness."  He  then  state-; 
two  exceptions  to  the  rule,  one  where  intoxication  is  without  fault  on 
his  part,  as  where  it  is  caused  by  drugs  administered  by  an  unskilful 
physician;  and  the  other  where  indulgence  in  habits  of  intcmi)cran(  o 
has  produced  pennanent  mental  disease,  which  he  calls  ^'Jixed  frenzi/. ' '  ■' 

The  doctrine  and  the  distinction  laid  down  by  Ilale  have  beiMi  gvnerali\ 
followed  by  the  English  courts  and  in  this  ountry.  United  ^'<tat<s 
V.  Dreu!,^  and   United  States  x.  Me  Glue, '^^  will  l»e    found  to   maintaiu 


>  Wh.  &  St.  Me<l.  Jur..8CCt.  67;  1  Whart. 
Crini.  Law,  sect.  38;  State  r.  Cross,  27  Mo. 

=  Co.  Litt.  217. 


3  United  States  r. 
*  male,  P.  C.32. 
'  Supra. 
■0  1  Curtis  C.  C.  1. 


Drew,  5 Mason,  2s. 


DRUNKENNESS    AS    A    1)F    -XCE. 


421 


The  Law  in  u  ^  United  States. 


ilately  cdh- 
by  the  iim 
I  iiTespoii- 
icl  not  take 
lalty  of  hi.- 

n,  docs  IK  It 

espousiMc. 

n  the  ciiiii- 

voluhtariu> 

what  hur; 

>nne  crhncn 

ul  whet  hoi 

icial  sense. 

't  of   guilt. 

1  rule,  pm- 

where   the 

:he  hiw  u^t 

gross  vice 

X's  v{  such 

•AH   of    the 

third  kiutl 

nkenuess. 

nuuiy  uu'ii 

g  to  some 

ished  siiii- 

uess,  aii- 

lat  yet  the 

the  criiiu' 

shall  JKivt' 

icn  sl;ite> 

t  fault  on 

unskilful 

niperanio 

frenzy."  ■■ 

<i\)nei:ill.\ 

U'il   Glut's 

uKiintum 

son,  2S. 


the  principle,  upon  the  anthority  of  Judge  St(»i{t  and  Judge  CniTis,  of 
the  Supreme  Court  of  the  United  States.  These  last  two  cases  not  only 
state  the  general  principle,  but  confirm  the  distinction  announced  by 
Hale,  that  where  mental  disease,  or,  as  he  terms  it,  a  '''■fixed  frenzy, ^^ 
is  shown  to  be  the  result  of  drunkenness,  it  is  entitled  to  the  same  con- 
sideration as  insanity  arising  from  any  other  cause.  The  first  of  these 
was  a  case  of  delirium  tremens,  and  Judge  Stokv  directed  an  acquittal  on 
that  account.  In  the  other  the  evidence  left  it  doubtful  whether  the 
furious  madness  exhibited  bj'  the  prisoner  Avas  the  result  of  pi-esent  in- 
tuxication  or  of  delirium  supervening  upon  long  habits  of  indulgence, 
rpon  this  state  of  the  evidence  Judge  Ci'htis  stated  the  rule  and  the 
exceptions  with  remarkable  clearness  and  force. 

Prof.  Greenleaf,  whose  general  accuracy  in  the  statement  of  legal 
principle  is  unquestioned,  says  that  "  in  criminal  cases,  though  insanity, 
;is  we  have  just  seen,  is  ordinarily  an  excuse,  yet  an  exception  to  tliis 
rule  is  where  the  crime  is  committed  by  a  party  while  in  a  fit  of  intoxi- 
cation; the  law  no*:  permitting  a  man  to  avail  himself  of  the  cxcu-e  of 
his  own  gross  vice  and  misconduct  to  shelter  himself  from  the  legal 
cMUsequences  of  such  crime.  But  the  crime,  to  be  within  the  excep- 
tion, and  taerefore  punishable,  must  take  placf  and  be  the  immediate 
result  of  the  fit  of  intoxication,  and  while  it  la.sts,  and  not  the  result  of 
insanity  remotely  occasioned  by  previous  habits  of  gross  indulgence  in 
spirituous  liquors.  The  law  looks  to  the  immediate  and  not  the  remote 
cause  —  to  the  actual  state  of  the  party  and  not  to  the  causes  which 
remotely  produced  it."  ' 

The  instruction  given  at  the  instance  of  the  prosecution  told  the  jury 
that  if  they  believed  from  the  evidence  that  the  defendant  was  laboring 
lui'ler  a  temporary  frenzy  or  insanity  at  the  time  of  the  killing  of 
Boyer,  which  was  then  and  there  tlie  innnediate  result  of  intoxicating 
liijuors  or  narcotics,  he  was  guilty.  This  instruction  was  unobjection- 
al)lo,  for,  as  we  have  already  seen,  temporary  insanitj'  produced  imme- 
diately by  intoxication  does  not  desfroy  responsibility  where  the  accused, 
when  sano  and  responsible,  made  himself  voluntarily  drunk.  But  the 
crime,  to  be  punishable  under  such  circumstances,  must  take  place  and 
He  the  immediate  result  of  a  fit  of  intoxication,  and  while  it  lasts,  and 
not  the  result  of  insanity  remotely  occasioned  by  previous  bad  habits. 

The  subsequent  instruction,  given  by  the  court,  of  its  own  motion, 
was  unguarded,  open  to  misconstruction,  and  liable  to  mislead.  It  de- 
clared that  if  the  defendant  was  so  far  deprived  of  will  at  the  time  of 


'  2  Greenl.  on  Ev.,  sect.  374. 


422 


THE  iiuuDEX  or  rnooF  of  insanity. 


Statu  V.  Ilundk'V, 


tlie  commission  of  the  act  as  not  to  possess  tlie  p(>wcr  of  choosing  bctwctn 
riurht  and  wroncc,  ami  if  his  in^anitv  was  not  the  result  of  fits  of  iiitox- 
ication,  but  was  occasioned  by  previous  habits  of  intoxication  and  ihr 
long  use  of  narcotics,  then  tliey  should  find  him  not  guilty. 

Tlie  distinction  that  tlie  act  must  take  place  and  be  the  immcdintc 
result  of  the  fit  of  intoxication,  and  while  it  lasts,  in  order  to  renilo 
the  accused  responsible,  is  here  utterly  ignored.  The  insanity  niiuiit 
have  l)een  found  to  l)o  permanent,  and  still  the  result  of  fits  of  iiit(i\- 
ication  ;  so  that  it  acUially  existed  and  did  not  come  within  the  exci  p- 
tion  to  the  rule  rendering  the  crime  punishable,  it  could  make  no 
difference  Avhat  it  resulted  from.  The  two  instructions  are  inconsistent 
and  contradict(n'y.  The  one  laid  down  the  law  correctl}',  the  other  im- 
paired its  force,  and,  coming  as  it  did  directly  from  the  court,  was  cal- 
culated to  operate  injuriously  against  the  defendant. 

The  seventh  instruction,  upon  which  error  is  predicated,  is  as  follows: 
'•The  testimony  and  opinions  of  the  medical  witnesses  given  in  this 
case  should  be  received  by  the  jury  with  caution,  and  arc  entitled  to  l)ut 
little  weight  unless  sustained  by  reasons  and  facts  that  admit  of  no  niis- 
coustruction  ;  and  said  opinions  and  tcstimon}' arc  not  binding  on  yon 
against  your  own  judgment,  for  on  you  alone  rests  the  responsibility  of 
a  correct  verdict."  It  is  objected  that  this  instruction  is  a  comment  on 
the  evidence,  and  in  direct  conflict  with  the  provisions  of  the  statute. 
The  instruction  might  find  countenance  and  support  where  the  old  sj'sti m 
of  practice  prevails,  and  v.herc  it  is  permissible  for  the  court  to  mukf 
comments  on  the  e\idence,  and  instruct  the  jury  as  to  its  sufficiency  and 
weight.  But  under  our  statute  the  whole  rule  is  changed,  and  comments 
by  the  court  are  entirely  forbidden.  1  Since  the  adoption  of  this  clanst 
in  the  statute  the  ruling  has  been  uniform,  and  there  is  hardly  a  volniui' 
of  the  reports  in  which  it  is  not  laid  down  that  it  is  error  for  a  court  to 
instruct  a  jury  upon  the  weight  and  sufficiency  of  the  evidence.  Xt  is  for 
the  court  to  determine  upon  the  legitimacy  and  appropriateness  of  the  evi- 
dence, but  the  jury  are  the  sole  and  exclusive  judges  of  the  credit  and 
weight  that  is  to  be  attached  to  it.  For  a  court  to  single  out  certnin 
testimony  iu  a  cause,  and  tell  the  jury  that  it  is  entitled  to  either  great 
or  little  weight,  is  contrary'  to  the  statutory  provision  on  the  subject. 

The  testimony  of  medical  witnesses,  like  any  other  testimony,  should 
be  taken  into  the  account  b3'the  jury,  and  they  should  give  it  just  smli 
weight  as  they  may  think  it  deserves.  "Whilst  the  opinions  of  quacks, 
mountebanks,  and  pretenders  are  entitled  to  Httle  or  no  consideration, 
the  opinions  of  pei'sons  of  great  experience,  skill,  fidelity,  and  correct- 
ness of  judgment  deserve,  and  should  receive,  attention  and  respect. 

1  S  Wag.  Stat.,  nor,,  sect.  30. 


COUUT8    MUMT    NOT    IN'STKUCT   ON    FACTS. 


423 


Defence  of  Insauity  Should  be  Watched. 


In  speaking  on  this  sultject  the  late  Chief  Justice  Shaw  said :  "■The 
opinion  of  a  niedicul  man  of  small  experience,  or  of  one  who  has  cnuK- 
and  visionary  notions,  or  of  one  who  has  some  favorite  theory  to  sup- 
port, is  entitled  to  very  little  consideration.  The  value  of  such  testi- 
mony will  depend  mainly  upon  the  experience,  fidelity,  and  impartiality 
of  the  witness  who  gives  it."  ' 

In  the  examination  of  the  witnesses  it  is  the  privilege  and  duty  of  the 
counsel,  for  the  enliglitenraent  of  the  jury,  to  draw  forth  tlie  capabili- 
ties, fitness,  and  exi)ericnce  of  those  who  undertake  to  give  medical 
testimony,  lint  where  these  tests  are  applied,  and  the  court  decides 
that  tJie  evidence  is  competent,  the  jury  then  are  the  exclusive  judges, 
and  are  not  to  be  controlled  in  their  determination  by  the  advice  and 
instructions  of  anybody.  An  intelligent  jur}-,  after  hearing  the  wit- 
nesses, and  observing  tiieir  respective  capacity,  will  not  be  slow  in  com- 
ing to  a  correct  conclusion  and  awarding  such  consideration  as  the 
merits  or  demerits  of  the  evidence  may  deserve.  The  instruction  was 
an  invasion  of  the  province  of  the  jury,  and,  I  tliink,  clearly  wrong. 

There  is  no  attempt  to  deny  the  killing  in  this  case.  The  only  de- 
fence set  up  to  excuse  or  palliate  tlie  deed  of  violence  and  wrong,  is 
insanity.  This  question  is  at  all  times  difficult  to  deal  with,  and  it  would 
lie  wrong  to  p.nish  a  person  who  was  so  unfortunate  as  to  be  unac- 
countable by  reason  of  a  diseased  and  disordered  mind.  On  the  other 
liantl,  there  is  too  much  foundation  for  the  remark  of  Mr.  Baron  Guu- 
Ni:v,  on  the  trial  of  the  case  of  Rex  v.  Re'jnolds^  that  "the  defence  of 
insanity  has  lately  grown  to  a  fearful  height,  and  the  security  of  the 
imblic  re(iuires  that  it  should  be  closel}' watched."  Recent  examples 
liave  shown  that  guilty  criminals  have  escaped  merited  punishment  on 
this  assumed  plea,  and  have  been  turned  loose,  to  the  great  detriment 
and  outrage  of  justice. 

The  interests  of  society  and  the  welfare  of  the  community  require 
that  justice  should  be  faithfully  and  rigorously  administered.  On  tlie 
one  hand,  care  should  be  taken  that  no  one  be  punished  whose  aflliction 
renders  him  irresponsible ;  on  the  other,  the  defence  of  insanit}',  which 
is  easily  simulated,  about  which  there  are  many  crude  and  [jcrvert  no- 
tions, and  which  is  usually  resorted  to  when  all  other  defences  fail, 
should  l»e  scanned  with  the  severest  scrutiny.  The  court,  we  think, 
committed  error  in  regard  to  the  instructions  above  noticed  in  this 
opinion  ;  otherwise,  we  have  found  nothing  calling  for  special  comment 
or  revision. 

With  the  concurrence  of  the  other  judges,  the  judgment  will  be  re- 
versed and  the  cause  remanded  for  a  new  trial. 

'  Com.  ?■.  Rogers,  7  Mete.  500. 


424 


Tin:  nuKDKN  ui"  rijoui"  of  insanity 


Statu  V.  Uedt'iiU'iiT. 


burden  of   proof— particular    right   and  wrong   test- 
new  trial  — cumulative  evidence. 

State  v.  Redemeieu.' 

[71  Mo.  173,] 
In  the  Supreme  Court  of  ^fissouri,  October  Term,  1879. 


Hon.  Thomas  A.  Siikhwood,  Chief  Justice. 
"     Willi  A. M  IJ.  Nai-ton, 

"       WaHWICK    ll(»(<ill, 
"        Ei.I.IAII    II.  NoUTUN, 

"     John  W.  IIexky, 


Judges. 


1.  Burden  of  Proof.  — Tho  burden  of  proving  insanity  &»  a,  defence  toft  criminal  charge 
rests  on  tlic  prisoner.  To  establish  such  a  defence  evidence  is  necessary,  such  as  will 
reasonably  satisfy  the  jury. 

•2.  Particular  Bifrht  and  Wionfr  Test. —The  t-  t  of  the  prisoner's  responsibility  is 
whetlicr  he  was  capable  of  distiuguisliing  be*  en  right  and  wrong  in  respect  to  thf 
act  cliargbd. 

i.  A  new  trial  will  not  be  (granted  on  account  of  newly  discovered  OTidence  which  is 
cumulative. 

Appeal  from  St.  Louis  Court  of  Appeals. 

A.  X.  Jlerrick,  for  appellant. 

Smith,  Attorney  General,  for  the  State. 

NOKTOX,  J. 

The  (lefeiulant  was  indicted  at  the  July  term,  1878,  of  the  St.  Louis 
Criminal  Court  for  murtler  in  the  fust  degree,  for  killing  one  Franz 
\(tsz.  The  cause  was  tiied  at  the  November  term,  1878,  of  said  court, 
and  defendant  was  found  guilty  and  sentenced  to  be  hanged.  An  ap- 
peal was  taken  to  the  St.  Louis  Court  of  Appeals,  where  the  judgment 
of  the  Criminal  Court  was  allirmed,  and  from  which  defendant  has  ap- 
|)ealed  to  this  court.  The  fact  that  deceased  was  killed  by  the  defendant 
in  the  most  brutal  manner,  without  cause  or  excuse  is  not  dibputed,  but 
it  is  claimed  that  no  criminality  attaches  to  defendant  because  it  is  al- 
l.'iiod  that  he  was  insane  at  the  time  tlie  homicide  was  committed.  The 
insanity  of  defendant  was  the  only  defence  relied  upon  in  the  trial  couri. 
and  a  reversal  of  the  judgment  is  sought  mainly  upon  alleged  error  com- 
mitted by  the  court  in  its  charge  given  to  the  jury  and  in  refusing  to 
give  the  declarations  of  law  asked  by  defendant. 

The  charge  complained  of  is  as  follows :  — 

"As  a  defence  to  this  prosecution  the  defendant  by  his  counsel  has 
interposed  the  plea  of  insanity.     lie  says  that  the  act  which  he  is  al- 

'  Affirming  .State  r.  Redemeicr,  8Mo.  (App.)  1  1879. 


1(mJ 
in:! 
lavl 

an] 

hiij 

SnI 
\vJ 
i;ui 


TEST   OF    INSANITY. 


425 


Opinions  of  Exports. 


logcd  to  have  committed  is  not  an  act  for  which  he  can  be  held  crim- 
inally responsible,  in  other  words,  that  the  act  was  and  is  excusable  in 
law,  becau.'ic  at  the  time  of  its  commission,  as  charged,  he  was  insane. 

"The  term  insanity,  as  used  in  this  defence,  means  such  a  perverted 
and  derani^ed  condition  of  the  mental  and  moral  faculties  as  renders  a 
litTson  incapable  of  distinguishin<^  between  right  and  wrong,  and  makes 
him  unconscious  at  times  of  the  nature  of  the  act  he  is  about  to  commit. 
Such  insanity,  if  proved  to  the  reasonable  satisfaction  of  the  jury  to 
have  existed  at  the  time  of  the  eoniniission  of  the  act,  is  in  law  an  ex- 
cuse for  it,  however  brutal  or  atrocious  it  may  have  been. 

*'  The  law  presunies  every  person  to  be  of  sound  mind  until  the  con- 
trary is  shown,  and  when,  as  in  this  case,  insanity  is  interposed  as  a 
lU'fence,  the  fact  of  the  existence  of  such  insanity  at  the  time  of  the 
commission  of  the  offence  charged  must  be  established  by  the  evidence 
to  the  reasonal)le  satisfaction  of  the  jury,  and  the  burden  of  proving 
this  fact  rests  with  the  defendant. 

'*  The  oi)inion3  on  questions  of  insanity  which  have  been  given  by  tlie 
inotlical  experts  a'e  testimony  before  you,  and  are  subject  to  the  same 
rules  of  credit  or  discredit  as  the  testimony  of  other  witnesses.  The 
opinions  neither  establish  nor  tend  to  establish  the  truth  of  the  facts  upon 
which  they  are  based.  Whether  the  matter  testified  to  by  the  witnesses 
ill  the  cause,  as  facts,  are  true  or  false,  is  to  be  determined  b}'  the  jury 
alone.  Neither  are  the  Iiypothetical  rpiestions  put  to  the  medical  experts 
l)y  the  counsel  in  the  cause,  evidence  of  the  truth  of  the  matters  stated 
in  these  questions. 

"^Uthough  the  jury  may  believe  and  find  from  the  evidence  that  the 
flefendant  did  commit  the  act  charged  against  him,  yet,  if  they  fin-ther 
find  that,  at  the  time  he  did  so,  he  was  in  such  an  insane  condition  of 
mind,  that  he  could  not  distinguish  lietween  right  and  wrong,  then  such 
act  was  not  malicious,  and  the  jury  should  acquit  him  of  the  crime 
charged,  on  the  ground  of  insanit}',  and  so  say  in  their  verdict. 

"  To  establish  his  insanity  positive  or  direct  testimony  is  not  required. 
Circumstantial  evidence  which  reasonably  satisfies  the  minds  of  the  jury 
that  the  defendant  was,  at  the  time  the  alleged  shooting  was  done,  in- 
capable of  distinguishing  between  right  and  wrong,  or  of  comprehend- 
ing the  nature  of  the  act,  will  be  suHiciient. 

"  The  jury  are  the  sole  and  exclusive  judges  of  the  degree  of  credit 
which  shall  be  given  to  the  testimony  in  the  case,  and  have  the  right  to 
receive  and  credit  as  true,  or  to  reject  and  discredit  as  untrue,  the 
whole  or  any  part  of  tlie  testimony  of  any  witness  in  the  case.  If, 
after  the  jury  have  carefully  taken  into  account  and  considered  all  the 


426 


TIIK    ULUUEX    OF   PItOOF   OF    IX.SAXITV 


.Stilt f  r.  Hi'deiiK'icr. 


evidence  in  tiic  case,  there  remains  in  tlieir  minds  a  reasonable  doiilit 
of  the  guilt  of  the  defendant,  tlie  law,  in  its  humanity,  gives  to  him  tin 
benefit  of  that  doubt,  and  they  should  acfiuit.  But  to  authorize  an  lu  - 
quittal  on  the  ground  of  doubt  alone,  such  doubt  shouhl  be  reasonaMc 
and  subst.'intial,  and  not  a  mere  guess  or  conjecture  of  his  *  probalik' 
innocence.'  " 

The  objections  urged  to  the  above  charge  are  tliat  it  does  not  proji- 
erly  define  insanity,  and  that  the  rule  as  to  tiie  burden  of  proof  wlun 
the  defence  is  insanity,  and  the  degree  of  proof  sullicient  to  authorize 
a  jury  to  find  insanity,  are  not  correctly  stateil.  Testing  these  o])Ji(- 
tions  by  repeated  decisions  of  this  court,  it  will  be  found  that  the}'  luv 
not  well  taken.  These  decisions,  we  think,  clearly  establish  that  tin 
law  presumes  everj'  person  who  has  reached  the  years  of  discretion,  to 
be  of  sound  mind  and  capable  of  committing  crime,  and  that  such  a 
person,  charged  with  the  commission  of  crime,  before  he  can  escape 
the  penalty  aflixed  thereto,  under  the  plea  of  insanity,  must  rebut  sudi 
presumption,  by  evidence  which  reasonably  satisfies  the  jury  that  lie 
was  insane  at  the  time  the  act  was  committed,  or  that  his  mind  was  so 
diseased  as  to  render  him  incapable  of  distinguishing  between  right  and 
^rong  in  respect  to  the  act  for  which  he  is  sought  to  be  made  crimin- 
ally responsible ;  that  the  question  of  insanity  is  one  of  fact,  to  be  (U- 
termined  by  the  jury,  and  that,  when  the  unlawful  killing  is  provetl  iiy 
the  State  or  admitted  by  the  accused,  the  State  maj'  rest  ui)on  the  legal 
l)resumption  of  the  sanity  of  the  accused  till  he  shows  the  contrary : 
that  the  burden  of  proving  insanity  rests  upon  the  party  setting  il  up, 
and  that,  to  discharge  himself  of  this  burden,  it  is  not  necessary  to  in- 
troduce evidence  which  establishes,  beyond  a  reasonable  doubt,  his  in- 
sanity, but  only  sufficient  to  reasonably  satisf}-  the  jury  that  it  existid 
at  the  time  the  offence  was  committed;  tiiat  if  the  preponderance  of 
the  evidence  offered  establishes  insanity,  it  is  sufficient. ^  In  the  ca>f 
of  State  \.  3/('Co^v,- it  was  held  "  that  it  is  incumbent  on  the  State  to 
prove  every  fact  necessary  to  establish  the  crime  of  murder,  whi'h 
necessarily  includes  the  sanity  of  the  prisoner;  but  the  burden  of  prov- 
ing such  sanity  of  the  prisoner  is  fully  met  by  the  presumption  of  law 
that  every  person  is  of  sound  mind  until  the  contrary  appears  ;  and  lie 
who  undertakes  to  escape  the  penalty  of  the  law  by  means  of  the  ploa 
of  insanity  must  rebut  such  presiunption  by  proof  entirely  satisfactory 


1  Baldwin  v.  State,  12  Mo.  22:? ;  State  v. 
ITuting,  21  Mo.  464 ;  State  v.  McCoy,  34  Mo. 
631;  State  v.  Klinger,  43  Mo.  127;  State  r. 
Hundley,  46  Mo.  414;  State  v.  Suiit}),  58  Mo. 


267;  State  v.  Holme,  54   Mo.  153;  State  f 
Slinms,  68  Mo.  305. 
s  Supra. 


ial)lc  (loiiiii 
to  hiin  tilt 

)rizo  an  lu  - 
reasonalilf 

I  '  prubtiliic 

3  not  proii- 

)roof  wlu'ii 

o  authori^'.r 

lese  ol)J(t- 

lat  the}'  iiiv 

ih  that  tip 

3cretioii,  lu 

that  such  11 

can  escape 

rebut  siuli 

iiy  that  ln' 

lind  was  so 

n  riglit  anil 

ade  criiiiiii- 

t,  to  be  di'- 

)rovecl  ny 

)n  the  logiil 

contrary : 

tting  it  up, 

isary  to  in- 

bt,  his  in- 

it  existiil 

erant'c  of 

tlie  CUM' 

»e  State  to 

ler,  whi'h 

n  of  prov- 

on  of  hiw 

s ;  and  1k' 

)f  the  plen 

:itisfactt)ry 

153;  state  r 


INSTRUCTIONS    AS    TO    TKST    OF    INSANITY 


42^ 


Hiinlon  of  Proof. 


til  the  jury.  It  is  a  defence  to  be  juade  out  by  tlie  prisoner,  and  by 
pi'iiof  that  will  satisfy  tiie  Jury  that  he  was  iucapalili?  of  dislinguisliing 
lietwccn  right  and  wrong."  The  instructions  of  tlic  court  as  to  the 
liurtlen  of  proof  of  insanity  and  tlio  quanlhin  of  evidence  to  estabhsli 
it  are  justified,  not  only  by  the  case  last  cited,  but  by  all  the  cases 
hereinbefore  cited. 

It  is  also  insisted  that  the  capacity  of  defendant  to  distinguish  be- 
tween right  and  wrong  wiis  the  only  test  laid  down  by  the  court  in  its 
( linrgc  for  the  guidance  of  the  jury  in  determining  tlic  question  of  in- 
sanity, and  that,  for  this  reason,  it  is  erroneous.  If  the  charge  means 
tliat,  and  nothing  more,  the  court  would  have  been  authorized  to  give  it 
under  the  authority  of  the  case  last  cited,  and  2  (Jreenleaf  Ev.,'  licv  v. 
MiXitr/hten,~  Hex  v.  Off'onL'^  Common iveafth  v.  Moslei\*  Freeman  v. 
People.^  But  we  think  the  construction  jilaced  Ity  counsel  on  the  in- 
struction is  too  narrow,  and  tiiat  the  capacity  of  defendant  to  distin- 
'iiiish  between  right  and  wrong  was  not  the  sole  and  only  test  by  which 
the  jury  were  to  be  governed  in  determining  the  criminal  responsibility 
('!'  defendant,  because  they  were  expressly  told  that,  if  defendant  was 
incapable  of  comprehending,  or  was  unconscious  of  the  nature  of  the 
•ict  at  the  time  he  CK)mmitted  it,  they  would  accjuit. 

It  is  also  earnestly  and  ably  argued  by  counsel  that  the  rule  as  to  the 
<legree  of  evidence  necessary  to  establish  insanity,  as  adopted  in  this 
"^tate,  should  be  modified  and  made  to  conform  to  the  rule  laid  down  in 
die  case  of  fiitate  v.  Cnavfoi'iIS'  and  other  cases  in  Illinois,  Indiana,  and 
New  Hampshire,  of  which  the  case  of  Stntev.  Cnivthrd  is  a  t3'pe.  The 
rule  approved  in  that  case  is  that,  whenever  the  defence  offers  evidence 
whieh  raises  a  reasonable  doulit  as  to  the  insnnitj'  of  the  accused,  that 
is  sulTicient  to  rebut  the  presumption  of  sanity  and  to  authorize  an  ac- 
'luiltal. 

As  to  the  degree  of  evidence  which  the  accused  is  required  to  offer 
to  establish  the  fact  of  insanity,  the  authorities  are  so  conllicting  as  to 
lie  irreconcilable.  It  is  held  by  some  courts  of  the  highest  authority, 
both  in  this  country  and  England,  that  insanity,  when  set  up  as  an  cx- 
euse  for  the  crime  charged,  should  ])e  established  by  evidence  sufficient 
to  satisfy  the  minds  of  the  triers  of  the  fact  beyond  a  reasonable  doubt, 
that  it  existed  at  the  time  the  act  was  committed.  The  conclusion 
reached  in  this  class  of  cases  is  based  upon  the  theory  that,  in  every 
criminal  case,  two  presumptions  of  law  are  indulged  —  one  in  favor  of 


'  Sect.  373. 

"■  10  n.  &  Fin.  200. 

^  5  C.  &  i'.  108. 


*  4  Pa.  St.  2.;' 
'  4  Denio,!). 
•>  11  Ka8.  32. 


428 


THE   BURDEN   OF   PROOF   OF   INSANITY. 


State  V.  Itidcmc'lLT. 


the  person  charged,  that  ho  is  innocent  of  tlie  char<i;c — tlio  otlu'r  in 
favor  of  tl»e  pul)lic,  that  tlie  aecusetl,  if  of  the  years  of  discretion,  is 
iif  souml  mind  and  c'a|)al)le  of  committing  crime,  and  that  as  tlie  pn- 
sinnption  of  innocence  protects  tiie  accused  till  tho  State,  by  evidence, 
establislics  his  guilt  beyond  a  reasonable  doubt,  so  the  presumption  tiiat 
he  yvna  sane  when  the  act  was  committed,  protects  society  till  it  is  over- 
thrown by  a  like  degree  of  evidence  offered  in  support  of  the  plea  of 
insanity. 

While  some  cimrts  have  gone  to  this  extreme,  others  of  high  autiiority 
have  gone  to  tiie  other  extreme  of  holding  tiiat  to  supijort  tiie  pica  ot 
insanity  it  is  only  necessary  that  the  evidence  offered  should  be  sullicicnt 
to  raise  a  doubt  as  to  the  insanity  of  the  accused.  Other  courts,  e(iually 
authoritative  and  much  greater  in  number,  acting  on  the  principle  that 
1)1  vii'dio  tntinsimns  est,  have  adopted  a  rule  lying  between  these  two 
extremes,  holding  that  the  defence  of  insanity  is  established  when  the 
evidence  offered  in  support  of  it  preponderates  in  favor  of  the  fact,  and 
reasonably  satisfies  the  jury  that  it  existed  at  the  time  tiie  criminal  ad 
charged  was  committed.  Tlie  rule  last  referred  to  has  been  the  estali- 
lislied  law  of  this  State  since  the  case  of  Baldirin  v.  State  •  wa.>, 
decided,  and  l)elieving  that  it  is  sustained  not  only  liy  reason,  but 
by  the  weight  of  authoritv,  both  in  this  country  and  Kngland,  we  are 
unw''!ing  to  make  a  departure  from  it.  The  fact  that  insanity  is  so 
easily  simulated  demonstrates  the  wisdom  of  the  rule  and  affords  a 
strong  reason  why  we  should  adhere  to  it,  and  decline  to  adopt  the  rule 
contended  for  by  defendant's  counsel,  the  tendency  of  which,  in  my 
judgment,  would  be  to  stimulate,  rather  than  repress,  homicidal  mania. 
It  follows  from  what  has  lieen  said  that  the  charge  given  to  the  jury  on 
behalf  of  the  State  is  not  subject  to  the  objections  urged  against  it,  and 
it  also  follows  that  the  court  properly  refused  the  instructions  of  defend- 
ant, which  asked  the  court  to  lay  down  a  rule  for  the  guidance  of  the 
jury  in  determining  the  question  of  insanity,  at  variance  with  the  rule 
above  announced  as  settled  in  this  State.  The  instructions  asked  by 
tk'fendant  in  regard  to  the  test  to  be  applied  in  determining  the  insanity 
of  defendant  having  been  already  substantially  given,  were  for  that 
reason  properly  refused. 

It  is  also  urged  that  the  judgment  should  be  reversed  because  the 
verdict  of  the  jury  wa^-  against  the  evidence,  and  because  the  prepon- 
derance of  the  evidence  established  the  insanity  of  the  defendant.  The 
claim  that  such  preponderance  existed  is  based  upon  the  facts  that  the 


'  Supra. 


STATK    V.  KKDKMKIEU. 


429 


KvIiK'Hcc  It)  Show  Motive. 


(■vidence  (li<l  not  discloso  nn  mlequatc  jiujUvo  for  llu'  coininissiou  of  the 
l,(imi<'iilL' ;  that  (U'l-easi'd  was  killed  in  ii  public  .stivet  in  the  iirc's»t'nt'i' 
(if  several  witni-s.se.s  ;  that  defendant  was  indifferent  to  the  consi'ciuences 
of  his  crime,  and  made  nu  effort  to  escape,  and  previous  to  the  homicide 
would  freciucntly  sit  for  an  hour  or  more  at  a  time  without  cntjaLMng  in 
conversation.  While  the  absence  of  motive  n»ay  be  considered,  in 
citnnection  with  the  other  facts,  in  reachinjj;  a  conclusion  as  to  whether 
defendant  was  or  was  not  insane,  it  by  no  means  follows  from  the  mere 
fact  that  the  evidence  offered  fell  short  of  discovering?  a  motive,  that  a 
motive  did  not  in  fact  exist,  locked  up  in  the  breast  of  the  accused. 
That  defendant  was  operated  upon  l>y  some  motive  in  killing  deceased 
may  be  deduced  from  the  circumstances  in  evidence,  that  about  two 
years  before  the  homicide,  deceased  went  into  a  saloon  where  several 
persons  were  present,  defendant  being  one  of  the  number,  and  invited 
all  but  the  defendant  to  drink  with  him,  at  which  defendant  took  um- 
l)rage,  and  bad  some  "  words  "  with  the  deceased.  That  this  slight  or 
insult  took  root  in  the  breast  of  defendant  is  evident  by  the  statement 
made  by  hira  immediately  after  the  homicide  when  (lucstioned  about  it, 

that,    "I  had  it  in  for  the  son  of  a  b h  for  the  last  two  years;  I 

could  have  got  even  with  him  a  year  ago,  but  I  didn't  do  it ;  but  to-day 
I  got  a  good  chance  pad  I  took  that  chance  with  powder  and  ball." 

Besides  this  three  ph3'sicians  were  examined  on  the  trial.  One  of 
them,  introduced  on  behalf  of  defendant,  testified  that  he  had  never 
made  insanity  a  specialty,  })uthad  treated,  in  a  practice  of  twenty  years, 
forty  or  fifty  persons  of  unsound  mind ;  that  he  had  made,  since  the 
homicide,  personal  examination  of  defendant,  and  from  his  examination 
and  so  much  of  the  evidence  as  he  had  heard,  he  was  of  the  opinion  that 
defendant  was  insane.  The  other  two  physicians  were  introduced  on 
the  part  of  the  State.  One  of  them.  Dr.  Bauduy,  testified  that  he  wa-^ 
a  professor  in  a  medical  college  of  diseases  of  the  mind  and  nervous 
system,  and  had  been  for  fourteen  years  in  charge  of  St.  Vincent's 
Lunatic  Asylum,  and  for  that  period  of  time  had  from  one  hundred  and 
fifty  to  five  hundred  patients  under  his  dail}'  care  ;  that  it  was  his  con- 
stant occupation  to  be  with  the  insane,  and  that  he  had  made  the  study 
of  insanity  and  diseases  of  the  nervous  system  specialties.  The  other. 
Dr.  Hughes,  testified  that  he  had  for  eleven  years  made  the  study  of 
insanit}'  a  specialty,  and  for  about  six  3'ears  of  that  time  had  been  in 
charge  of  the  State  Insane  Asylum,  at  Fulton,  and  had  treated  three 
thousand  insane  patients.  A  question  in  writing,  stating  a  hypothetical 
case  embracing  all  the  material  evidence  submitted  on  either  side,  was 
put  to  these  witnesses,  and  they  were  recpicsted-to  base  their  opinion 


430 


Tin:  iiiHDKN  or  I'ifoor  (ir  insaxitv. 


Statu  V.  Rc'iU'iiiL'iiT. 


upon  till'  facts  stated  in  Uic  (jucstion  as  to  the  insanity  of  the  tlcfcndnnt  :it 
tlie  time  lie  killiMl  the  tleceasi'd.  Dr.  Bandiiy  answered  that,  hasi;):: 
his  oi>ini(»n  solely  tijjon  the  hypothetical  case,  it  was  that  at  the  time  <  f 
the  commission  of  the  lioniicide  the  defendant  was  sane,  and  aftrr  giving: 
bis  scientilic  reasons  for  his  conclusions  added:  "  I  sec  in  that  hy,()- 
thetical  case  no  scintillaof  insanity  whatever."  l)r.  IIu<rhes,  in  ans\\,i 
to  the  question,  also  gave  it  as  his  opinion  tha(.  the  accused  was  sane  :it 
the  time  I  he  homicide  was  committed.  We  have  held  that  in  criminal 
cases,  where  it  clearly  appears  that  the  verdict  is  against  the  weight  of 
evidence,  this  court  would  interfere  to  set  it  aside.  But  in  this  cast'. 
after  a  careful  examination  of  the  evidence,  we  cannot  say  that  the  ver- 
dict is  against  the  weight  of  evidence  and  will  not  therefore  interfere. 

The  newly  discovered  evidence  set  out  in  the  motion  as  a  ground  for 
a  new  trial  being  entirely  cumulative,  the  motion  was  properly  overruleil 
for  that  reason.  Perceiving  no  error  either  in  giving  or  refusing  in- 
structions or  in  admitting  or  rejecting  evidence,  the  judgment  is  aJlirmci' 
in  which  Judges  Shekwooo,  II(H<iii  and  Naiton  concur,  and  Judge 
IIexuv  dissents. 

IlESitv,  J,  dissenting. 

I  cannot  concur  in  tlie  foregoing  opinion,  and  will  brieflj'  state  niy 
reasons  for  dissenting.  The  allegation  that  defendant  wilfully,  deliber- 
ately and  premeditatedly  committed  the  homicide  for  which  he  is 
indicted,  includes  the  allegation  that  he  had  a  mind  capable  of  will- 
ing, deliberating  and  premeditating.  Wilfulness,  premeditation 
and  deliberation  are  constituent  elements  of  murder,  and  none 
but  a  sane  person  can  commit  that,  or  any  other  crime.  Homicide 
is  not  necessaril}'  a  crime,  for  one  may  kill  in  self-defence,  or  by 
accident,  or  in  a  state  of  mental  aberration.  If  the  State  prove  the 
killing,  she  is  not  also  required  to  prove  that  it  was  not  in  self-defence, 
or  not  the  result  of  accident ;  but  when  defendant  has  proven  enough 
to  raise  a  reasonable  doubt,  whether  it  was  in  self-defence,  or  acci- 
dental, the  State  must  show,  not  by  a  mere  preponderance  of  evidence. 
but  beyond  a  reasonable  doubt,  that  it  was  not  accidental  or  in  self- 
defence;  and  it  is  dillicult  to  perceive  a  reason  why  the  same  principle 
is  not  equally  applicable  to  the  issue  of  sanity  made  by  the  plea  of  not 
guilty.  It  is  true  that  the  law  presumes  every  one  to  be  sane,  ami. 
therefore,  the  State  is  not  required  to  introduce  evidence  of  the  sanity 
of  the  accused  except  in  rebuttal.  The  sanity  of  defendant  is  as  much 
in  issue  as  the  homicide  ;  and  although  the  law  presumes  certain  facts  to 
exist  when  certain  other  facts  are  proven,  yet  in  a  criminal  case,  when 
the  fact  presumed  is  disproved,  or  sullicient  evidence  is  adduced  to 


itl 

tlf 


8TATK    V.  KKDF.MKIKI!, 


4:u 


Dlssi'iitlny  Ojiliilcin  of    Iliiiry,  .1. 


wMiTniit  a  rcttsionble  doiibt  of  ifn  oxistoiu-o,  tho  prostimption  coasios. 
Til  siiy  timt  only  !i  sane  piTHoii  can  Itc  <rnilty  ami  declare  the  law  to  Ito 
tliMt  the  State  ninst  estalili>ii  difenchint's  jrnilt  l»cyon<l  a  reaHoiialih' 
ilMilit,  and  yel  tliat  unless  defcnilant  eslalilishes  his  insanity  ]»y  a  i)re- 
IMiiiderance  of  evidence,  the   jury  shonld  convict,  is  a  palpable  conlra- 
ili<'lion.     If  one  accused  of  nundcr  a<linit  the  homicide  and  alle{j;e  tliat 
it  was  an  accident,  it  is  fur  hinj  to  make  that  appear,  but  if  lu»  introduce 
e\  ideiice  tending  to  prove  that  f at  t  suillcient  to  ]»ejxet  in  the  minds  of 
llio  jury  a  reasonable  doubt  that  thi'  l\illin<j  was  intentional,  the  iiencfil 
nf  that  doubt  ho  is  entitled  to  by  law.     Wbat  is  tho  substance  of  the 
(li'fenee  in  either  case?     Simply  that,  althouuli  tho  homicide  was  com- 
mitted by  the  defendant,  his  mind  did  not  concur  in  the  act ;  and  yet  in 
the  case  of  the  one  who  admits  his  sai'!  v,  he  has  the  bencIlL  of  a  ica 
snnable  doid>t  that  the  act  had  the  assent  of  his  riind,  while  it  is  urged 
till;  the  othir  who  alleges  his  insanity  shall  .lot  have  the  benefit  of  a 
reasonable  d  >ubt,  but  nuist  prove,  by  a  (ireponderanco  of  evi<lence,  a 
state  of  facts  showing  that  tho  mind  did  not  concur.     The  distinction 
lias  no  riasonable  foundation  for  its  support.     If  a  jin-v  are  to  acquit 
on  a  reasonable  doubt  of  defendant's  guilt,  and  one  cannot  be  guilty  if 
insane,  by  what  process  of  reasoning  will  a  jury,  having  a  leasonaolc 
doubt  of  defendant's  sanity,  come  to  the  conclusion  that  they  shouM 
convict,  notwithstanding  the  ''nstruction  that  a  n  asnnable  doulit  of  his 
iriiilt  entitles  him  to  an  acciuittal?     A  man  whose  thinking  is  not  rcgu- 
lati'd  by  artificial  rules  would  not  hesitate  to  acquit  under  such  circum- 
stances, and  it  would  require  a  most  refined  and  ingenious  argument  to 
ilcnionstrate  to  him  that  ho  could  convict  without  disregarding  that  in- 
struction.    But  it  is  said  that  the  law  presumes  him  sane,  and  that  this 
presumption  deprives  the  accused  of  the  benefit  of  a  reasonable  doubt 
as  to  his  sanity.     The  one  proposition  is  based  upon  the  fact  that  san- 
ity is  the  normal  condition  of  the  human  mind,  and  that  insanity  is  ex- 
ceptional and  abnormal.     The  other  presumption  is  in  favor  of  life  and 
liberty.     The  former  presumption  has  no  effect  but  to  relieve  the  State, 
in  the  first  instance,  from  making  any  proof  on  tho  subject,  holding  thnt 
the  fact  that  the  accused  is  a  human  being  dispenses  with  proof  of  his 
sanity,  because  that  is  the  normal  condition  of  human  beings.     It  sim- 
ply reverses  tho  order,  not  the    burden   of   proof.     It  presumes  tlu; 
accused  sane,  but  requires  him  to  make  no  more  iiroof  of  his  Insanity 
than  of  any  other  fact  which  he  relics  upon  for  his  actpiittal  of  the  crime 
lie  is  charged  with.     The  one  presumption  does  not  destroy  the  otjker, 
as  to  any  fact  which  must  be  found  to  exist  in  order  to  a  conviction.     I 
cite  no  authorities  in  support  of  these  propositions,  but  they  are  numer- 
ous a. id  respectable. 


432 


THE    BUUDEN    OF   TUOOF   OF   INSANITY 


Locffncr  v.  Stato. 


BURDEN    OF    PROOF  —  TEST  —  Pr  K A    OF    NOT    GUILTY  —  RIGHT    TO 

OPEN  AND  CLOSE. 

LOEFFNER   V.    StATE. 

[10  Ohio  St.  51)8.] 

In  the  Supreme  Court  of  Ohio,  December  Term,  1857. 

lion.  TiiOMA.s  W.  Bahtlky,  Chief  Justice. 

"       J()SK1'1[   R.    SWAX,  -k 

"        jACOllBUIXIvKItllOKF,    I 

"      JosiAii  Scott, 
"     Milton  Sutlikf, 


Judges. 


1.  Plea  of  NotOuilty— Defence  of  Insanity— BiRht  to  Open  and  Close.  —  The  dc 

fence  of  insanity  unilur  the  plea  of  not  guilty  does  not  entitle  the  defendant  to  thf 
opuuing  and  closing  argument  to  the  jury. 

i.  Particular  Rigbt  and  Wrong  Test. —  A  person  who  has  reason  sufficient  to  distinguish 
between  right  and  wrong  and  to  understand  the  nature  of  the  act  is  luinishabh-. 

3.  Burden  of  Proof.  —  The  burden  of  iiroving  the  defence  of  insanity  to  the  satisfaction  of 
the  jury  rests  on  the  prisoner. 

EuKou  to  the  Court  of  Common  IMcas  of  Hamilton  County. 

The  prisoner,  Joseph  Loeffner,  was  indicted  for  killing  with  a  knife 
on  July  21,  1857,  one  Nicholas  Ilorton. 

At  the  trial,  the  defence  set  ui)  on  behalf  of  the  defendant  was,  "  not 
guilty,  l)y  reason  of  insanity." 

On  behalf  of  the  State,  testimony  was  given  in  regard  to  the  com- 
mission of  the  homicide  by  the  defendant,  and  to  prove  him  guilty,  as 
charged  in  the  indictment.  On  behalf  of  the  defendant,  testimony  was 
given  to  sustain  the  defence  of  insanity.  Rebutting  testimony  was 
given  on  behalf  of  the  State. 

After  the  conclusion  of  the  testimony,  the  defendant's  counsel  moved 
the  court  to  allow  them  to  open  and  close  the  argument  to  the  jury,  they 
holding  the  affirmative  of  the  issue  made  by  the  plea  of  "not  guilty, 
by  reason  of  insanity."  The  court  overruled  this  motion,  and  counsel 
for  the  defendant  excepted. 

In  charging  the  jury,  the  court  used  the  fo  lowing  language  touching 
the  plea  of  insanity. 

"  The  defendant,  Joseph  Loeffner,  through  his  counsel,  pleads  thnt 
he  is  not  guilty  of  killing  Nicholas  Horton,  in  manner  and  form  as  set 
forth  by  the  State,  by  reason  of  insanity.  His  counsel  claim  that  he 
was  an  insane  man   at  the  time  of  the  commission  of  the  act,  and. 


UGIIT   TO 


B.  — The  de 
udant  to  tin- 

5(listingulsli 
able. 

tisfactiou  of 


1  a  knife 

as,  "  not 

le  com- 
fuilty,  as 
lony  was 
ony  was 

1  moved 

iiy,  tliey 

guilty, 

counsel 

ouching 

.ds  that 
as  set 
that  he 
t,  and, 


LOEFFNER    V.  STATE. 


433 


Instructions  of  the  Court. 


th  refore,  an  iiTesponsil)le  Iteini;;  irresponsiI)le  to  the  law  fur  murder 
ill  tlie  first  or  second  degree,  or  for  the  crime  of  manslaughter.  Was. 
then,  Joseph  Loeffner  insane  and  irresponsible  to  the  law  at  the  time  he 
eonmiitted  the  act  of  which  the  State  complains? 

"  If  you  resolve  tiiis  important  question,  after  a  full  investigation  :ind 
consideration  of  the  testimony  in  the  aflirmative,  the  defendant  must 
l)e  acquitted  on  the  ground  of  insanity,  and  in  sncli  a  case  yotu*  verdict 
will  be:  '  We,  the  juiy,  find  the  defendant  not  guilty,  by  reason  of  in- 
siinity.'  But  here  your  most  earnest  and  careful  attention  is  reciuired 
Look  at  all  the  evidence  touching  this  issue.  You  Avill  examine  all  the 
lU'tailed  evidence  touching  iq)on  the  subject,  and  permit  not  your  minds 
to  be  carried  away  by  loose  inferences  or  cureless  deductions.  The 
lilea  of  insanity  is  an  afHrraativc  issue  of  the  dt-fendant.  lie,  bj--  his 
counsel,  sa^'s  that  he  is  not  guilt}',  because  he  was  insane  at  the  time 
(if  the  commission  of  the  act.  llis  counsel  are  therefore  called  upon 
to  invjvo  this  fact,  and  to  prove  it  aflfirmativelv.  It  was  formerly  held, 
indeed  up  to  within  very  recent  time,  that  this  issue  being  thus  affirma- 
tively made  by  defendant  or  his  counsel,  must  be  proved  beyond  a 
reasonable  doubt,  holding  the  defendant  to  as  strict  proof  of  insanity 
as  the  State  is  held  when  she  makes  a  charge  against  the  defendant. 
Hut  perhaps  it  would  be  going  too  far  to  lay  down  this  doctrine  in  so 
stric.'t  sense,  as  the  law  now  exists  with  us  upon  this  subject,  at  least,  '  in 
favor  of  life.'  The  great  dilflculty  upon  this  subject  is  our  M-ant  of 
knowledge ;  and  the  policy  of  the  law  is  to  let  no  iimocent  man  be  con- 
demned, or  let  no  guilty  man  escape  punishment;  jet  that  policy 
<ays,  rather  let  the  guilty  go  free  than  subject  the  innocent  or  irrespon- 
sible to  punishment.  But  you  must  observe  this  in  examining  this 
question,  you  must  consider  it  important,  both  for  the  protection  of  the 
(-■omrainiity  and  the  safety  of  the  innocent;  and  let  me  lay  down  to  you 
tliese  principles  of  the  law:  — 

"1.  Every  individual  charged  with  the  commission  of  a  ci-ime  or  an 
offence,  is  presumed  to  be  sane,  if  over  the  age  of  childhood.  Ever}- 
individual  charged  with  the  crime  of  murder,  over  the  age  of  infancy 
I  r  childhood,  is  presumed  to  be  sane  until  the  contrary  is  shown,  when 
ilie  plea  o:.  insanity  is  set  up. 

"■  2.  When  the  plen,  is  preferred,  the  burden  of  proving  insanity  rests 
upon  the  part  of  the  defendant.  He  must  prove  it  affirmatively.  But 
it  is  for  the  jiuy  to  conclude  upon  the  proof  offered;  and  if,  on  due 
<'onsideration,  they  are  convinced  by  the  proof,  upon  weight  of  evi- 
dence, that  insanity,  in  its  legal  sense,  existed  at  the  time  of  the  com- 
28 


434 


THE    IJLKUEN    OF   I'UOOF   OF    IN.SAMTV 


LoiffiiiT  r.  State. 


mission  of  the  :ict,  it  will  be  their  duty,  at  least  in  favor  of  life,  so  to 
fnid. 

"  To  apply  these  principles  to  this  ease:  Joseph  Locffner,  by  the  law. 
at  c  time  of  the  crime  charged,  is  presumed  to  have  been  sane,  and  tn 
!)e  fully  responsilile  for  the  consequences  of  his  own  acts.  If,  however, 
front  a  full  and  cartful  examination  of  all  the  testimony  of  the  case,  in 
its  weiuht  and  character,  the  conclusion  is  (ixed  upon  your  minds  that 
the  defendant  was  ins:nie  at  the  time  of  the  commission  of  the  act. 
then  it  is  your  duty  to  find  in  favor  of  insanity.  Butwhatis  theinsaniiv 
about  which  you  are  abont  to  pronounce  your  judgment?  For  upon 
this  point  your  i)athway  nnist  be  made  clear  by  the  law.  Insanit}',  in- 
deed, exists  in  so  man}'  shapes  and  forms,  has  so  many  varied  insignia 
and  manifestations,  that  it  is  almost  impossible  for  science  to  compre- 
hend it  or  gi\-e  it  intelligible  defuiition.  The  learned  and  the  unlearned 
differ  about  it ;  what  is  insanity  to  one  is  not  so  to  another.  The 
classes,  species,  and  modifications  are  not  well  iniderstood  by  any  of  us. 
learned  or  otherwise.  It  seems,  indeed,  as  indefinite  in  extent  as  mind 
itself.  Then,  how  shall  we  determine  the  responsibility,  on  this  suli- 
ject,  of  man  to  the  law?  The  policy  of  the  law  ought  to  fix  it  as  far 
as  it  can,  and  the  law  does  fix  it.  Insanity,  in  its  general  legal  sense, 
is  the  inability  or  incapacity  to  disting'ush  between  right  and  wrong,  as 
applied  to  particular  cases  of  crime ;  it  is  the  inability  or  incapacity  to 
distinguish  between  right  and  wrong,  or  the  want  of  knowledge  of 
right  and  wrong  as  to  the  particular  act  committed.  If,  in  the  com- 
mission of  a  criminal  act,  the  capacity  of  distinguishing  l)etween  right 
and  wrong  is  overcome  or  destroyed,  or  the  knowledge  of  such  a  dis- 
tinction is  buried  in  oblivion,  such  a  fact  would  make  a  perpetrator 
irres;)onsible.  We  will  adopt  the  language  of  Chief  Justice  Shaw,  in 
the  Ab)ier  Jiogers'  Case,  '  that  in  order  to  constitute  a  crime,  a  man  must 
have  intelligence  and  capacity  enough  to  have  a  criminal  intent  anil 
purpose,  and  if  his  reason  and  mental  powers  are  either  so  deficient  that 
he  has  no  will,  or  conscience,  or  controlling  mental  power  ;  or  if  through 
the  overwhelming  violence  of  mental  disease,  his  intellectual  power  i->, 
for  the  time,  obliterated,  he  is  not  a  responsible  moral  agent,  and  is  iii>t 
punished  for  criminal  acts.'  And  tiie  court  here,  gentlemen  of  the 
jury,  in  this  connection,  will  adopt  further  the  language  and  sentiment- 
of  the  learned  judge:  "  But  a  man  is  not  to  be  excused  from  responsi- 
bility if  he  has  capacity  and  reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong,  as  to  the  particular  act  he  is  then  doing ;  a 
knowledge  and  consciousness  that  the  act  he  is  doing  is  wrong  an! 
criminal,  and  may  subject  him  to  punishment.     In  order  to  be  respun.^i- 


LOEFFNKU    r.  STATE. 


435 


Inst  met  ions  of  tlie  Court. 


ifc,  so  to 

y  tho  law. 
le,  andto 
lujwevcr. 
e  case,  in 
liiuls  tli:ii 
f  the  act. 
einsanily 
For  upon 
saiiit}',  lu- 
ll insigniii 
0  compic- 
unleariud 
lier.     The 
any  of  us. 
,t  as  mind 
this  suli- 
it  as  I'tu' 
;al  sense. 
wrong,  as 
ipaeity  to 
vlcdge  of 
the  com- 
cen  right 
eh  a  dis- 
M'petrator 
Sha\v,  in 
man  must 
itent  ami 
cientthat 
througli 
)owcr  is, 
nd  is  not 
u  of  the 
ntinient- 
•esponsi- 
stinguish 
doing;  a 
ong  i\\)>\ 
espon:?!- 


l)le.  he  must  have  sufficient  jiower  of  memory  to  recolleet  tiie  relation  in 
wiiieh  he  stands  to  others,  and  to  wiiicli  others  stand  to  him;  tliat  tiie 
Met  he  is  doing  is  contrary  to  the  plain  dictates  of  justice  an<l  right, 
injurious  to  others,  and  a  violation  of  the  dictates  of  duty.  On  tlie 
contrary,  although  he  may  be  laboring  muler  partial  insanity,  if  he  still 
understands  tl'.o  nature  and  character  of  liis  act,  and  its  conseiiueuces, 
if  lie  has  a  knov/ledge  that  it  is  wrong  and  criminal,  an*'  ji  mental  power 
sntfieient  to  apply  that  knowledge  to  his  own  case,  and  to  kncnv  that  if 
he  does  the  act  he  will  do  wrong,  and  be  liable  to  punishment,  such 
partial  insanity  is  not  sullicient  to  exempt  him  from  responsibility  for 
criminal  acts.' 

"And  further  we  say  for  the  purpose  of  enlightening  you  upon 
this  subject,  we  will  quote  from  12  Ohio,'  the  language  of  Judge 
BnioiiAKu  in  the  case:  '  Was  the  accused  a  free  agent  in  forming  tht; 
p'.wpose  to  kill?  "Was  he  at  the  time  the  act  was  committed  cai)able  of 
judging  whether  that  act  was  right  or  wrong?  And  did  ho  know,  at 
the  lime,  that  it  was  an  offence  against  the  laws  of  God  and  man?  If 
you  say  nay,  he  is  innocent;  if  yea,  and  you  find  the  killing  to  Iiavc 
l)een  purposely,  with  deliberate  and  premeditated  malice,  he  is  guilt}-. 
In  trying  this  question,  you  will  bear  in  mind  that  the  law  presumes 
every  person  of  the  age  of  fourteen  years  or  upward,  to  be  of  sufllcient 
capacity  to  form  the  criminal  purpose,  to  delibeiate  and  premeditate 
ui)on  the  act  which  malice,  anger,  hatred,  revenge,  or  other  evil  dis- 
position might  im{)el  him  to  perpetrate.  To  defeat  this  legal  presump- 
tion, which  meets  the  defence  of  insanity  at  the  threshold,  the  mental 
alienation  relied  upon  by  the  accused  must  be  alHrmatively  established 
by  positive  or  circumstantial  proof;  you  must  be  satisfied  from  the 
evidence  that  the  perverted  condition  of  the  faculties  of  the  mind  in- 
dicated in  the  main  question,  which  I  have  already  stated  as  excusing 
from  crime,  did  exist  at  the  time  Sells  was  killed.  It,  is  not  sufllcient, 
if  the  proof  barely  shows  that  such  a  state  of  mind  was  possible  ;  nor 
is  it  sufllcient  if  it  merely  shoAvs  it  to  have  been  probable.  The  proof 
must  be  such  as  to  annul  the  legal  presumption  of  sanity ;  it  must 
satisfy  you  that  he  was  not  sane.  It  would  be  unsafe  to  let  loose  upon 
society  great  offenders  upon  mer«  theory,  hypothesis,  or  conjecture. 
A  rule  that  would  produce  such  a  result  would  endanger  community 
by  creating  a  means  of  escape  from  criminal  justice  which  the  artful 
and  experienced  would  not  fail  to  embrace.  The  defence  of  insanity  is 
not  uncommon.     It  is  by  no  means  a  new  thing  in  a  court  of  justice. 

1  Clark  V.  Stnte,  p.  4!M. 


436 


THE    UUUDEN    OF   PROOF   OF    INSANITY. 


LocffiiiT  i\  stall" 


It  is  a  <lc'fcnc'0  ofti'ii  attomptod  to  l)o  made,  more  especially  in  eases 
where  Mffsriavated  oriines  have  been  connnittefl  under  eireunistanees 
Avhieh  jifford  full  proof  of  the  overt  aet,  and  render  hopeU-ss  ul)  other 
means!  of  avoiding  punishment.  While,  then,  the  plea  of  insanity  is  to 
bo  regarded  as  a  not  less  fidl  and  complete  than  it  is  a  humane  defence 
when  satisfactorily  established,  and  Avhile  you  should  guard  against  in- 
flicting the  penalty  of  crime  upon  the  unfortunate  maniac,  you  should 
be  equally  careful  that  yon  do  not  suffer  an  ingenious  counterfeit  of  the 
malady  to  furnish  i)rotection  to  guilt.' 

"  So,  gentlemen  of  the  jury,  in  a  thorough  examination  of  the  testi- 
mony, apply  these  i)rinciples  touching  this  subject  of  ins.initj'.  Was 
Josei)h  Loeffner,  at  the  time  of  the  homicide  of  Nii-holas  Ilorton,  capa- 
ble of  judging  between  riglit  and  wrong?  Had  he  the  knowledge,  at 
the  time  the  act  was  committed,  of  right  and  wrong  as  to  the  act  itself? 
Did  he  know,  at  the  time  of  the  fatal  stab  in  the  body  of  the  deceased, 
that  he  was  committing  crime?  Was  his  knowledge  and  cai)acity  oblit- 
erated in  the  dethronement  of  reason  at  the  time  of  the  homicide? 
These  questions  arc  for  you  to  settle  ;  and  if  you  find  that  he  could  not 
distinguish  between  right  and  wrong ;  that  his  mental  jwwers  were  de- 
stro^'cd — his  reason  gone — you  will  find  him  insane.  If,  on  the  coii- 
tr.iry,  you  find  that  he  did  know  that  his  act  was  wrong,  that  it  was 
criminal,  then  no  matter  what  may  have  been  his  di-pravity  of  nature, 
his  feebleness  of  intellect,  his  want  of  capacity  or  the  degradation  of 
his  morals,  his  act  was  a  homicide  for  which  he  is  responsible  to  the 
law,  according  as  you  find  the  degree  of  guilt. 

•'  In  examining  the  testimony  touching  upon  these  grave  ami  impor- 
tant (luestions  of  insanity,  it  will  be  necessary  for  3'ou  to  consider  all 
the  circumstances  of  the  commission  of  the  act  itself.  Do  these  show 
the  act  to  be  one  of  a  rational  being  who  knew  what  he  was  about  — 
who  knew  that  it  was  wrong  so  to  do,  and  who  knew  he  must  be  respon- 
sii.le  for  the  consequences?  Did  he  act  in  such  a  way  as  convinces 
3-our  minds  that  it  was  the  act  of  a  sane  mind?  Was  the  act  produced 
in  such  a  way  as  a  murderer  Avould  accomplish,  or  was  it  the  act  of  an 
insane  being,  according  to  the  law?  Take  also  into  consideration  all 
that  has  been  testified  to  in  reference  to  his  history  —  how  he  lived  in 
Germany  ;  his  boyhood  ;  the  condition  of  his  maternal  parent ;  how  he 
came  to  this  country ;  his  conduct  and  behavior  when  here  ;  his  mar- 
riage ;  his  conduct  to  his  wife  ;  the  homicide  of  his  wife  ;  his  conduct 
to  ]\Ir.  Ilorton  and  family ;  his  conversation  ;  his  deportment  before,  at 
the  time  and  after  the  commission  of  the  crime.     Examine  with  care 


liW.llT   TO    Ol'EX    AND    (  Lusi: 


137 


Test;    IJiirdcii  of  I'roof. 


y  111  fnr,('.s 

lllllstilllCOS 

i  all  otiu  r 
iinity  is  (o 
10  di'foiicc 
ijiainst  i li- 
on slloiilil 

ffitoftlK' 

tlic  testi- 
fy. \\'ns 
on,  capa- 
•lodgo,  ill 
ict  itself? 
Icceased, 
!ity  oblit- 
onilcide? 
3oiil(l  not 
were  de- 
tlic  coii- 

flt    it  WiXH 

■  natnre, 
at  ion  of 
e  to  tile 

1  impor- 
sider  all 
se  show 
ibont  — 
respon- 
Jiivinccs 
rod need 
,'t  of  ail 
ition  all 
lived  ill 
how  he 
is  mar- 
jondnct 
fore,  at 
th  care 


tlio  opinions  of  Ids  acqnaintancos  as  to  his  sanity ;  scrntinize  well,  too, 
the  oiiinions  of  the  learned  physicians ;  and  you  must  regard  these 
oiiinions  of  acquaintances  and  pliysicians  as  opinions  merely.  Thev 
nre  not,  in  themselves,  positive  testimony,  though,  from  the  necessity 
of  the  case,  they  are  introduced  and  allowed  for  what  light  they  may 
throw  upon  the  condition  of  the  defendant.  Test,  then,  these  opinions, 
and  give  your  imdivided  attention  to  the  facts  upon  the  subject.  It  is 
for  you  to  find  the  truth,  and  in  your  verdict  so  to  say." 

"  The  jury  found  the  defendant  guilty  of  murder  in  the  first  degree, 
in  manner  and  form  as  charged  in  the  indictment;  and  sentence  of 
death  was  passed  upon  the  prisoner.  To  reverse  the  sentence  a  writ  of 
error  was  prosecuted, 

Jlassaurerk  &  Elliott  and  Wm.  L.  Spooner,  for  plaintiff  in  error. 

C.  P.   Wolcott,  Attorney-General,  for  the  State. 

lUUTLKY,  C.  J. 

(After  passing  on  other  objections.) 

7.  In  the  trial  of  an  indictment  for  murder,  the  tlefence  of  insanity 
under  the  plea  of  not  guilty,  does  not  change  the  nature  of  the  issue  so 
as  to  give  the  affirmative  to  the  defendant,  and  entitle  the  defendant  to 
tlie  opening  and  closing  argument  to  the  jury. 

8.  The  accused  in  a  criminal  case  is  not  entitled  to  an  acquittal  on 
the  ground  of  insanity,  if  at  the  time  of  the  alleged  offence  he  had 
capacity  and  reason  enough  left  to  enable  him  to  distinguish  between 
right  and  wrong,  and  understand  the  nature  of  his  act,  and  his  relation 
to  the  party  injured. 

9.  As  the  law  presumes  every  person  who  has  reached  the  age  of 
discretion  to  be  of  sufficient  capacity  to  be  responsible  for  crime*  the 
burden  of  establishing  the  insanity  of  the  accused  affirmatively  to  the 
satisfaction  of  the  jury,  on  the  trial  of  a  criminal  case,  rests  upon  the 
defence.  It  is  not  necessary,  however,  that  this  defence  be  established 
beyond  a  reasonable  doubt;  it  is  sufficient  if  the  jury  is  reasonably 
satisfied,  by  the  weight  or  preponderance  of  the  evidence,  that  the 
accused  was  insane  at  the  time  of  the  commission  of  the  act. 

Judgment  of  the  Court  of  Common  Pleas  affirmed. 
Swan  and  Scott,  JJ.,  concurred;  Brinkerhoff  and  Sutuff,  JJ., 
dissented  on  other  grounds. 


438 


THE    BURDKX   OF   TROOF   OF    INSANITY 


Ort Weill  v.  ('Diiiiiioiiwt'iUtli. 


BURDEN  OF  PROOF  —  QUANTUM  OF  PROOF  REQUIRED. 
OrTWEIX     V.    COJIMON'WEALTH. 

[7G  Pa.  St.  414.] 
Li  the  Supreme  Court  of  Pennsi/Ivania,  January,  1875. 

Burden  of  Proof  —  Quantum  of  Proof  Required.  —On  the  trial  of  an  Indictment  for 
murder,  where  tlie  defence  is  tliat  tlie  |>risoncr  was  insane  a4  !.hc  time  ho  comnutlcil 
the  act,  it  is  not  siillicient  to  raise  a  doubt  in  the  minds  of  tlie  jury  as  to  whether  tin- 
prisoner  was  sane,  but  tlie  evidence  must  be  such  as  satislles  the  minds  of  the  jury  lli;ii 
he  was  in  fact  insane. 

Eunou  to  the  Court  of  Oyer  and  Terminer  of  Alleghany  County. 

Agnew,  C.  J.,  doHvered  the  opinion  of  the  court. 

The  chief  question  in  this  case  arises  under  the  fifth  point  of  the. pris- 
oner, which  was  negatived  by  the  court  below.     II  !s  this  :  — 

5.  If  the  jury  have  a  reasonable  doubt  of  the  sanity  of  the  prisonoi- 
at  the  time  of  the  killing,  they  cannot  convict. 

The  indu.strj'"  of  the  able  counsel  of  the  prisoner,  has  collected  and 
classified  many  cases  on  this  point.  While  we  think  their  weight  accoi'(l> 
with  our  own  conclusions,  we  cannot  help  perceiving,  in  their  number 
and  variety,  that  the  decision  of  the  question  should  rest  rather  oa  a 
sound  basis  of  principle,  than  on  the  conclusions  of  other  courts.  In 
order  to  apprehend  the  true  force  of  the  principles  to  be  applied,  we 
must  keep  in  the  foreground  the  facts  of  the  case  before  any  question 
of  insanity  can  arise.  Insanit}-  is  a  defence.  It  presupposes  the  proof 
of  the  facts  which  constitute  a  legal  ciime,  and  is  set  up  in  avoidance 
of  punishment.  Keeping  in  mind,  then,  that  an  act  of  wilful  and  mali- 
cious killing  has  been  proved  and  requires  a  verdict  of  n:'.iider,  the 
prisoner,  as  a  defence,  avers  that  he  was  of  unsounu  .1  :•:  the  time 
of  the  killing,  and  incapable  of  controlling  his  will ,  t  .i-'  ;  -..'refore  tiiat 
ho  is  not  legally  responsible  for  his  act.  This  is  the  •  Am  view  that 
the  statute  itself  takes  of  the  defence,  in  declaring  the  duty  of  the  jury 
in  respect  to  it.  The  sixty-sixth  section  of  the  Criminal  Code  of  31st 
of  March,  18G0,  taken  from  the  act  of  1830,  provides:  "  In  every  case 
in  which  it  shall  be  given  in  evidence,  upon  the  trial  of  any  person 
charged  with  any  crime  or  misdemeanor,  that  such  person  was  insane  at 
the  time  of  the  commission  of  such  offence,  and  he  shall  be  acquitted, 
the  jury  shall  be  required  to  find  specially  whether  such  person  was 
insane  at  the  time  of  the  commission  of  sucli  offence,  and  declare  whether 
he  was  acquitted  by  them  on  the  ground  of  such  insanity."     Thus  the 


BUUDEN   OF    I'HOOF. 


4ai> 


Jury  imist  bu  "  Siitisliod  "  of  Insanity, 


ED. 


Klictmeiu  for 
ho  coinmitU'il 
)  wheihcr  llic 
(the  jury  that 


)imty. 

)f  the.pris- 

e  prisoner 

lectcd  ami 

lit  accord- 

ir  iiumlur 

ther  on  a 

iirts.     Ill 

)plied,  vi> 

r  question 

the  proof 

avoidance 

and  mali- 

idcr,  tlio 

:  the  tinio 

fore  that 

view  that 

the  jiny 
e  of  31si 
k'ery  case 
y  person 
insane  at 
cquittcd, 
son  was 

whctlier 
"hus  the 


vi-rdict  must  find  the  fact  of  insanitj',  and  that  the  acquittal  is  because 
the  fact  is  so  found.  The  law  then  provides  for  the  proper  custody  of 
the  insane  prisoner.  This  being  the  provision  of  the  statute,  it  is  evi- 
lU'ut  tliat  a  jury,  before  finding  the  fact  of  insanity  specially,  must  lie 
satisfied  of  it  by  the  evidence.  A  reasonable  doubt  of  the  fact  of  in- 
.saiiity,  cannot,  therefore,  be  a  true  basis  of  the  finding  of  it  as  a  fact, 
and  as  a  ground  of  acquittal  and  of  legal  custody.  To  doubt  one's 
sanity  is  not  necessarily  to  be  convinced  of  his  insanity.  It  has  been 
said  in  a  nearly  analagous  case,  "  as  to  whether  a  I'casonable  doubt 
shall  establish  the  existence  of  a  plea  of  self-defence,  I  take  the  law  to 
he  this:  If  there  be  a  reasonable  doubt  that  an'j  offence  has  l>een  com- 
mitted by  the  prisoner,  it  operates  to  acquit.  But  if  the  evidence 
clearly  establishes  the  killing  by  the  prisoner,  purposely,  with  a  deadl}' 
weapon,  an  illegal  homicide  of  some  kind  is  established,  and  the  burden 
then  falls  upon  the  prisoner,  and  not  on  the  Commonwealtli,  to  show 
that  it  was  excusable  as  an  ict  of  self-defence.  If,  then,  his  extenua- 
tion is  in  doubt,  he  cannot  be  acquitted  of  all  crime,  but  must  be  con- 
victed of  homicide  in  some  of  its  grades  —  manslaughter  at  least."  ^ 
Such  also  was  the  opinion  of  the  late  Chief  Justice  Lkwi!«,  a  most  excel- 
hiit  criminal  law  judge  (in  the  trial  of  John  Haggerty),  when  i)resi- 
dent  of  Lancaster  County  Oyer  and  Terminer,  in  the  year  1S47.2  He 
said:  3  "The  jury  will  decide  upon  the  degree  of  intoxication,  if  any 
existed,  and  upon  the  existence  of  insanity.  The  burden  of  proof  of 
this  defence  rests  upon  the  prisoner;  the  fact  of  killing,  under  circum- 
stances of  deliberation  detailed  in  this  case,  being  estal)lished,  the  insan- 
ity which  furnishes  a  defence  must  be  shown  to  have  existed  at  the  time 
the  act  was  committed.  The  evidence  must  be  such  as  satisfies  the 
minds  of  the  jury."  Thus,  according  to  both  statutorj'  and  judicial  in- 
teri)retation,  the  evidence  to  establish  insanity  as  a  defence,  must  be 
satisfactory  and  not  merely  doubtful. 

If  we  now  analyze  the  subject,  we  shall  find  that  this  is  the  only  safe 
conclusion  for  society,  while  it  is  just  to  the  prisoner.  Soundness  of 
mind  is  the  natural  and  normal  condition  of  men,  and  is  necessarily  pre- 
sumed, not  only  because  the  fact  is  generall}'  so,  l)ut  because  a  contrary 
presumption  would  be  fatal  to  the  interests  of  societ}'.  No  one  can 
justly  claim  irresponsibility  for  his  act  contrarj'  to  the  known  nature  of 
the  race  of  which  he  is  one.  He  must  be  treated  and  be  adjudged  to  be 
a  reasonable  being  until  a  fact  so  al)normal  as  a  want  of  reason  positively 


'  Commonwealth  v.  Dunn,  58  Pa.  St. 


2  4  Clark,  187. 

3  U.  S.  Crim.  Law,  p.  406. 


440 


THE  BURDEN  OF  PROOF  OF  INSANITY. 


Ortwcin  v.  Coinmonwenlth. 


appears.  It  is,  therefore,  not  unjust  to  him  that  he  should  be  so  con- 
clusively presumed  to  be  until  the  contrary  is  made  to  appear  on  his 
behalf.  To  be  made  su  to  appear  to  the  tribunal  determining  the  fact, 
the  evidence  of  it  must  be  satisfactoxy  and  not  merely  doubtful,  tis 
nothing  less  than  satisfaction  can  determine  a  reasonable  mind  to  be- 
lieve a  fact  contrary  to  the  course  of  nature.  It  cannot,  therefore,  be 
said  to  bo  cruel  to  the  prisoner  to  hold  him  to  the  same  res[)onsibil- 
ity  for  his  act,  as  that  to  which  all  reasonable  beings  of  his  race  tuc 
held,  until  the  fact  is  positively  proved  that  he  is  not  reasonable.  This 
statement  derives  additional  force  from  the  opinion  of  Chief  Justice 
Gibson  in  the  case  of  the  CommoHtoealth  \.  Mosler,^  trxod  before  hiui 
and  Justice  Bell  and  Coutler,  in  Philadelphia,  and  rjuoted  from  in 
Lewis. ^  ''Insanity,"  he  says,  "  is  mental  or  moral,  the  latter  being 
sometimes  called  homicidal  mania,  and  properly  so.  A  man  may  be 
mad  on  all  subjects,  and  then,  though  he  may  have  a  glimmering  of 
reason,  he  is  not  a  responsible  agent.  This  is  general  insanity;  but  if 
it  be  not  so  great  in  its  extent  or  degree  as  to  blind  him  to  the  nature  ami 
co'isequences  of  his  moral  duty,  it  is  no  defence  to  an  accusation  of  crime. 
It  must  be  so  great  as  entirely  to  destroy  his  perception  of  right  and  Avrong, 
and  it  is  not  until  that  perception  is  thus  destroyed  that  he  ceases  to  be  re- 
sponsible. It  must  amount  to  delusion  or  hallucination  controlling  his 
will,  making  the  commission  of  the  act,  in  his  apprehension,  a  duty  of 
overruling  nercooity."  Again,  "partial  insanity  is  confined  to  a  par- 
ticular subject,  bei'ig  sane  on  every  other.  In  that  species  of  madness 
it  is  plain  that  he  is  a  responsible  agent  if  he  were  not  instigated  by  his 
madness  to  perpetrate  the  act.  He  continues  to  be  a  legitimate  subject 
of  punishment,  although  he  may  be  laboring  under  a  moral  obliquity  of 
perception,  as  much  so  as  if  he  were  merely  laboring  under  an  obliquity 
of  vision."  And  again,  "  the  law  is,  that  whether  the  insanity  be  gen- 
eral or  partial,  the  degree  of  it  must  be  so  great  as  to  have  controlled 
the  will  of  its  subject  and  to  have  taken  from  him  the  freedom  of  moral 
action."  Thus,  all  the  utterances  of  the  chief  justice  on  this  subject 
are  positive  and  emphatic,  and  allow  no  room  for  doubts,  or  merely 
negative  expressions. 

And  if  this  reasoning  were  even  less  than  conclusive,  the  safety  of 
society  would  turn  the  scale.  Merely  doubtful  evidence  of  insanity 
would  fill  the  land  with  acquitted  criminals.  The  moment  a  great  crime 
would  be  committed,  in  the  same  instant,  indeed  often  before,  would 
preparation  begin  to  la}-^  ground  to  doubt  the  sanity  of  the  perpetrator. 


^  4  Pa.  St.  204. 


:  U.  S.  C.  L.  403,  404. 


TliU 


|fety  of 
^sanity 
;  crime 
I  would 
Itrator. 


THE    INSANITY   PLEA    CRITICISED. 


441 


Diiniior  of  PLTinittinjr  a  Sniall  Dcyrrcc  of  l'ri>of. 


The  more  enormous  and  horrible  tlie  crime  tlie  less  credible,  by  reason 
of  its  enormity,  would  be  the  evidence  in  support  of  it;  and  proportion- 
ately weak  would  be  the  required  proof  of  insanity  to  acquit  of  it. 
Even  now  the  humanity  of  the  criminal  law  opens  many  doors  of  escape 
to  the  criminal.  Then  a  wider  do'  r  would  be  opened  by  :he  doubtful 
l)roof  of  insanity  made  still  more  open  by  the  timidity  or  jurors,  their 
loose  opinions  on  this  subject  of  punishment,  and  their  common  error 
that  the  punishment  is  the  consequence  of  their  finding  the  truth  of 
the  facts,  instead  of  the  consequence  of  the  commission  of  the  crime  it- 
self. The  danger  to  society  from  the  acquittals  on  the  ground  of 
doubtful  insanity,  demands  a  strict  rule.  It  re(iuires  that  the  minds 
of  the  triers  should  be  satisfied  of  the  fact  of  insanity.  Finally,  we 
think  this  point  has  been  actually  rided  by  this  court  in  the  case  of 
Lynch  v.  CoMmouwealtli,  decided  at  Pittsburg  in  1H73.  The  prisoner's 
second  point  was  in  these  words:  "That  if  the  jury  had  a  reason ai tie 
doubt  as  to  the  condition  of  the  defendant's  mind  at  the  time  the  act 
was  done,  he  is  entitled  to  the  benefit  of  such  doubt,  and  they  cannot 
convict."  The  court  below  said  in  answer:  "  The  law  of  the  State  is, 
that  where  the  killing  is  admitted,  and  insanity  or  want  of  legal  respon- 
sibility is  alleged  as  an  excuse,  it  is  the  duty  of  the  defendant  to  satisfy 
the  jury  that  insanity  actually  existed  at  the  time  of  the  act,  and  a  doubt 
as  to  such  insanity  will  not  justify  a  jury  in  acquitting  upon  that 


ground." 


This  ruling  was  sustained. 


BURDEN  OF  PROOF  — "MORAL  INSANITY" —EVIDENCE —ATTEMPT 

AT  SUICIDE. 

CoYXE  V.  Commonwealth. 

[lOOPa.  St.  573.] 
In  the  Supreme  Court  of  Pennsylvania^  1882. 

1.  Burden  of  Proof.  —It  is  error  to  instruct  the  jury  that  insanity  must  be  proved  by 

"  cleiirly  preponderating  "  evidence.    It  is  only  necessary  that  the  evidence  supporting 
it  should  "  fairly  preponderate." 

2.  "  Moral  Insanity  "  criticised. 

3.  Evidence  of  Insanity.  —  An  attempt  at  suicide  raises  no  presumption  of  insanity. 

I  Lynch  r.  Com.,  77  Pa.  St.  205. 


442 


TIIK    IIUUDKN    Ul'    I'lJOUr    OF    INSANITY. 


Covk'  V.  I'ominoiiwi'alth. 


Ekko;*  to  the  court  of  Oyer  and  Tonniner  of  York  County. 

Mkuccr,  J.,  delivered  the  opinion  of  the  court. 

It  was  dearly  proved  tliat  Coyle  killed  Emily  flyers.  That  fact  i> 
admitted.     The  only  defence  set  up  is  that  be  was  insane  at  the  time. 

The  first  specification  assigned  for  error  is  that  in  referring  to  lunui- 
cidal  insanity  the  court  cited  approvingly  a  portion  of  the  language  of 
Mr.  Chief  Justice  Giusox,  in  Commonicealth  v.  Nosier,^  in  which  it  is 
said :  "  There  may  be  an  unseen  ligament  pressing  on  the  mind,  drawinL*^ 
it  to  consequences  which  it  sees  but  cannot  avoid,  and  placing  it  under 
a  coercion,  which  while  its  results  are  clearly  perceived,  is  incai)alili'  of 
resistance.  The  doctrine  which  acknowledges  this  mania  is  danirerou< 
in  its  relations,  and  can  be  recognized  only  in  the  clearest  cases.  It 
ought  to  be  shown  to  have  been  habitual  or  at  least  so  have  evinced 
itsiclf  in  more  than  a  single  instance." 

The  able  argument  of  counsel  has  failed  to  convince  us  that  this  was 
not  .1  correct  declaration  of  tlie  law,  or  that  it  has  since  been  ruled 
otherwise  by  this  court. 

The  validity  of  such  a  defence  is  admitted,  but  the  existence  of  sucli 
a  form  of  mania  must  not  be  assumed  without  satisfactory  proof.  C  are 
must  be  taken  not  to  confound  it  with  acts  of  reckless  frenzv.  When 
interposed  as  a  defence  to  the  commission  of  high  crime,  its  existence 
should  be  clearly  manifest.  Such  defence  is  based  on  an  unsound  stati 
or  condition  of  the  mind  proved  by  the  acts  and  declarations  of  vio- 
lence. It  certainly  is  uot  requiring  too  much  to  hold  that  it  shall  lie 
shown  in  more  than  a  single  instance.  "We  know  no  later  case  in  this 
State  where  the  [)recise  question  has  been  ruled  otherwise. 

The  second  specification  relates  to  the  effect  which  shall  be  given  to 
the  attempt  of  the  prisoner  to  take  his  own  life.  This  attempt  was 
made  immediately  after  he  had  fired  the  shots  which  caused  the  death  of 
his  victim.  The  language  objected  to  was  not  in  answer  to  any  point 
submitted,  but  appears  in  the  general  charge.  The  court  said:  "It 
appears  proper  to  say  to  you,  as  a  matter  of  law,  that  even  if  yon 
believe  the  prisoner  really  intended  to  take  his  own  life,  this  would  not 
be  of  itself  evidence  of  insanity.  It  would  only  be  a  circumstance  in 
the  case  to  be  considered  by  you  in  connection  with  other  facts  and 
circumstances,  for  the  purpose  of  enabling  you  to  determine  the  mental 
condition  of  the  prisoner.  The  fact  of  the  attempted  suicide  raises  no 
presumption  of  insanity." 

The  court  was  dealing  with  the  question  of  attempted  suicide  only, 


1  4  Pft.  St.  '2(54. 


ATTEMIT    AT   iSl  I(  IDK    NOT    PUooT    UK    I.\>AMTV 


44.} 


Kvick'iicf  of  Insanity  Xi-otl  Not  ♦'Cltaii.v  l'rt|ionil('raU ." 


riiat  fact  is 
t  the  time, 
iig  to  homi- 
angiiage  of 
which  it  is 
id,  Urawin<j 
iig  it  undci 
icapfililc  of 
daiiirerous 
cases.  It 
ve  ovinccil 

it  tliis  was 
been  ruled 

ce  of  sucli 
oof.  (are 
py.  When 
existence 
ound  state 
ns  of  vio- 
it  shall  lie 
ise  in  this 

e  given  to 

enipt  was 

e  death  of 

any  point 

aid:   "It 

en  if  you 

would  not 

stance  in 

facts  and 

le  mental 

raises  no 

ide  only, 


ami  whether  that  alone  was  evidence  of  insanity.  It  adoptccl  the  very 
luiiguaLif  used  by  the  court  below  in  Amrriciin  Life  Ins.  C>>.  v.  Assetts, 
and  allirniiMl  by  this  court  in  74  I'a.  .St.'  In  Lumti  v.  Com- 
moiiivealth,-  the  defence  was  insanity.  It  was  objected  that  the  court 
below  said  to  the  jury,  "you  cannot,  however,  infer  insanity  from  the 
heinous,  atrocious  character  i.f  the  crime  or  constitute  it  as  an  ele- 
ment in  the  proof  of  actual  in'/inity."  The  an-^wer  here  was.  "the 
court  did  not  mean  to  say  tlu.o  where  proof  (>f  msMiiity  is  given, 
the  horrid  and  unnatural  chaiacter  of  the  crime  will  lend  no  weight  to 
the  proof;  but  meant  only  that  the  It'rrible  initure  of  the  crime  will  not 
stand  as  the  proof  itself,  or  an  element  in  the  proof  of  the  fact  of  insan- 
ity. There  is  a  manifest  difference  Jtetween  that  which  is  actual  evi- 
detice  of  a  fact,  and  which  merely  lends  weight  to  the  evidence  which 
constitutes  the  proof.     This  is  all  the  court  meant." 

So  we  nnderstand  the  language  used  in  the  present  case  to  mean  that 
the  attempt  to  commit  suicide,  of  itself,  is  not  evidence  of  the  fact  of 
the  insanity  of  the  prisoner,  and  it  raises  no  legal  i)resumption  thereof, 
but  it  may  be  considered  by  the  jury  with  all  the  other  facts  and  circum- 
stances bearing  on  the  question  of  insanity.  Sometimes  it  may  be  evi- 
dence of  a  wicked  and  depraved  heart,  familiar  with  crime.  At  others, 
of  despondency  and  discouragement;  but  perhaps  more  frequently  of 
cowivrdice,  of  a  lack  of  courage  to  face  ignominy  and  public  disgrace,  or 
to  submit  to  the  punishment  likely  to  be  imposed  on  him. 

The  third  specification  presents  more  difliculty.  In  answer  to  a 
point  submitted,  the  court  charged,  "  the  law  of  the  State  is  that  when 
the  killing  is  admitted,  and  insanity  or  want  of  legal  responsibility  is 
alleged  as  an  excuse,  it  is  the  dutv  of  the  defendant  to  satisfv  the  jury 
that  insanity  actually  existed  at  the  time  of  the  act,  and  a  doubt  as  to 
such  insanity  will  not  Justify  the  jur}'  in  acquitting  on  that  ground.  The 
law  presumes  sanity  when  an  act  is  done,  and  that  i)resumption  can  only 
be  overthrown  by  clearly  preponderating  evidence."  Excluding  the 
last  sentence,  this  answer  contains  a  clear  and  correct  statement  of  the 
law.  It  is  not  sulticient  cause  for  an  acquittal  of  one  charged  with 
crime,  and  defending  under  the  plea  of  insanity,  that  a  douV)t  is  raised 
!\s  to  its  existence.  As  sanity  is  presumed,  when  the  fact  of  insanity  is 
alleged,  it  must  be  satisfactorily  proved. ^  The  question  remains,  Avhat 
degree  of  proof  is  necessary  to  overthrow  the  presumption  of  sanity? 
The  court  said  it  can  be  "only  by  clearly  preponderating  evidence." 


'  II.  176. 

"■  S4  Pa.  St.  200. 


'  Ortwein  f.  Commonwcaltli,  70  Pa.  St. 
4U;  Lynch  v.  Same,  77  Pa.  St.  -205. 


444 


THK  «uijL)i:>f  or  I'ljoor  of  insanity. 


Hopps  V.  IVnpU', 


The  court  also  (misled,  it  is  said,  by  tlic  laiigunge  in  the  hiief  furiiisiicl 
it)  cited  tlic  case  of  Brown  v.  CommouwenUh,^  as  declaring  "  to  estali- 
ilsh  tills  defence  (viz.,  insanity)  it  ::nistbe  clearly  proved  by  satisfuclon 
and  clearly  prcponderatini;  evidence." 

This  is  not  the  language  of  tliat  case.  It  is  demanding  a  hi<Tlior 
degree  of  proof  than  the  autliorities  re(|uire.  It  may  be  satisfaciurily 
proved  by  evidence  whicli  fairly  prei)onderate8.  To  re(|uire  it  to 
"  clearly  preponderate  "  is  practically  saying  it  must  be  proved  bcyonil 
all  doubt  or  uncertainty.  Nothing  less  than  this  will  make  it  clear  to 
the  jury,  and  make  them  conclusively  convinced.  This  is  not  reciuircd 
to  satisfy  the  jnry.'^ 

It  is  not  necessary  that  the  evidence  be  so  conclusive  as  to  remove  all 
doubt.^  When  one  is  on  trial  for  his  life  care  must  be  taken  that  lie 
receives  from  the  court  that  due  protection  which  the  law  has  wisely 
thrown  around  him.     Evidence  fairly  preponderating  is  sullicient. 

We  discover  no  error  in  the  fourth  specification. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


M 


BUEDEN  OF  PROOF  —  REASONABLE  DOUBT  — TEST  OF  INSANITY  — 
EVIDENCE  OF  GOOD  CHARACTER— EVIDENCE  OF  ANOTHER 
CRIME. 

Hopps  V.  People. 

[31  HI.  385.] 
In  the  Supreme  Court  of  Illinois,  April  Term,  1863. 


Hon.  John  D.  Caton,  Chief  Justice 
"    PixKNEY  H.  Walker, 
**    Sidney  Bkeese, 


\  Judges. 


1.  Burden  of  Proof—  Reasonable  Doubt.  —  A  prisoner  charged  wilh  crime  who  sets  up 

insanity  as  a  defence,  does  not  thereby  assume  the  burden  of  proof  of  such  insanity, 
Such  a  defence  is  only  a  denial  of  one  of  the  essential  allegations  to  be  jiroved  by  the 
.State;  and  therefore,  if,  on  the  whole  evidence,  the  jury  entertain  a  i-casonablc  doubt 
of  his  sanity,  they  must  acquit.    Foster's  Case,  23  111.  2i);j,  overruled. 

2.  Test  of  Insanity.  — Wherever  It  appears  from  the  evidence  that  at  the  time  of  doing 

the  act  charged,  the  prisoner  was  atfected  with  insanity,  and  such  affection  was  the 


>  78  Pa.  St.  122. 

»  Heister  r.  Laird,  1  W.  &  S.  2iri. 

*  Ortwein     v.    Commonwealth,    supra; 


Brown  v.  Same,  supra;  Myers  v.  Same,  83 
Pa.  St.  HI ;  Pannell  v.  Same,  S6  Pa.  St.  2G0. 


f  furiiislu'il 
"to  estiil). 
atisfuctoiv 

g  a  hijTlioi 
tisfacturily 
liiiro  it  to 
eel  bcyoml 
it  clear  to 
»t  rc(iuire<l 

remove  all 
en  that  lie 
has  wisely 
;ient. 

warded. 


SANITY  — 
ANOTIlEIi 


who  sets  up 
h  insnnily, 
ved  by  the 
able  duubt 

le  of  doincr 
>n  WHS  Uie 


;.  Same,  83 
a.  St.  200. 


iN.sAMTV  I'Li;aiji:i»  a-  a  iii:ri:N(K. 


445 


KvliU'iicc  i)f  l'ri>oiu  r'^  I'rr\ioii*  (inml  (  ii.iracli  r  Ilrlcvaiit. 


inoviiifc  caUHO  of  llio  act,  wlllnmt  wliicli  lie  wmiM  tint  liavc  ilniic  it,  he  ninrht  tn  In-  nc- 
<iuitt('d. 
.;.  Evidunoe  of  tho  Uniform  Good  Charautt'i' "f  (lie  iin-niici'  i>  ll<lllll^^lbll■  wlicrc  ila> 
dufuncx'  iH  lii.siiiiity, 

I,  Evidence  of  Another  Crime.  —  .\>  a  tre»(!ral  rule,  on  the  trial  of  oik;  crinie,  proof  that 
the  prL-^oner  haM  roiiiiuilteil  another  !.-«  not  |>enni>>ible.  Hut  >vhere  thiMlefeiice  i^t  In- 
i>aiiily,  and  the  eoolnesH  and  unconcern  of  the  iiri-oner  at  (lie  time  arc  relied  on  a»  evi- 
dence of  It,  it  Is  ciim|ieteut  to  kIkiw  that  the  prisoner  h^id  in  former  ycar-<  been  a 
^nuiKgler,  ua  loitdliig  tu  rubul  the  imprentlon  that  hi^  deportment  wa^  the  renult  ol  in- 
Huuily. 

WisiT  OK  Kituou  to  tlie  CiiTiiil  Court  of  Cook  County,  lion.  Judge 
^r\xiKUKK,  presiding. 

Messrs.  McComaH  «fc  Dextrr,  for  the  plaintiff  in  error. 

^fr.  W.  K.  MrAllititer,  lov  the  def('n(hiiit.s  in  error. 

.Mr.  Justice  Bkkksk  delivered  the  opinion  of  the  eoiu't. 

The  plaintiff  in  error  wa.s  convicted,  in  the  Cook  CiuMiit  Court,  on  an 
indictment  for  the  murder  of  his  wife.  lie  Itrings  the  record  here,  com- 
jilaining  of  several  errors  alleged  to  have  been  conmiitti'd  to  his  jneju- 
<li('i',  the  most  important  of  which  we  pi-opose  to  notice. 

lie  complain.s  111. st  that  the  Circuit  Coint  would  not  permit  him  to  '/\vv 
ovidencc  of  his  uniform  good  character  as  a  man  and  a  citizen. 

It  was,  at  one  time,  a  disputed  question,  wlu'ther  such  evidence  could 
lie  given  in  a  case  where,  as  in  this,  the  homicide  is  not  denied.  Souw 
of  the  books  say  such  evidence,  if  offered,  oupht  to  be  restricted  to 
Ihi'  trait  of  character  in  issue,  or.  in  other  words,  should  bear  some 
aiialo'iv  to  the  nature  of  the  charm'.' 

To  the  same  effect  is  2  Kiissdl  on  Crimes,-  Imt  yet  lu-  says  the  good 
character  of  an  accused  party  is  an  ingredient  which  should  always  bo 
submitted  to  the  consideration  of  the  juiy,  along  with  the  other  facts 
of  the  case.^ 

Ill  a  ease  where  the  defence  is  insanity  we  cannot  have  a  doubt  that 
evidence  of  uniform  good  cliaracter  as  a  man  and  a  citi/.en  is  pivjper 
for  tlio  jury  to  consider ;  whether  a  person  wiiose  character  has  been 
uniformly  good  has,  in  a  sane  moment,  conunitted  the  crime  charged. 
It  is  undoubtedly  true,  a  sane  mnn,  whose  previous  charticter  has  been 
unexceptionable,  may  commit  an  atrocii^us  homicide,  no  doubt,  may 
exist  of  the  fact,  yet  under  his  plea  of  insanity,  slionld  he  not  be  en- 
titled to  all  the  benefit  which  may  be  derived  from  the  fact  of  uniform 
good  character  as  tending,  slightl}'  it  may  be,  to  the  conclusion  that  he 
could  not  have  been  sane  at  the  time  the  deed  was  done?  Genenilly,  a 
person  of  good  character  does  not,  of  a  sudden,  fall  from  a  high  posi- 


1  3Gr.  Kv.,8ect.  25. 

-  p.  TiH. 


»  Jd.  735. 


446 


THE   BURDEN   OF   PROOF   OF   INSANITY 


IIopps  V.  People. 


tioii  to  the  commission  of  outrageous  crimes ;  sliould  he  do  so  would  it 
be  ail  uiuintural  or  forced  inference  that  he  may  have  been  affectcil 
with  insanity  at  the  time?  But  be  this  as  it  may,  it  seems  to  be  now 
settled  that  such  evidence,  in  capital  cases,  is  admissible.  In  the  caso 
of  CommonweaUh  v.  Hardy,^  which  was  a  capital  case,  Pausoxs, 
C.  J.,  said  a  prisoner  ought  to  be  permitted  to  give  in  evidence  his 
general  character  in  all  cases.  SinvKLr.  and  I'.vitKEU,  justices,  said  they 
were  not  prepared  to  admit  that  testimony  of  general  charai-ter  should 
be  admitted  in  behalf  of  the  defendant,  in  all  criminal  i)rosecutio!?':\ 
but  they  were  clearly  of  opinion  that  it  might  be  admitted  in  capital 
cases  in  favor  of  life.  The  same  lule  was  stated  in  the  case  of  Corn- 
moiiwealth  v.  Webster.-  The  court  there  say,  it  is  the  privilege  of  the 
accused  to  put  his  character  in  issue  or  not. 

In  2  Bennett  &  Heard's  Leading  Cases  ^  the  cases  are  collected  and 
commented  on,  in  which  this  rule  is  recognized. 

In  the  case  of  People  v.  Vane,'^  the  court  held  that  evic'Cuce  of 
the  good  character  of  the  defendant  on  the  trial  of  an  indictment,  is 
alwa3's  admissible,  though  it  cannot  avail  when  the  evidence  against  him 
is  positive  and  unimpeached  ;  but  when  the  evidence  is  circumstiuitial. 
or  comes  from  a  suspected  or  impeached  witness,  proof  of  good  char- 
acter is  important. 

We  think,  at  least  in  view  of  the  defence  relied  on,  the  evidence  of 
the  prisoner's  uniform  correct  bearing,  as  a  man  and  a  citizen,  should 
have  bf'  .  made  known  to  the  jury.  A  good  character  is  a  most  pre- 
cious possession,  and  it  ought  to  be  permitted,  in  favor  of  life,  at  least, 
to  go  to  the  jury. 

The  plaintiff  in  error  also  complains,  that  the  prosecution  was  per- 
mitted to  prove  that  about  thirty  years  before  the  commission  of  the 
crime  charged,  he  had  been  engaged  in  a  violation  of  the  revenue  laws 
of  the  country,  by  a  career  of  smuggling  goods  and  property  to  and 
from  Canada.  The  prisoui-r  insists  it  was  not  competent  to  prove  this 
offence  against  him  ;  that  all  the  facts  proper  to  be  proved,  should  be 
strictly  relevant  to  the  particular  charge,  and  have  no  reference  to  any 
of  his  con<l".ct,  not  connected  with  the  charge. 

This  is  undoubtedly  true  as  a  general  principle,  but  we  think  such 
proof  was  warranted  in  this  view.  The  defence  being  insanity,  the 
coolness  and  unconcern  of  the  prisoner  at  the  time  he  did  the  fatal  act, 
was  made  a  prominent  feature  in  the  case,  and  inferences  were  sought 
to  be  drawn  from  it,  favorable  to  the  plea. 


1  2  Mass.  317. 
-  5  Cush.  325. 


'<  ]>.  159,  and  notes. 
13  Wend.  78. 


I  would  it 

affected 

t  be  now 

the  case 

Pausons, 

deuce  his 

said  they 

n-  should 

ecutic'!':', 

n  capital 

of  Covi- 

IQ  of  the 

icted  and 

clence  of 
stnient,  U 
gainst  him 
nstantial. 
ood  char- 

•lencc  of 
,  should 
ost  pre- 
at  least, 

Yas  per- 
il! of  the 
lue  laws 
to  and 
>ve  tills 
lould  be 
to  any 

dc  such 
^ity,  the 
ital  act, 

sought 


EVIDENCE   OF    OTHER   CRIMES. 


447 


Tests  of  Insanity, 


Is  it  possible,  asks  his  counsel,  that  a  man  who  could  show  so  much 
coolness,  sclf-i)osscssion,  and  apacliy,  at  the  moment  and  after  the  fatal 
deed,  could  be  otherwise  than  insane?  To  this  the  People  rei)ly,  the 
j,risoner  had  spent  years  of  his  early  life  in  a  perilous  calling,  demand- 
uig  at  all  times  great  coolness  and  hardihood,  and  therein  had  educated 
his  nerves  to  withstand  any  shock ;  in  such  a  school  he  learned  the 
do[)ortment  exhibited  by  hiin  on  the  fatal  occasion.  To  account  for  this 
coolness  and  unconcern  the  testimony  of  Beardsley  and  Phcli)S  was 
properly  received,  it  being  in  the  nature  of  rebutting  evidence  on  the 
point  made. 

But  these  are  small  points  compared  to  those  we  must  consider. 

The  prisoner  claims  that  the  court  did  not  lay  down  to  the  jnry  cor- 
rectly the  law  of  his  case.  That  he  was  pri'judiccd  by  the  charge  of  the 
court,  not  coming  up,  as  he  alleges  it  should  have  done,  to  the  true 
})rinciples  involved  in  it,  by  which  guilt  was  established  in  a  case  where 
gi;Ut  could  not  exist,  and  for  which  his  life  must  be  forfeited  if  tliis 
(•omthas  ).o  corrective  power. 

The  homicide  stands  confessed.  It  has  never  been  denied  by  the 
prisoner;  on  the  conlrar}',  he  declared,  on  its  commission,  that  it  had 
l)('(n  long  contemplated  and  was  right;  that  ins  wife  was  unchaste. 
After  his  ai'rest  he  justified  the  deed,  and  has,  throughout,  exhibited 
total  indiffeiencc  and  unconcern. 

His  counsel  say  for  him,  he  was  not  of  sound  mind  when  the  deed  was 
done,  and  the  court,  trying  the  cause,  gave  to  the  juiy,  at  great  length. 
it>  views  of  the  nature  of  the  defence,  and  prescribed  the  rule  which 
should  govern  them  '     the  decision  of  the  case. 

We  do  not  propose  to  examine,  in  detail,  the  several  instructions 
given  by  the  court  for  the  prosecution,  or  those  refused  when  asked  by 
the  defence.  We  are  fully  convinced  what  the  nde  or  tests  should 
he  in  such  cases.  The  results  of  scientific  investigation  on  this  intri- 
cate subject  are  so  imperfect  as  to  render  it  very  difficult  to  establish 
any  general  rule  by  which  judicial  proceedings  of  a  criminal  nature 
should  be  governed,  when  the  defence  of  insanity  is  interposed.  Writ- 
ers on  the  subject  treat  of  seveial  different  kinds  of  insanity,  and  of 
(lit'feient  degrees  of  the  several  kinds,  and  among  them,  there  is  con- 
siderable diversity  of  opinion  on  the  same  point.  They  furnish,  as  yet, 
no  true  and  safe  guide  for  courts  and  juries  ;  but  it  is  hoped,  as  science 
iulvanccs,  a  rule  will  be  eliminated  which,  whilst  it  shall  throw  around 
tliese  i)oor  unfortunates  a  sufficient  shield,  shall,  at  the  same  time,  place 
110  great  interest  of  the  community  in  jeopardy. 


448 


THE    BURDEN   OF   PROOF    OF    INSANITY. 


IIopps  V,  People. 


It  is  now  generally  conceded,  that  insanity  is  a  disease  of  the  bi-ain. 
of  that  mass  of  matter  through  and  b}'  which  that  mysterious  power,  tlio 
mind  acts.  There,  the  mind  is  supposed  to  be  enthroned,  attiiis: 
through  separate  and  distinct  organs.  These  organs  may  become  dis- 
eased, one  or  more  or  all,  and  in  the  degree,  or  to  the  extent  of  sutli 
disease,  is  insanity  measured.  A  disease  of  all  the  organs,  causes  total 
insanity,  while  of  one  or  more,  partial  insanity  only.  There  is,  it 
seems,  a  general  intellectual  mania,  and  a  partial  intellectual  mania,  and 
a  moral  oiania,  which  is  also  divided  into  general  and  partial,  it,  Is 
clf.iined  for  the  prisoner  that  the  species  of  insanity  with  which  he  is 
afflicted,  is  of  the  partial  intellectual  order,  denominated  monomania : 
that  is  to  say,  a  mania  on  one  subject,  and  that  subject  the  infidelity  of 
his  wife,  in  which  his  belief,  without  the  least  ground  to  base  it  U[)on. 
was  so  fixed  as  to  become  a  deep-seated  delusion  amounting  to  mania. 
In  the  simplest  form  of  this  species  of  mania,  the  understanding  appears 
to  be  tolerably  sound  on  all  subjects  but  those  connected  with  the 
hallucination.^ 

Premising  these,  it  is  truly  said,  it  has  been  found  diflflcult  to  establish 
any  general  rule  under  which  all  these  varieties  of  insanity  maybe  safely 
included  and  controlled,  when  such  a  defence  is  made. 

The  rule  prevailing  in  the  time  of  Lord  Coke,  Hale,  and  other  lumin- 
aries of  the  law,  in  its  not  most  enlightened  days,  was  that  to  exempt  from 
punishment  the  party  charged  must  be  totally  deprived  of  his  undii- 
standing  and  memory.  As  science  advanced,  and  closer  investigations 
were  had  upon  this  subject,  it  was  held,  if  the  accused  had  so  far  lost 
the  use  of  his  understanding  as  not  to  know  right  from  wrong,  he  vns 
not  responsible,  and  this  rule  has  been  so  far  modified  as  to  be  applied 
to  the  precise  act  for  which  the  prisoner  may  be  indicted. 

This  rule  seems  to  have  been  adhered  to  by  the  English  courts,  and  by 
some  of  the  courts  of  this  country,  with  occasional  departures,  as  in  Ilad- 
JiekVs  Case,  and  other  cases  commented  upon  in  notes  to  1  Leading  Crimi- 
nal Cases. 2  In  HadfielcVs  Catte^  tried  before  Lord  Kenyox  in  1800,  it 
was  held  if  the  accused  was  laboring  under  a  sincere  and  firm  delusion 
it  was  his  duty  to  do  the  act  charged,  and  it  was  done  under  the  in- 
fluence of  such  a  delusion,  he  was  not  responsible.  Yet  in  Bellimj- 
ham's  Ca.se,  tried  before  Sir  James  Mansfield,  in  1812,  reported  in  .'» 
Carr.  «&  Payne,^  the  old  rule  of  Lord  ILvle's  time  was  announced  and 
enforced,  and  an  undoubted  lunatic  condemned  to  the  gallows. 


'  Ray's  Med.  Jur.  164. 
'  p.  93. 


p.  ItiO. 


the  brain, 
power,  the 
ed,  ai'tinp 
Ecome  dis- 
it  of  sikIi 
fiuses  totnl 
lere  is,  it 
mania.,  and 
ial.  iT>  is 
•hich  he  is 
onomania ; 
ifidelity  of 
>e  it  upon. 
■  to  mania, 
iig  appears 
I  with  tho 

0  establish 
y  be  safely 

her  lumin- 
empt  from 

lis  luuli'r- 
stigations 
o  far  lost 
g,  he  va? 
e  applicil 

Is,  and  by 

Is  in  Ilad- 
ig  Crimi- 
1800,  it 
delusion 
;r  the  in- 
Bellimj- 
[tcd  in  .') 
need  and 


TEST   OF    INSANITY. 


449 


Burden  of  Proof. 


We  do  not  propose  to  go  into  an  examination  of  the  various  decisions, 
English  and  American,  on  this  subject,  it  being  sutHcient  to  say  that  no 
certain,  uniform,  and  deflnite  rule  can  be  gatliered  from  them.     In  the 
midst  of  this  uncertaint\',  with  the  best  reflection  and  examination  which 
we  have  been  at)le  to  give  to  this  very  inii))rt ant  and  most  interesting 
question,  we  have  come  to  the  conclusion  that  a  safe  and  reasonable  test 
in  all  such  cases  would  be  that  whenever  it  should  appear  from  the  evi- 
dence that  at  the  time  of  doing  tlio  act  charged,  the  prisoner  was  not 
of  sound  mind,  but  affected  with  insanity,  and  such  affection  was  the 
efficient  cause  of  the  act,  and  that  he  would  not  have  done  the  act  but 
for  that  affection,  he  ought  to  be  acquitted.     But  this  u'soundness  of 
mind  or  affection  of  insanity  must  be  of  such  a  degree  as  to  create  an 
uncontrollable  impulse  to  do  the  act  charged,  by  overriding  the  reason 
and  judgment,  and  obliterating  the  sense  of  right  and  wrong  as  to  the 
particular  act  done,  and  depriving  the  accused  of  the  power  of  choosing 
between  them.     If  it  be  shown  the  act  was  the  consequence  of  an  insane 
delusion  and  caused  by  it,  and  by  nothing  else,  justice  and  humanity 
alike  demand  an  acquittal.     Our  statute  was  designed  to  ameliorate  the 
vigor  of  the  old  rule  of  the  common  law.  In  declaring  that  a  person 
'•affected  with  insanity  "  shall  not  be  considered  a  fit  subject  of  pun- 
ishment for  an  act  done  which,  uniler  other  circumstances  or  disposition 
of  mind,  would  be  criminal.     The  rule  we   have  endeavored  to  pre- 
scril)e  seems  to  fulfil  this  demand  of  the  statute. 

Another  question  remains  as  to  the  proof  necessary  in  such  cases, 
and  the  dut}  of  the  jury  thereupon.  In  this  case  the  court  instructed 
tlie  jury,  if  the  act  was  proved  to  their  satisfaction  by  the  weight  and 
preponderance  of  evidence  to  have  been  one  of  insanity  only,  the  pris- 
oner was  entitled  to  an  acquittal  though  the  defence  should  not  be 
proved  beyond  all  reasonable  doubt. 

This  instruction  greatly  modifies  the  old  rule,  but  it  does  not,  in  our 
judgment,  announce  the  true  principle  in  criminal  cases.  In  evcrj' 
criminal  proceeding  before  a  jury,  without  any  exception,  if  a  reason- 
able doubt  is  entertained  of  the  guilt  of  tlie  uccuslhI,  the  jury  are  bound 
to  ap(init.  Now  what  is  essential  to  the  commission  of  a  crime?  Our 
statute  declares  to  constitute  crime,  there  shall  be  an  union  or  joint 
operation  of  act  and  intention,  or  criminal  negligence.  The  overt  act 
is  one  ingredient,  the  intention  another,  and  their  union  is  indispensable 
to  constitute  guilt.  Intention  is  proved  by  the  circumstances  connected 
with  the  perpetration  of  the  offence,  and  the  sound  mind  and  discretion 
of  the  person  accused.  Tiie  killing  alone,  under  the  most  aggravated 
circumstances,  will  not  sutlice,  if  Sjund  mind  and  discretion  be  want- 
20 


450 


THE    BURDEN   OF   PROOF   OF    INSANITY. 


llopps  t).  rooplc. 


mg 


Souiul  mind  is  presumed  if  tlic  prisoner  is  neither  an  idiot,  luna- 
tic, nor  ••  jiffectcd  with  insanity."     If  he  bo  affected  with  insanity,  thou 
sound  mind  is  wanting  and  crime  is  not  establislied.     Sound  mind  or 
sanit^',  tlien,  is  an  ingredient  in  crime  quite  as  essential  as  the  overt  act. 
Who  will  deny,  if  there  be  a  reasonable  doubt  as  to  the  overt  act, 
that  the  jury  are  bound  to  acquit  ?     Equally  imperative  must  be  tlio 
rule,  if  ;i  reasonable  doubt  be  entertained  as  to  the  sanity  of  the  pris- 
oner.    Sanity  is  guilt.    Insanity  is  innocence ;  therefore  a  reasonable 
doubt  of  the  sanity  of  the  accused  on  the  long  and  well-recognized  prin- 
ciples of  the  common  law  must  acquit.     Supi)ose  the  question  was  one 
of  identity,  would  not  a  reasonable,  well-founded  doubt  on  the  point  ac- 
quit the  prisoner?     Suppose  an  alibi  was  sought  to  be  proved,  and  proof 
sufficient  was  offered  to  create  a  reasonable  doubt  whether  the  accused 
was,  at  the  place  and  at  the  time  when  and  where  the  offence  was  al- 
lesed  to  have  been  committed,  is  not  tiie  prisoner  entitled  to  the  benefit 
of  the  doubt?     So,  if  the  defence  be  that  a  homicide  was  justifiable  or 
excusable,  is  not  the  princii)lc  well  settled,  a  reasonable  doubt  will  ac- 
quit?    The  rule  is  founded  in  human  nature  as  well  as  in  the  demands  of 
justice  and  public  policy,     liuioccnce  is  the  presunqition,  guilt  being 
alleged,  the  State  malcing  the  charge,  is  bound  to  prove  it;  the  State  is 
bound  to  produce  evidence  sufficient  to  convince  the  mind  of  the  guilt 
of  the  partly.     If  a  reasonable  doubt  is  raised,  then  the  mind  is  not  con- 
vinced, and  being  in  that  unsettled  state,  whatever  the  probabilities  may 
be,  a  jury  cannot  convict.     It  is  entirely  impossible  for  them  to  sSy  tlu' 
accused  is  guilty  when  they  entertain  a  reasonable  doubt  of  his  guilt. 

It  is  urged  by  tlie  prosecution  that  the  burden  of  proof  is  on  the  ac- 
cused to  make  out  his  defence.  That  sanity  being  the  normal  condition, 
insanity  must  be  established  by  preponderating  evidence. 

We  do  not  understand  the  burden  of  proof  is  shifted  on  the  defend- 
ant. Every  man  charged  with  crime  is  entitled  to  claim  the  benefit  of 
all  the  provisions  of  the  law.  In  every  case  of  murder  the  first  inciuiiy 
is,  has  the  homicide  been  committed  — did  the  prisoner  do  the  deed  — 
did  he  intend  to  do  ic  —  was  he  of  sound  mind,  and  not  affected  wi  h 
insanity,  when  the  act  was  done,  and  was  the  act  done  with  malice 
aforethought,  express  or  implied?  The  State  avers  their  existence  — 
they  are  essential  to  constitute  the  crime,  and  the  State  must  prove 
them —  the  burden  of  proof  ison  the  State.  But  it  is  said  th.at  the  State 
is  relieved  of  the  burden  by  proving  the  prisoner  did  the  act,  the  law 
implving  that  he  intended  to  do  it,  and  that  the  presumption  is  <  -  ry  man 
is  of  sound  mind.  These  are  but  presumptions,  and  when  tiny  are  it- 
butted  by  proof   of  absence  of  criminal  intention  by  reason  of  uii- 


BURDEX   OF   PKOOF    OX    PK08i:CUTI0N. 


451 


CoiiciiiTin-  Opinion  of  Calon,  C.J. 


'I  idiot,  Imi.^. 
nsanity,  then 
mid  miiul  ur 
he  overt  act. 
'c  overt  act, 
nuist  be  the 
of  the  pri.s- 
1  rcasonal)I(. 
gnizod  piiii- 
ion  was  one 
ho  point  ac- 
J>  aiul  i)r()()f 
the  accused 
nee  was  al- 
•  tlie  benefit 
iistifiahle  or 
ibt  will  ac- 
dcinands  of 
guilt  being 
he  State  is 
f  the  guilt 
is  not  cou- 
>ilities  may 
to  sSy  till' 
'is  guilt, 
on  the  ae- 
conditiou, 

le  dcfend- 
benefit  of 
St  iucjuiiy 
le  deed  — 
cted  wih 
th  malice 
sttnce  — 
1st  j)r()ve 
the  Stale 
,  the  I;i\v 
"  Tymau 
y  are  le- 
1  of  uii- 


Wc  tl,i„k  not      n,r,        "'.""y.-^*"*"""''!  "Il^'gation  in  tl,e  in.lictn,..,,,  v 

i...>"cc..c.„  i.  „,.trong  ».t,,e,,..n;u:  '  ";umv      r;?'''""": 
l"oo(  must  thercifoie  always  re  niin  «  fl,  ^■.  "'''°"  "' 

Leyoml  a  reasonable  <IonU      ^  te  '  l'"«'-"tion  to  prove  gnilt 

.n'u;:;:!:e':::;;;;::;;i:;'  f "'^,f  °"  *"' '-'" '"""'  -  ^^"- ■'  '^-■= 

1.V  suflicient  Z  ^  l,Tt  "        ""''"^'  °""'''"""'  ''">"»' ''«  "''own 

.oasonable    well  fonnclecl  <l„„bt  of  the  sanity  of  th^  "    use  r  Tl ' 

iuunanmnid  revolts  If  tlio  iM^,  ^4!  .  'ifcused.     lli(. 

.^a.a.e,ifo,r,t:::^r=:^;— :-^-- 

fouiKl  to  the  same  ,  urnort      it ^l  ,  '  """"^  """^  "» ''""''t  ^e 

nevertheless,  ZZ  '  "  '"'^  '^"°^  '"'"y-  ""=  P--Ple  is, 

this  case.  »Uooestions  upon  a  single  point  in 

.:.et;fnrirr;L:!i:— ^^^ 

1  /-*^ 


'  Com. ...  McKee,  IGray.fil. 
=  23  111.293. 
'  2  Ala.  43. 


^  16X.  Y.,58. 
'  19  Ind.  170. 


452 


THE    BURDEN   OF   PUOOF   OF    INSANITY. 


IIopps  V.  People. 


duces  a  shudclcr  in  every  one  who  is  not  callous  to  all  sense  of  justice 
and  humanity ;  and  the  all-pervadiiig  sentiment  erf  civilized  man  demaiid^ 
this  rule.  Does  humanity  less  demand  it  in  a  case  where  the  defence  is 
insanity  than  where  it  is  excusable  or  justifiable  homicide?  Is  it  any 
less  revolting  to  an  enlightened  humanity  to  hang  an  innocent  crazy 
man  than  one  who  is  sane?  '  His  very  helplesst.ess  commends  him  to 
the  commiseration  of  mankind.  One  who,  being  indicted  for  murder, 
says,  true,  I  killed  the  man,  but  I  did  it  in  necessarj'-  self-defence,  sliall 
be  acquitted  if  he  can  raise  a  reasonable  doubt  on  this  question,  al- 
though the  preponderance  of  evidence  is  and  the  probabilities  are  that 
he  was  the  attacking  party,  and  pursued  his  victim  unto  death,  with 
malice  aforethought,  and  shall  it  be  said  when  the  same  doubt  exists  as 
to  the  insanity  of  the  prisoner,  he  shall  be  convicted  and  executed? 
The  very  suggestion  is  shocking  to  a  sense  of  even-handed  justice. 

The  question  at  last  returns,  is  the  prisoner  guilty  or  not  guilty?  If 
there  is  a  reasonable  doubt  of  his  guilt  he  must  be  acquitted.  If  there 
is  such  doubt  of  malice  all  agree  that  he  must  have  the  verdict.  If  he 
Avas  insane  there  could  be  no  malice,  and  hence,  to  raise  a  dou1)t  of 
sanity  is  to  raise  a  doubt  of  malice.  Sanity  is  as  necessary  to  guilt  i.s 
any  other  fact,  and  if  there  is  a  reasonable  doubt  of  that  there  must  be 
a  doubt  of  guilt.  Why  should  there  be  an  exception  to  this  otherwise 
universal  rule?  I  can  see  none  in  reason,  and  it  is  against  the  funda- 
mental principles  of  the  law.  The  old  common  law  is  silent  on  this 
s^ibject.  It  is  only  in  modern  times  that  the  question  has  arisen,  and 
the  first  who  held  that  insanity  was  an  exception  to  the  rule,  ovoi- 
turned  the  rule  itself ;  but  they  could  not  abolish  or  destroy  it.  It  stiil 
remains,  and  I  trust  will  ever  remain,  an  immovable  monument  to  the 
civilization  and  humanity  of  our  age  and  country-. 

It  is  said  insanity  may  be  simulated.  So  may  any  other  fictitious 
defence  be  got  up  to  screen  the  guilty.  The  evidence  in  this  case  is 
that  it  is  exceedingly  difficult  to  simulate  insanity  so  as  to  avoid  detec- 
tion. It  is  but  very  lately  that  insanity  has  become  a  subject  of  careful 
scientific  investigation  which  has  made  and  is  making  rapid  progress. 
This  investigation  enables  experts  to  detect  simulated  insanity  with 
much  more  certainty  than  could  formerly  be  done. 

Shall  we  ignore  and  denounce  the  results  of  human  study  and  re- 
search on  this  subject,  while  we  recognize  and  applaud  the  advancement 


1  The  chief  justice  rather  mistakes  the 
•question.  It  tihould  be:  "Is  It  any  loss 
revolting  to  an  enlightened  hunianity  to 
!'.ang  a  guilty  cruzy  man  than  an  innocent 


sane  one?"  Many  jiorsons  could  be  found 
who  wo\il(l  roiidjty  answer  this  question  iu 
the  atl'rm  itive. 


se  of  justice 
nan  demand, 
le  defence  is 
?  Is  it  any 
locent  crnz\ 
leiuls  hiin  tn 
for  murder, 
efenee,  shall 
question,  al- 
ties  are  that 

death,  with 
ibt  exists  as 
i  executed? 
justice. 
;  guilty?  If 
I.  If  thoro 
diet.  If  he 
!  a  doul)t  of 
y  to  guilt  {'.s 
;ere  must  be 
s  otherwise 

the  f  unda- 
lent  on  this 
arisen,  and 

rule,  ovoi- 

it.  It  still 
bent  to  the 

|r  fictitiou.' 

jhis  case  is 

•oid  detee- 

of  careful 

progress. 

lanity  with 

|ly  and  re- 
ancemeiit 

|uld  be  found 
fiucstion  iu 


BUKDEN    OF   rUOOF   ON   PROSECUTION. 


153 


Dissent iiii.'  Opinion  l)y  Walker,  J. 


of  science  in  all  other  directions?  Peoples  and  governments  in  all  civ- 
ilized countries  recognize  them  by  the  erection  of  vast  asylums  for  these 
nnfortunates,  where  this  science  can  be  carefully  studied  by  those  wiio 
will  devote  their  lives  to  the  investigation  of  this  subject,  where  very 
many,  by  careful  scientific  treatment,  are  restored,  and  become  useful 
members  of  society.  To  say  that  men  by  careful  study  and  investiga- 
tion can  acquire  no  skill  on  this  subject,  while  the  same  study  and  in- 
vestigation will  constantly  develop  new  truths  on  all  other  subjects, 
would  be  a  daring  assumption  upon  which  we  cannot  consent  to  hang  a 
fellow-man.  At  the  time  this  question  was  first  brought  before  the 
eourts,  it  may  be  that  it  was  in  some  cases  diflficult  to  detect  simulated 
insanity,  and  thus  the  courts  may  have  been  induced  to  overturn  the- 
well  established  law  to  meet  the  apprehension  ;  but  this  danger,  to  say 
the  least,  is  very  much  diminished  now. 

I  am  well  convinced  that  we  should  adhere  to  the  old  and  well  estab- 
lished rules  of  the  criminal  law,  and  that  we  should  require  at  least  a& 
much  evidence  to  convict  a  crazy  man  as  a  sane  one. 

Mr.  Justice  Walker  dissenting. 

I  am  unable  to  concur  in  all  of  the  reasons  assigned  by  the  majorit3r 
<.f  tiie  court  for  reversing  this  judgment.  On  the  question  of  the 
meiisure  of  proof  necessary  to  a  conviction  where  the  plea  of  insanity 
is  interposed,  th6re  may  be  a  conflict  in  the  authorities,  but  it  will  be 
found  that  the  current,  in  fact,  all  but  two  cases  so  far  as  I  can  find.. 
estahlish  the  rule  that  the  plea  must  be  established  by  at  least  a  prepon- 
derance of  evidence.  It  is  a  presumption  lying  at  the  foundation  of 
jurisprudence,  as  well  as  all  the  business  relations  of  life,  that  all  men 
are  of  sound  mind.  This  proposition  cannot  be  controverted,  and  to. 
be  n  voided  must  be  rebutted  by  evidence. 

The  plea  of  insanity,  like  all  other  special  pleas,  confesses  the  act 
charired  and  avoids  the  consequence  }\v  showing  circumstances  which 
establish  a  defence.  Tliis  defence,  like  every  other  plea  whioh  con- 
fesses and  avoids,  must  be  proved.  And,  in  analogy  with  the  practice 
under  special  pleas  generally,  the  proof  must  devolve  upon  the  party  in- 
terposing the  defence.  In  this  defence  the  accused  admits  the  homicide^ 
but  alleges  that  he  was  incapable  of  distinguishing  right  from  wrong  at, 
the  time,  owing  to  mental  derangement.  Having  averred  the  facts; 
necessary  to  his  defence,  and  being  required  to  establish  the  timth  of  his 
plea,  can  it  be  said  that  he  has  done  so  when  he  has  only  rendered,  it 
doubtful  whether  he  was  sane  or  insane.  This  plea,  like  all  other  afflrma- 
tive  facts,  is  capable  of  satisfactory  proof.  It  cannot  be  that  a  per- 
son is  so  far  insane  as  not  to  know  right  from  wrong,  and  yet  those 


454 


THE    BURDEN    OF    PROOF    OF    INSANITY. 


Hopps  V.  People. 


with  whom  he  associates  he  ignorant  of  the  fact.     Such  cases  cannot 
occur  among  people  of  ordinary  intelligence  and  observation. 

In  the  ease  of  iJcgf.  v.  Oxfurd,^  Lord  Chief  Justice  Denman  announced 
the  rule  tliat  all  persons  must  be  taken  ^j?'/wa/«f/e,  to  be  of  sound  mind 
until  the  contrary  is  shown.  lie  says,  "the  question  is  whether  tiie 
prisoner  was  laboring  under  that  species  of  insanity  that  satisfies  the 
jury  that  he  was  quite  unaware  of  the  nature  and  consequence  of  tiie 
act  he  was  committing,  or,  in  other  words,  whetlier  he  was  under  the 
influence  of  a  diseased  mind,  and  was  really  unconscious  at  the  time  ho 
was  commiting  the  act  that  it  was  a  crime."  It  is  here  distinctly  an- 
nounced that  the  jury  must  be  satisfied,  and  not  merely  left  in  doubt  of 
the  truth  of  the  plea.  He  says  nothing  about  any  species  of  doubt  as 
to  its  truth. 

In  Great  Britain,  as  late  as  in  June,  184.3,  a  scries  of  questions  was 
propounded  to  the  fifteen  judges,  on  the  subject  of  the  defence  of  in- 
sanity, to  which  they  returned  answers.  In  answer  to  the  second  ques- 
tion they  say  tiie  jury  ouglit  in  all  cases  to  be  informed  that  every  man 
should  be  considered  of  sound  mind  until  the  contrary  is  clearly  proved 
in  evidence.  "That  before  a  plea  of  insanity  should  be  allowed  un- 
doubted evidence  should  be  achluced  that  the  accused  was  of  diseased 
mind,  and  that  at  the  time  he  committed  the  act  he  was  not  conscious  of 
right  and  wrong."  ^  This  answer  of  all  the  judges  of  England  clearly 
establishes  the  rule  of  law  in  the  courts  of  that  country  to  be  that  the 
accused  must  prove  this  defence  of  insanitj'  by  undoubted  evidence  of 
its  truth.  It  is  believed  that  no  well  considered  case  can  be  found,  de- 
cided in  any  British  courts  announcing  a  different  rule. 

In  the  case  of  Fisher  v.  Peoi^ic,''^  this  court  announced  the  rule  that. 
"before  such  a  plea  can  be  allowed  to  prevail  satisfactory  evidence 
should  be  offered  that  the  accused,  in  the  language  of  the  criminal  code, 
was  'affected  with  insanity,'  and  at  the  time  he  committed  the  act  was 
incapable  of  appreciating  its  cnormitv."  The  rule  here  announced  is  a 
modification  of  the  rule  of  the  British  courts,  and  accords  with  tlie 
current  of  decisions  in  this  country.  Wliilst  this  is  not  the  unifoiin 
rule  of  the  American  courts,  yet  it  has  been  announced  by  a  large  ma- 
jority. This  rule  seems  to  accord  with  reason  and  justice,  and  is  well 
calculated  to  protect  community  against  the  perpetration  of  crime,  in- 
sure the  accused  a  fair  trial,  and  is  in  accordance  with  the  analogies  of 
the  law. 


'  9  C.  A  p.  525. 
2  McNaghten's    Case, 
Whart,  Crim.  Law,  46. 


3  23  lU.  2S3. 


10    CI.  &    F.  200; 


EVIDENCE   OF   GOOD    CHARACTEU   ADMISSIULK.    *  455 


(iiietiii  V.  Stuto. 


;ases  cannot 
n. 

>J  announced 
sound  mind 
wlu'tlier  the 
satisfies  tlie 
ence  of  tlie 
}  under  tlio 
the  time  ho 
stinctly  an- 
in  doubt  of 
f  doubt  as 

est  ions  was 
-Mice  of  in- 
cond  ques- 
every  man 
ti'ly  proved 
[lowed  un- 
f  diseased 
'nscious  of 
Liid  clearly 
)e  that  the 
'idence  of 
found,  de- 
rule  that, 
evidence 
inal  code, 
le  act  was 
incod  is  a 
M'itli  tlio 
3  uniform 
large  ma- 
ad  is  well 
rime,  in- 
dogies  of 


Experience  teaches  us  that  insanity  is  readily  simulated  to  the  extent 
of  creating  a  doubt  in  the  minds  of  th..se  who  have  no  opportunity,  bv 
assocMating  w,th  the  accused,  of  detecting  the  fraud.  If  the  ul  • 
announced  by  the  majority  of  the  cotut  becomes  the  established  law  I 
have  grave  nppi-c.hensions  that  it  will  be  found  a  ready  means  of  screJn- 
ing  the  gu.Uy  of  merited  punishment,  and  will  operate  injuriously  upon 
society.  It  ai,pears  to  me  that  the  well  being  of  society,  the  prev^^nion 
of  crane,  and  justice  to  the  people  all  require  that  the  rule  in  Fl.lJl 
C  ase  should  be  no  further  relaxed. 

I  however  concur  with  the  majority  of  tiie  court  in  holding  that  the 
accused  was  entitled  to  give  evidence  of  his  previous  good  charact 
llus  seems  to  be  held  to  be  evidence  that  the  accused  may  resoit   o' 
and  have  considered  by  the  jury.     Its  weight  in  many  cases  may  justlv' 

ru^'T  T™'"'  '"^ "'"'  ""'^*  "^  "^''^'-^  «"^^^'-l  to  but  little  weight' 

It,  hke  all  other  evidence,  must  be  left  to  the  consideration  of  the  jury 

0  be  weighed  in  connection  with  all  the  other  testimony  in  the  case' 

adLrd"  ''  "'  "'"'  '''  ^^^^-^  "^'^-'^  ^'-^^  ^-»  ^-^  it  Zn 

The  court  below  therefore  erred  in  rejecting  this  evidence. 

Judgment  reversed. 


BURDEN  OF  PROOF-FRENZY  ARISING  FROM  ANGER  OR  JEALOUSY- 
OPINIONS  OF  EXPERTS.  ^^vi^or 

GuETiG  V.  State. 

[G6  Ind.  94;  32  Am.  Rep.  99.] 
In,  the  Supreme  Court  of  Indiana,  3Iay  Term,  1879, 

on.  Jamks  L.  Wordex,  Chief  Justice. 
"     Gkohge  V.  HowK,       ] 

"       WiLLIASI  E.  NlIJLACK,  I 

"     Horace  P.  Biddle,     \'^^<^9es. 
"     Samuel  E.  Perkins,  J 

reasonable  doubt."    Seld,  correct.  sufflcieat  if  it  raises  m  your  minas  a 


450 


THE    BUKDEN    V.F   I'KOOF    OF    INSANITY. 


(iiiottu  V.  State. 


2.  Frenzy  ariainer  solely  from  the  paaaion  of  augur  ami  Jealousy,  no  mnttor  how  furious, 

is  licit  insiiiiity  wliicli  wiil  oxcune  a  criiuc. 

3.  Experts  — Weirbt  of  testimony. —InBtructionti  as  to  tlio  weiglit  tu  boglveuto  tbo 

tustimouy  of  uxiiortti  upprovcU. 

IiKlictmcnt  for  murder. 

J.  L.  GrlfithH,  A.  F.  Potts,  J.  W.  Gore  jn,  R.  N.  Lamb  and  S.  M. 
SfK'p/icrd,  for  apiK'llaiit. 

r.  W.  Wollen,  Attorney-General,  J.  B.  Elam,  J.  S.  Duncan,  C.  W. 
Smith  and  Jt.  B.  Duncan  for  the  Stiite. 

UiuDi.i:,  J.  — Louis  Guetig  was  indicted  for  the  murder  of  IMary  Mc- 
Glew,  convicted  and  sentenced  to  death.  He  appealed  to  this  court. 
Tlie  judgment  W!is  reversed  for  an  error  in  tlie  lower  court  and  the 
cause  remanded  for  a  new  trial. '  Ui'Oii  a  second  trial  he  was  again  con- 
victed and  is  now  again  under  sentence  of  death. 

(Omitting  rulings  on  otlier  questions.) 

3.  The  appellant  complains  of  the  refusal  by  the  court  to  give  several 
instructions  to  the  jury,  but  the  only  one  insisti'd  upon  in  the  brief,  and 
the  only  one,  therefore,  which  we  shall  notice  is  the  following:  — 

"  .".  It  is  true,  that  in  tlio  absence  of  any  countervailing  fact  or  i)rc- 
sumption,  every  person  is  presumed  to  be  of  sound  mind ;  but  in  the 
case  of  the  defendant,  which  you  are  now  engiiged  in  trying,  there  is 
opposed  to  the  presumption  of  soundness  of  mind,  the  presumption  that 
the  defendant  is  innocent  until  the  contrary  is  proved,  and  this  presump- 
tion of  the  innocence  of  the  defendant  countervails  and  overcomes  tiie 
presumption  that  he  was  of  sound  mind ;  and  in  the  absence  of  any  evi- 
dence on  the  part  of  the  State  tending  to  prove  that  the  defendant  wns 
of  sound  mind  at  the  time  of  the  homicide,  you  ought  to  find  the  defend- 
ant not  guilt}'." 

This  instruction  was  properly  refused.  We  cannot  regard  it  as  the 
law  of  the  case,  Besides  tlie  instructions  numbered  eight  and  nine, 
given  b}'-  the  court,  cover  the  entire  ground  attempted  to  be  presented 
by  instruction  numbered  three,  refused  by  the  court. 

4.  The  court  g.ave  to  the  jury  the  following  instructions,  to  which  ex- 
ceptions were  properly  reserved :  —  . 

' '  7.  Fi'enzy  arising  solely  from  the  passions  of  anger  and  jealousy,  no 
matter  how  furious,  is  not  insanity.  A  man  with  ordinary  will  power, 
which  is  unimpaired  by  disease,  is  required  by  law  to  govern  and  con- 
trol his  passions.  If  he  yields  to  wicked  passions,  and  purposely  and 
maliciously  slays  another,  he  cannot  escape  the  penalty  prescribed  by 


»  GuetigD.  State,  03  lnd.278. 


INSTRUCTIONS    IX    OlETIO    V.  STATE, 


457 


Tot:  lUink-u     of  Proof:  Opinions  of  Kxpi-rts. 


■how  furious, 
given  to  the 

md^.  M. 

in,  C.   W. 

Mary  Mo- 
llis court, 
t  and  tlie 
igain  cou- 


ive  several 
brief,  and 

ct  or  prc- 
>ut  in  the 
,  there  is 
)tiou  that 
presump- 
oines  the 
any  evi- 
ant  wn.-s 
def  end- 
it  as  the 
nd  nine, 
•esented 

hich  ex- 

onsy, no 
power, 
,nd  con- 
ely  and 
ibed  by 


l:iw,  upon  the  ground  of  mental  incapacity.  Tiiat  state  of  mind  caused 
by  \vici<i'(l  and  ungovernable  passions,  resulting  not  from  mental  lesion. 
Imt  solely  from  evil  pa'^sions,  constitutes  that  mental  condition  which 
tlie  law  al>hors,  and  to  which  the  term  '  malice  '  is  applied.  The  condi- 
tion of  mind  which  usually  and  immediately  follows  the  excessive  use  of 
alcoholic  liquors  is  not  the  unsoundness  of  mind  meant  by  our  law. 
V(ilnnt:uT  drunkenness  does  not  even  palliate  or  excuse." 

"  (I.  The  law  presumes  that  a  man  is  of  sound  mind  until  there  is 
some  evidence  to  the  contrary.  In  prosecutions  for  offences  against 
die  Criminal  Code,  an  accused  is  entitled  to  an  acquittal,  if  the  evidence 
t'ligenders  a  reasonable  doubt  as  to  the  mental  capacity  at  the  time  the 
alleged  offence  is  charged  to  have  been  committed.  Evidence  rebutting 
or  tending  to  rebut  the  presumption  of  sanity  need  not,  to  entitle  the 
lUifcmhuitto  an  acquittal,  preponderate  in  favor  of  the  accused.  It  will 
be  sufficient  if  it  raise  in  your  minds  a  reasonable  doubt. 

"10.  The  presumption  of  innocence  attends  the  accused  step  by 
f5top  throughout  the  entire  case,  and  he  is  entitled  to  its  benefit  upon 
every  question  Involved,  as  well  upon  that  of  mental  capacity  as  upon 
all  others.  The  effect  of  the  presumption  of  innocence  upon  the  ques- 
tion of  mental  capacity  is  of  such  strength  as  to  require  that  the  evi- 
U'lice shall  establish  soundness  of  the  mind  beyond  a  reasonable  doubt. 
liiit  is  not  of  such  power  as  to  require  the  State  in  the  first  instance,  and 
lii'fore  the  introduction  of  evidence  tending  to  show  mental  incapacity, 
to  prove  the  mental  capacity  to  have  been  in  the  normal  condition 
usually  possessed  by  ordinary  men.  The  presumption  of  innocence  is 
so  far  of  greater  strength  than  that  of  sanity,  that  when  evidence  ap- 
IR'ais  tending  to  prove  insanity,  it  compels  the  prosecution  to  establish, 
from  all  the  evidence,  mental  soundness  beyond  a  reasonable  doubt. 

'•  13.  The  opinions  of  meilical  experts  are  to  be  considered  bj' you, 
in  connection  with  all  the  other  evidence  in  the  case,  but  you  are  not 
bound  to  act  upon  them  to  the  entire  exclusion  of  other  testimony. 
T:\kinginto  consideration  these  opinions,  and  giving  them  just  weight, 
you  are  to  determine  for  yourselves,  from  the  whole  evidence,  whether 
the  accused  was  or  was  not  of  sound  mind,  yielding  him  the  benefit  of  a 
reasonable  doubt,  if  such  arises  from  the  evidence. 

"15.  You  are  not  to  take  for  granted  that  the  statements  contained 
in  the  hypothetical  questions,  which  have  been  propounded  to  the  wit- 
nesses, are  true.  Ui)on  the  contrary,  you  are  to  carefully  scrutinize 
tiie  evidence,  and  from  that  determine,  what,  if  any,  of  the  averments 
are  true  ;  and  what,  if  any,  are  not  true.  Should  you  find  from  the  evi- 
dence that  some  of  the  material  statements  therein  contained  are  not 


458 


THE   BURDEN   OF   PUOOF   OF    1N8AXITV, 


UiU'lla  V.  .State. 


correct,  and  thnt  they  nro  of  such  dmracter  ns  to  entirely  destroy  llif 
ri'liability  of  oi)inions  bused  upon  the  liypollie.sis  Htaled,  yuu  may  iitlncli 
no  weight  wluilever  to  the  opinions  based  tliereon.  You  are  to  dctcr- 
rainefrora  all  the  evidence,  what  the  real  facts  are,  and  whether  they  are 
correctly  or  not  stated  in  the  h^-jiothetical  question  or  questions.  1  need 
hardly  remind  you  (for  it  will  suggest  itself  to  your  own  minds)  that  an 
opinion  based  upon  an  hypothesis  wholly  incorrectly  assumed,  or  incor- 
rect in  its  material  facts,  and  to  such  an  extent  as  to  impair  the  value 
of  tho  opinion,  is  of  little  or  no  weight.  Upon  the  matters  statei'  in 
these  hypothetical  questions,  and  which  are  involved  in  this  investi- 
gation, you  are  to  give  thcdefendanc  the  benefit  of  all  reasonable  doubt. 
if  any  there  should  be  ;  and  where  there  is  a  reasonable  doubt  as  to  tlie 
truth  of  any  one  of  the  material  facts  stated,  resolve  it  in  the  defend- 
ant's favor." 

Counsel  for  appellant  object  particularly  to  the  first  sentence  of  in- 
struction numbered  seven.  It  is  true  that  that  sentence  does  not  state 
a  legal  proposition.  It  only  says  that  "  frenzy  arising  solely  from  the 
passions  of  anger  and  jealousy,  no  matter  how  furious,  is  not  insanity." 
This  is  doubtless  correct. 

Frenzy  arising  from  passion  of  any  kind  is  violent  and  temporary  and 
would  subside  with  the  passion.  Insanity  may  be  without  violence  and 
l)crmanent,  and  not  in  any  way  caused  by  passion.  We  think  the  sen- 
tence is  harmless.  It  does  not  api^ear  to  us  that  it  could  possibly  have 
injured  the  ai)pellant.  It  affords  no  ground,  therefore,  to  reverse  tlu' 
judgment.  Tho  remainder  of  the  instruction  is  correct ;  indeed,  we  do 
not  understand  the  counsel  as  objecting  to  any  part  of  it  except  the  first 
eentence. 

In  our  opinion  instructior  numbered  nine  is  so  clearl3'  right  that  we 
do  not  discuss  it. 

We  can  scarcely  approve  of  vhe  last  sentence  of  in-^truction  numbered 
ten,  but  it  contains  nothing  of  which  the  appellant  can  complain.  If  it 
is  erroneous,  the  error  is  in  his  favor.  It  is  true  that  if  the  defendant 
introduced  sufficient  evidence  to  raise  a  reasonable  doubt  of  his  sound- 
ness of  mind,  it  then  would  become  necessary  for  the  State,  if  she  i'.i- 
sisted  upon  a  conviction,  to  prove  the  defendant's  mental  soundness 
beyond  a  reasonable  doubt ;  but  there  may  be  evidence  tending  to  prove 
insanity,  and  not  be  sufficiently  strong  to  raise  a  reasonable  doubt  of 
mental  soundness.  In  this  we  think  the  proposition  is  incorrect.  But 
the  error,  being  against  the  State,  the  appellant  is  not  injured  thereby. 
The  remaining  portion  of  the  instruction  is  correct. 

Instructioiis  numbered  thirteen  and  fifteen  properly  express  the  law, 


8TATK    V.  CKAWFOKI). 


4r)l) 


HiinUii  (if  Proof  oil  I'roscciitloii. 


li'Stroy  the 
nay  iitUicli 

to   (K'tlT- 

•r  they  iiic 
8.  1  iit'fd 
Is)  tliat  an 
,  or  iiicor- 
'  the  valtic 
statt'i'  ill 
is  iiivosti- 
.)lo  (loiiht. 
;  ns  to  tlic 
le  defciul- 

icc  of  in- 

not  state 

from  tlu' 

nsanity." 

orary  and 
Icnce  and 
:  the  sen- 
ibly  have 
verse  the 
>d,  we  do 
t  the  first 

t  that  we 

limbered 
n.  If  it 
efendaiit 
s  sound- 
f  she  iii- 
)undnes8 
to  prove 
iloubt  of 
3t.  But 
thereby. 

the  law, 


I 


iiiid  are  f.diy  su.staincd  by  the  authorities  cited  under  question  numbered 
two,  already  discussed. 

(Omitting  minor  points.) 

We  have  thus  caref.dly  examined  all  the  questions  presented  for  <,ur 
consideration  on  behalf  of  the  appellant.  There  is  nothing  in  the  ree..rd 
to  show  us  that  the  appellant  was  not  indicted,  tried,  and  convicted  ac- 
cording to  the  law  and  the  facts  of  the  case. 

The  judgment  is  therefore  amrmed  at  the  costs  of  the  appellant. 

Judgment  affirmed. 


BURDEN  OF  PROOF. 

State  v.  Ckawfoiid. 

[11  Kas.;!2.] 

In  the  Supreme  Court  of  Kansas,  January  Term,  1873. 

lion.  Samt'kl  a.  Kinoman,  Chivf  Justice. 
"    1).  M.  Vai.kntixi:,  1  ,        ."       , 
"     D.J.Buewkh,         \'^'>^'^<^^^^te  Justices. 

^'"i?^,^,mf'°°'-~'^''?''''""'^""' ""•""■"  "•^'*"'   '"^^""''^  '^"«t  'cquire.l  to  establish 
It.  truth  by  a  prepondenincu  of  the  evi.icn.H,.;  but  if,  upon  iho  whole  of    hi  !v  i 
intro,lu,-,ed  on  tho  trial,  together  with  all  the  logal  pre.  nn'rnrmmlich     ,.,.'"''' 

t:ixt''''''  ''-'' '' "" '"'-'''''''  doub^whither  hi  'sni^^'T:::::::,  hir.:;:^ 

Appeal  from  Marion  District  Court. 

Lewis  Crawford  was  charged  with  the  crime  of  murder  in  the  first 
degree  in  shooting  and  killing  Charles  II.  Davenport  on  April  14    l87-> 
lie  was  found  guilty  and  sentenced  to  be  executed  November  22',  187-^ 
and  from  this  judgment  and  sentence  he  appealed 

Frank  Foster  and  Case  &  Putnam,  for  appellant. 

Martin,  Burns,  &  Case,  for  the  State. 

Valentine,  J. 

(Omitting  rulings  on  other  points. ) 

Did  tho  court  charge  the  jury  correctly  with  regard  to  the  question 
of  msanity  i  The  court  in  substance  charged  that  it  devolved  upon  the 
defendant  to  prove  that  he  was  insane,  and  that  he  must  do  so  by  a  i,re- 
ponderance  of  the  evidence  in  order  to  be  acquitted.  This,  we  think 
IS  not  the  law.  We  suppose  it  will  be  conceded  that  no  crime  can  be 
committed  by  an  insane  person ;  or,  at  least,  it  will  be  conce*  ed  that  no 


4G0 


THE    BUUDEN    OF   PUOOF    OF   INSANITY. 


State  V.  Crawford. 


net  "which  is  the  result  of  insanity,  total  or  partial,  the  result  of  an  in- 
sane delusion,  or  the  result  of  an  insane,  uncontrollable  impulse,  can 
1)6  denominated  a  crime.  Murder  at  conunon  law  is  delinod  to  be 
•'where  a  person  of  sound  memory  and  discretion  unlawfully  killetli 
any  reasonable  creature  in  being,  and  under  the  king's  pi-ace,  with 
malice  pi'epense,  or  aforethouiiht,  either  express  or  implied."  ^  And 
our  statutes  have  nowhere  attempted  to  change  the  common-law  dethii- 
tion  of  murder.  But  they  have  simply  taken  murder  as  delined  at 
common-law  and  divided  it  into  two,  or  probably  three,  degrees.'^  The 
fact,  then,  of  soundness  of  mind  is  as  much  an  essential  iuijredient  of 
the  crime  of  muvder  as  the  fact  of  killing,  or  malice,  or  any  other  act 
or  ingredient  of  murder,  and  should,  it  would  seem,  be  made  out  in  the 
same  way,  by  the  same  party,  and  by  evidence  of  the  same  kind  and  de- 
gree and  as  conclusive  in  its  character  as  is  required  in  making  out  any 
other  escential  fact,  ingredient,  or  element  of  murder.  In  eveiy  criminal 
action  in  this  State,  ''  a  defendant  is  presumed  to  be  innocent  until  the 
contrary  is  proved.  Where  there  is  a  reasonable  doubt  "whether  his 
guilt  is  satisfactorily  shown,  he  must  be  acquitted.  When  there  is 
a  reasonable  doubt  in  which  of  two  or  more  degrees  of  an  offence  he  is 
guilty,  he  may  be  convicted  of  the  lowest  degree  only."  This  is  the 
statute  law  of  Kansas,^  and  "we  suppose  will  not  therefore  be  contro- 
verted. This  statute  in  substance  i?^,  that  every  defendant  is  presumeil 
to  be  innocent  of  all  crime  until  his  guilt  is  legally  shown ;  that  it  de- 
volves upon  the  State  to  show  his  guilt ;  that  his  guilt  must  be  shown 
by  evidence  that  will  convince  the  jury  beyond  a  reasonable  doubt ; 
and  if,  upon  the  whole  of  the  evidence  submitted  to  the  jury,  there 
should  be  a  reasonable  doubt  as  to  whether  his  guilt  is  satisfactorily 
shown,  he  must  be  acquitted.  Now,  as  no  insane  person  can  commit  a 
crime,  it  necessarily  follows  that  if  the  jury  have  a  reasonable  doubt  of 
the  defendant's  sanity,  they  must  also  have  a  reasonable  doubt  of  his 
guilt;  and  to  douljt  his  guilt  (if  the  doubt  be  a  reasonable  one)  is  to 
ac(iuit.  The  doubt  of  guilt  cannot  be  of  a  less  degree  than  the  douliC 
of  sanity;  and  if  the  doubt  of  sanity  be  a  reasonable  doubt,  the  doubt 
of  guilt  must  also,  and  necessarily,  be  a  reasonible  doubt. 

It  has  been  said  that  this  reasonable  doubt  goes  only  to  the  corpus  delicti, 
the  body  of  the  offense.  We  scarcely  know  in  what  sense  the  words 
corpus  delicti  are  here  intended  to  be  used.  But  in  whatever  sen:?e 
the}'  may  be  intended  to  be  used,  the  proposition  is  probably  erroneous. 


>4  Wackstone    Com.  195;  2  Chltty  Cr.  =  Crimes  Act,  Gen.  Stat.  31.9,  320,  sects.  C. 

Law,  724 ;  3  Coke  Inst.  47.  'i ,  12. 

3  Gen.  Stat.  850,  dm.  Code,  sect.  228. 


BURDEN   OF    I'UOOF    ON    PROSECUTION, 


4tJl 


State  V.  C'mwfortl. 


ects.  C. 
lis. 


If  it  be  said  that  tlie  offence  itself,  witii  all  its  essential  ingredients 
(and  this,  in  fact,  is  what  constitutes  the  body  of  the  offense,  the  corjius 
delicti)  must  be  proved  bej'ond  a  reasonable  doubt ;  but  that  the  de- 
fendant's connection  therewith  and  hiscai)acity  to  commit  the  same  may 
be  proved  by  a  less  degree  of  evidence,  then  the  proijosition  is  glaringly 
erroneous.  For  if  the  su[)posed  offence  be  committed  by  the  defendant 
alone,  then,  unless  he  has  capacity  to  commit  an  offence,  no  offence  is 
in  fact  committed.  And  if  it  devolves  upon  the  defendant  to  piove  his 
want  of  capacity  (when,  possibly,  a  vast  amount  of  evidence  is  intro- 
duced by  both  parties,  and  on  each  side  of  the  question),  by  an  equi- 
librium of  the  evidence,  by  less  than  a  preponderance  of  the  cxidence. 
then  it  follows  as  a  logical  nccessit}'  that  the  offence  itself  may  be 
proved  by  less  than  a  preponderance  of  the  evidence.  Witli  cai)acity 
in  the  perpetrator  a  crime  is  committed.  "Without  cai)acity  no  cri<ne  is 
committed.  The  capacit}''  is  proved  by  less  than  a  preponderance  of 
the  evidence ;  therefore,  the  crime  itself  is  proved  by  less  than  a  pre- 
ponderance of  the  evidence.  The  plea  of  insanit}'  is  not  in  any  sense 
like  the  plea  of  confession  and  avoidance.  The  defendant  does  notsaj- 
liy  his  plea  of  insanity:  "It  is  true,  I  have  committed  mnider  as 
charged  in  the  indictment,  but  I  was  insane  at  the  time,  and  therefore 
should  not  be  punished  therefor ;  "  for  if  he  committed  murder  he  could 
not  have  been  insane  ;  and  if  he  was  insane  he  could  not  have  committe<l 
murder.  The  two  things  are  wholly  inconsistent  with  each  other.  But 
the  defendant  does  say  by  the  plea :  "  I  am  not  guilty  of  murder  at  all, 
nor  of  any  other  offence,  because  I  was  insane  at  the  time  the  supposed 
offence  was  committed,  and  was  therefore  incapable  of  connnitting  an}- 
offence."  Neither  is  the  plea  of  insanit}'^  an  affirmative  plea  on  the 
part  of  the  defendant.  It  is  merely  a  part  of  the  negative  i)!ea  of 
'•not  guilty."  All  evidence  of  insanity  is  given  under  this  negative 
plea  of  "■  not  guilty,"  and  it  is  given  merel}-  in  the  rebuttal  of  the  prima 
f(tcie  case  that  the  State  must  make  out  of  guilt  and  sanity.  The  de- 
fendant is  never  required  to  prove  that  he  is  not  guilty  by  proving  that 
he  is  insane ;  but  the  State  must  alwaj-s  prove  that  the  defendant  i^ 
guilt}''  by  proving  that  he  is  sane.  It  is  true  that  the  State  is  not  re- 
quired in  the  first  instance  to  introduce  evidence  to  prove  sanity,  for  the 
law  p-^sumes  that  all  persons  are  sane,  and  this  presumption  of  sanity 
takes  the  place  of  evidence  in  the  first  instance.  It  answers  for  evi- 
dence of  sanity  on  tlie  part  of  the  State.  But  if  evidence  is  introduced 
which  tends  to  shake  this  presumption,  the  jury  must  then  consider  the 
same,  and  its  effect  upon  the  main  issue  of  guilty  or  not  guilty,  and  if, 
upon  considering  the  whole  of  the  evidence   introduced  on  the  trial, 


4r)2 


THE    BURDEN    OF    I'UOOF   OF    INSANITY 


State  V.  Cravvfonl. 


together  with  the  presumption  of  sanity,  the  presumption  of  innocence, 
and  Jill  other  legal  presumptions  applicable  to  the  case  under  tlie  e\  1- 
dence,  there  should  be  a  reasonable  doubt  as  to  whellier  the  defendant 
is  sane  or  insane  he  nnist  be  acquitted.  It  is  also  true  that  when  it  is 
sliown  on  the  trial  of  a  case  that  the  defendant  has  committed  an  act 
wliich  would  be  criminal  if  he  were  sane,  and  no  evidence  of  insanity  lias 
been  introduced,  a  prima  facie  case  of  crime  and  guilt  has  been  madf 
out  by  the  State  against  tlie  defendant.  But  the  law  does  not  in  sucli  ;i 
case,  nor  in  any  case  require  tliat  the  prima  facie  proof  of  crime  and 
guilt  made  out  bj'  the  State  shall  prevail,  unless  it  shall  be  overcome  b}-  a 
preponderance  of  the  evidence.  The  State  nearly  always  maives  out  a 
prima  facie  case  of  crime  and  guilt  before  it  closes  its  evidence  in  chief 
and  rests  its  case.  But  the  defendant  is  never  then  bound  to  rebut  this 
prima  facie  case  by  a  preponderance  of  the  evidence.  He  is  required 
only  to  raise  a  reasonable  doubt  as  to  his  guilt.  The  burden  of  proof  is 
alwavs  upon  the  State,  and  never  shifts  from  the  State  to  the  defendant. 
The  making  out  a  2)rima  facie  case  against  the  defendant  does  not  shift 
the  burden  of  proof.  With  the  view  that  we  have  taken  of  this  question, 
considering  it  to  be  governed  principally  by  our  own  statutes,  it  makes 
but  little  difference  what  the  common  law  was  upon  the  subject,  or  what 
sundry  courts  have  supposed  it  to  be ;  but  we  would  refer,  however, 
to  the  foll<iwing  decisions  of  courts  as  sustaining  the  view  we  have 
taken:  State  v.  Bartlelt,^  Hoppsy.  People,'^  Chase  v.  Pe02ile,^  Poik  v. 
State,^  Stevens  v.  State,^  People  v.  Garbutt^^  People  v.  McCann.' 
Smith  V.  Co7nmomoealth ;  ^  and  in  this  connection  see  Ogletres  v  State.'^ 
With  regard  to  the  common  law,  we  suppose  it  will  be  conceded  that  it 
was  a  rule  of  the  common  law,  that  it  devolved  upon  the  State  to  prove 
the  guilt  of  a  defendant  in  a  criminal  action  bej'oud  a  reasonable 
doubt.  We  will,  also,  suppose,  for  the  sake  of  argument,  that  said 
rule  had  some  exceptions,  and  that  proof  of  insanity  was  one  of  them. 
If  so,  then  our  statutes  have  re-enacted  the  rule  of  the  common  Liav 
without  the  exception,  and  by  so  doing  the  statutes  have  unquestionably 
made  the  rule  general  and  abolished  the  exceptions. 

The  judgment  was  reversed. 


Brewer,  J.,  concui'ring. 


>  43  N.  H.  224,  228. 
a  31  111.  385,  393. 
'  40  111.  352. 
♦  19  Ind.  170. 
6  31  Ind.  485. 


e  17  Mich.  9,21. 

'  16  N.  Y.  58,  64. 

8  1  Duv.  (Ky.)  224,  228. 

•  28  Ala.  693 ;  1  Bisb.  Criu.  Proc.  sect.  534. 


PliOPLE    V.    GARBUTT. 


4(i;3 


Syllabus. 


innoceneo. 
ier  the  c\  i- 
I  defendant 
t  when  It  is 
itted  an  act 
nsanity  has 

been  nuulL' 
ot  in  sneh  a 

crime  and 
reome  by  a 
lakes  out  a 
ice  in  ciiiof 
'  rebut  this 
is  required 
of  iH'oof  is 
defendant. 
!S  notsliift 
3  question, 
i,  it  makes 
3t,  or  what 
,  however, 
V  we  liavc 
,^  Polk  V. 
McCann.' 

V  State.'* 
ed  til  at  it 
5  to  prove 
easonablo 
that  saiil 

of  them, 
nmon  law 
!Stionably 

'■versed. 


c,  sect.  534. 


BURDEN    OF    PROOF  -  DRUxVKENNESS  _  HEREDITARY    INSANITY 

INSANITY  IN  RELATIVES  -  EVIDENCE.       '"''"''^^^^  ~ 

People  v.  Gakbutt. 

[17  Mich.  ',).] 
In  the  Supreme  Court  of  Michigan,  April  Term,  1868. 


Hon.  Thomas  M.  Coolkv,  Chief  Justice. 

Isaac  P.  Ciu{i.stia.\cv,  x 

Jamks  V.  Campbkii       \   t        ■ 

n...r  ;,  "  '     ( dissociate  Justices. 

Benjamin  F.  Gkaves,    1 


'■  Tf  cSr''""'''""''^  '"  "'"*"■"•  ^"'^'•''^  '^'-"'"^-  -  ^'^^-ce  to  the  commission 

3.  Irrelevant  Evidence. -G.  being  indicted  for  murder  pleads  insanity.    The  opinion  nf 

4.  An  Hereditary  Tendency  to  insanity  in  the  prisoner  may  be  shown 

From  the  Recorder's  Court  at  Detroit. 

Wm.  L.  Stoughton,  Attorney-General,  for  the  People 

S.  Lamed,  for  the  defendant. 

C001.EY,  C.  J.— The  defendant  was  convicted  in   the   Recorder'* 
Court  of  the  City  of  Detroit,  on  an  infor.nation  eharging  tif  :  u' ", 
mi.rder  of  one  La  Pla.tte.     On  the  trial,  it  was  shovv.i  that  La  P  ante 
and  a  young  woman  named  Emily  Boucher  were  coming  down  Wood 
ward  Avenue  together  on  the  aftei-noon  of  September  21,  18G7   when 
they  were  overtaken  by  the  defendant,  who,  after  a  few  words   fired  a 
p..stolat  La  Plant.,  wounding  hi.a  mortally.     No  question  wtls  made 
h  t  LaPlante  died  of  this  wound;  but  it  was  insisted  on  behalf  of 
defendant  that  it  was  inrticted  by  him  under  eircumstanees  of  grea 
provocation,   suffleient  to   reduce   the  offence  from  murder  to  ma.i- 
slaughter,  and  it  was  further  claimed  that  he  was  at  the  time  mentally 
.ncompeent  of  a  criminal  intent,  the  reason  being  temporarily  o^r- 
thrown  through  the  combined  influenee  of  bitoxieatrng  dr  nk,  the  'eat 
provocation,  and,  perhaps,  of  hereditary  tendencies  also  ^ 


464 


THE    BURDRN    OF   PKOOF   OF    IXSAMTY. 


People  V.  Garhutt. 


The  defendant's  statement  went  to  show  that  he  was  engaged  to  bo 
married  to  Emily  Boucher,  tlie  first  day  of  May,  18<!8,  being  fixed  upon 
for  the  ceremony ;  that  he  visited  her  twice  a  week,  and  hud  si)ent  tlie 
evening  of  Tuesday,  September  18th,  with  her  as  usual,  but  whn 
informed  by  his  mother  on  the  next  day  of  rumors  that  Emily  was  to  be 
married  to  La  Plante  ;  that  these  rumors  received  confirmation  from  the 
statements  of  others  who  added  the  circumstance  that  La  Plante  — whu 
would  appear  to  have  been  in  bettor  circumstances  than  the  defendant  — 
had  deeded  lier  forty  acres  of  land  ;  that  defendant  came  to  Detroit  on 
the  day  of  the  homicide,  saw  La  Plante  and  Emily  get  into  a  buggy 
together;  followed  them  to  a  millinery  shop  where  he  succeeded  in 
getting  an  interview  with  her  which  he  ilescribcs  as  follows:  — 

"I  said,  'I  iiear  you  are  going  to  get  married  to  La  Plante.'  Slio 
said,  'Yes.'  I  said,  'Do  you  love  him  better  than  uie?'  She 
made  no  rei)ly.  I  said,  '  Do  j'ou  love  him  or  his  property?'  She  saiil 
nothing.  I  went  closer  to  her,  put  m}'  arm  around  her  and  kissed  her. 
and  said,  'Emma,  are  j'ou  going  to  do  as  you  promised?'  Slio 
answered,  '  Come  up  in  the  morning  and  I  will  tell  you.'  She  made  no 
resistance  when  I  kissed- her,  but  said :  'You  must  be  careful  '  "NVo 
parted,  and  she  got  into  a  buggy ;  we  got  to  the  house  No  58  Dubois 
Street,  from  there  I  don't  know  where  I  went.  Other  evidence  showed 
that  he  went  immediately  for  the  pistol  with  which  the  fatal  wound  was 
inflicted,  but  it  tended  to  corroborate  the  statement  of  the  prisoner  as 
to  his  engagement,  and  there  was  also  evidence  tending  to  show  that 
he  was  at  this  time  considerably  under  the  influence  of  liquor. 

(Omitting  rulings  on  other  points. ) 

As  bearing  upon  the  question  of  insanity  a  witness  for  the  defence 
who  had  been  in  the  army  with  defendant  was  asked  to  say  whether  ho 
saw  during  any  engagements,  any  undue  and  unnatural  excitement 
about  the  defendant.  This  question  was  objected  to  and  excluded  by 
the  Recorder,  and  we  think  correctly.  The  opinions  of  witnesses  as  to 
what  is  undue  and  unnatural  excitement  in  time  of  battle  cannot  genoi- 
ally  afford  ground  for  safe  conclusions  as  to  a  person's  mental  condition 
years  afterwards,  unless  it  appears  that  the  excitement  actuall}'  masterod 
the  intellect  and  deprived  the  person  of  ac^  iintability.  which  we  do  not 
understand  was  pretended  here. 

Tlie  most  important  questions  arise  upjn  the  exclusion  by  the  Ro- 
corder  of  evidence  offered  to  show  the  insanitj-  of  a  brother  of  the  pris- 
oner, and  upon  his  charge  to  the  jury  and  refusals  to  charge  as  requested 
on  behalf  of  defendant. 

Those  questions  which  relate  to  the  discovery  and  proof  of  insanity 


igeil  to  he 
[ixod  upon 
spent  the 
,  but  ^va^ 
was  to  l)c 
111  from  tilt' 
ite  —  who 
fomlant  — 
Detroit  on 
J  a  bucgy 
ccoetled  in 

.ntc'  She 
jie  ?  '  She 
She  said 
kissed  lier. 
,cdr'  She 
le  made  no 
eful  '  We 
1 58  Dubois 
lice  showed 
ivoinid  was 
prisoner  as 

show  that 

r. 

lie  defence 

rhether  he 

jxcitenient 

tcluded  by 

Icsses  as  to 

jnot  gener- 

|l  condition 

'  mastered 

I  wo  do  nut 

|)y  tlie  Re- 

pf  the  pris- 

requesled 

jf  insanity 


HKUKDITARY    INSANITY. 


465 


Evidence  of,  AdinissUuc. 


in  criminal  cases  are  perhaps  the  most  difficult  of  any  witli  which  courts 
and  juries  are  compelled  to  deal.  Mental  disease  is  itself  so  various  in 
eliaracter,  so  vague  sometimes  in  its  manifestations,  and  so  deceptive, 
especially  in  its  early  stages,  and  its  causes  arc  so  subtle  and  so  diflicult 
to  trace,  that  the  most  experienced  medical  men  are  sometimes  ol)ligcd 
to  confess  that  however  careful  and  thorough  their  investigations,  they 
>till  prove  unsatisfactory,  leaving  the  mind  not  only  in  a  condition  of 
painful  uncertainty  upon  the  principal  question  whether  mental  disease 
actually  exists,  but  when  its  actual  presence  is  demonstrated,  failing 
ntterly,  in  many  cases,  to  trace  it  to  an^'  suflicient  cau>^e.  Ihis  fact  is 
very  forcibly  brought  home  to  us  by  the  conflicting  views  expressed  on 
ciimiual  trials  by  careful,  experienced,  and  conscientious  medieal  men, 
who,  regarding  the  same  state  of  facts  in  the  light  of  their  scientific  in- 
vestigations and  actual  but  diverse  experience,  are  forced  to  express 
different  views,  in  consequence  of  which  juries,  in  these  difficult  cases, 
are  sometimes  left  in  a  state  of  greater  doubt  and  difficulty,  if  possible, 
than  if  no  such  evidence  had  been  given.  The  case  of  Freeman  v. 
People,^  and  the  more  recent  and  noted  case  of  the  forger  Huntington, 
are  conspicuous  instances  in  illustration  of  this  truth,  but  others  will 
readily  occur  to  the  mind. 

The  defence  sought  to  show  hereditaiy  tendencj-  to  insanity  on  the 
part  of  the  defendant.  That  insane  tendencies  are  transmitted  from 
parent  to  child,  there  is  no  longer  a  doubt ;  and  though  it  was  once 
rnled  that  proof  that  other  members  of  the  same  famil}-  have  decidedly 
heen  insane  is  not  admissible,  either  in  civil  or  criminal  cases, ^  yet  this 
ruling  has  since  been  rejected  as  unphilosophical  and  unsound,  and  it  is 
now  allowed  to  prove  the  insanity  of  either  parent,  or  even  of  a  more 
remote  ancestor,  since  it  is  well  established  that  insanity  sometimes  dis- 
appears in  one  generation  and  reappears  again  in  the  next.^ 

In  the  case  at  bar  it  was  not  claimed  that  either  paient,  or  anj-  other 
ancestor,  had  been  insane  ;  but  the  defence  offered  to  show  that  insanity 
had  been  developed  in  a  brother  arising  from  a  cause  similar  to  that 
which,  it  was  alleged,  had  induced  the  destructive  act  of  the  defendant ; 
and  this  fact  was  sought  to  be  placed  before  the  jury  as  throwing  some 
light  on  the  defendant's  conduct  and  accountabilitj'. 

Although  this  evidence  could  not  be  very  satisfactory  in  character,  we 
tliink  it  was  legally  admissible.  It  is  now  generally  believed  that  other 
things  besides  actual  mental  disease  in  the  parents  maj'  cause  the  trans- 


'  4 1)cnio,9. 

=  McAdiim  V.  Walker,  1  Dow.  P.  C.  U8, 174 ; 
Chitty's  Med.  Jur.  354,  355. 
30 


3  Taylor's  Med.  Jur.  628,  629,  and    cases 
cited ;  Whart.  &  StiUe's  Med.  Jur.  85,  et  seq. 


46G 


THE    BUIIUKN    OF    I'UOOF   OF    IXSANITY. 


People  V.  (i«rl)ult. 


S(l 

I 


mission  of  taints  to  their  offspring,  ^vlli^'ll  result  in  sonic  cases  in  idiocy 
or  insanit}'.  The  cliildrcn  of  habitual  driinkanls  are  tlionght  to  be  niiic  li 
more  sii.soeptil)]e  to  mental  disease  than  those  of  persons  Avhose  hal)it> 
have  bcHMi  correct  and  regular,  and  the  medical  oj)inion  has  been  ex- 
pressed that  tlic  children  of  those  who  are  married  late  in  life  are  ah 
more  subject  to  insanity  than  those  born  under  other  circumstaiice> 
Hut  it  sometimes  occurs  that  ])crs()ns  in  vigorous  health  and  correct 
habits,  who  have  nevertheless  eiiteied  into  a  marriage  whidi  violate^ 
some  i)h3-siological  law,  may  become  parents  of  weak  and  diseased  chil- 
dren only,  so  that  insanity  enters  the  family  for  tlic  llrst  time  in  tin 
[)erson  of  the  children,  but  through  (qualities  derived  exclusively  from 
the  ■•^rentage.  JMclancholy  examples  of  this  fact  arc  presented  sonu- 
ti  . '  .J  the  case  of  the  intermarriage  of  near  relatives.  The  reasons 
f  c -i  arc  not  fully  understood,  and  cannot  be  cxi)lained.  We  can 
only  say  uf  such  cases,  that  observation  tcaclics  us  the  existence  of  ii 
law  of  Matui"  '  ^lich  cannot  be  broken  with  impunity,  but  the  full  l)oun(l- 
aries,  extent,  an  1  force  of  which  we  are  as  yet  xuuiblc  to  fully  compre- 
hend, point  out  and  explain.  But  thei'c  are  other  cases  where  we  may 
be  able  to  discover  effects  without  the  ability  to  point  out  either  tlie  law 
or  the  causes  which  produce  them.  AVhat  peculiar  combination  of  qual- 
ities in  parents  may  tend  to  produce  mental  perversion,  weakness,  or 
disease  in  children,  must  forever  renuiiu,  in  many  cases,  matter  ol' 
profound  mystery.  If  a  family  of  several  children  should  be  found, 
without  known  cause,  to  be  idiotic,  or  subject  to  mental  delusion,  the 
infeiencc  of  hereditary  transmission  "would  in  many  cases  be  entirely 
conclusive,  notwithstanding  the  inability  to  point  out  anything  of  shui- 
lar  character  in  any  ancestor.  Insanity  in  a  part  of  the  children  only 
would  be  less  conclusive  ;  but  the  admissibility  of  the  evidence  in  these 
cases  cannot  depend  upon  its  quantity,  and  it  could  never  be  required 
that  it  should  amount  to  a  demonstration.  In  some  cases  its  force  must 
be  small;  in  others  it  will  prove  hereditary  taint  with  great  directness. 
We  think  evidence  of  mental  unsoundness  on  the  part  of  a  brother  oi' 
sister  of  the  person  whose  competency  is  in  question  is  admissible,  and 
that  the  jury  should  be  allowed  to  consider  it  in  connection  with  all  the 
other  evidence  bearing  upon  that  subject. 

The  counsel  for  the  defendant  retiuested  the  court  to  charge  the  jury 
that  if  they  believed  the  defendant  was  intoxicated  to  such  an  extent 
as  to  make  him  unconscious  of  what  he  was  doing  at  the  time  of  the 
commission  of  the  offence,  the  defendant  must  be  acquitted. 


'  TaylorV  Med.  Jur.  029. 


I  in  idiocy 

olU'  llllK  ll 

rxse  luil)it> 
s  been  i'\- 
'e  are  also 
nstauces. ' 
id  corrcci 
•ll  violixtt> 
jased  cliil- 
imc  in  tin 
ivcly  from 
ited  sonu- 
iie  reasons 
"We  c:iii 
itcnee  ol'  :i 
fuUltound- 
[y  conipn - 
ire  we  may 
lier  tlie  law 
[on  of  qual- 
akness,  or 
matter  ol' 
be  found, 
lusion,  tlir 
)e  entirely 
lor  of  sinii- 
Idren  only 
■e  in  tliesu 
|c  required 
orce  niusi 
ireetness. 
Ibrother  or 
sible,  and 
ith  all  the 

[e  the  jury 

an  extent 

Ime  of  the 


DUINKEN'NESS    NO    EXCUSE    FOIl   CRIME. 


407 


Hurdun  of  Proof  of  Insanity. 


A  doctrine  like  this  would  be  a  most  alarming  one  to  admit  in  the 
criminal  jurisprudence  of  the  country,  and  we  think  the  Recorder  was 
light  in  rejecting  it.  A  man  who  voluntarily  puts  himself  in  condition 
to  have  no  control  of  his  actions,  must  be  held  to  intend  the  coiise- 
([iiences.  The  safety  of  the  community  reciuires  this  rule.  Intoxica- 
tion is  so  easily  counterfeited,  and  when  real  is  so  often  resorted  to  as 
a  means  of  nerving  the  person  up  to  the  commission  of  some  desperate 
net,  and  is  withal  so  inexcusable  in  itself,  that  the  law  has  never  recog- 
nized it  as  an  excuse  for  crime.'  Whether  all  the  charges  given  by  the 
Recorder  on  this  subject  were  correct  we  do  not  feel  called  upon  to  con- 
sider, as  the  oidy  exception  to  the  charge  as  given  was  a  general  one  to 
the  whole  charge,  which  is  not  sufUcient,  when  a  part  of  it  is  correct, 
to  raise  (luestions  upon  other  parts. 

The  defendant's  counsel  also  requested  the  court  to  charge  the  jury 
tliat  sanil  y  is  a  necessary  element  in  the  commission  of  crime,  and  must 
lie  i)roved  by  the  prosecution  as  a  part  of  their  case  whenever  the  de- 
fence is  insanity.  Also,  that  where  the  defence  makes  proof  of  insan- 
ity, partial  or  otherwise,  whenever  it  shall  be  made  to  api)ear  from  the 
evidence  that  jirior  to,  or  at  the  time  of,  the  offence  charged,  the  pris- 
oner was  not  of  sound  mind,  but  was  alUicted  with  insanity,  and  such 
:itIlietiou  was  the  clllcicnt  cause  of  the  act,  he  ought  to  be  acquitted  by 
Uie  jury.     These  retiuests  were  refused. 

It  is  not  to  be  denied  that  the  law  api)licable  to  cases  of  homicide 
where  insanity  is  set  up  as  a  defence,  is  left  in  a  great  di'al  of  confusion 
u[H)n  the  authorities;  l)ut  this,  we  conceive,  springs  mainly  from  the 
fact  that  courts  have  sometimes  treated  the  defence  of  insanity  as  if  it 
were  in  the  nature  of  a  special  plea,  by  which  the  defendant  confessed 
the  act  charged,  and  undertook  to  avoid  the  consequences  ])y  showing 
a  substantive  defence,  which  he  was  bound  to  make  out  by  clear  proof. 
The  burden  of  proof  is  held  by  such  authorities  to  shift  from  the  prose- 
cution to  the  defendant  when  the  alleged  insanity  comes  in  question ; 
and  while  the  defendant  is  to  be  acquitted  unless  the  act  of  killing  is 
established  bc3'ond  reasonable  doubt,  yet  when  that  fact  is  once  made 
out,  he  is  to  be  found  guilty  of  the  criminal  intent,  unless  by  his  evi- 
dence he  establishes  with  the  like  clearness,  or  at  least  by  a  prcpondei'- 
ance  of  testimony,  that  he  was  incapable  of  criminal  intent  at  the  time 
the  act  was  done.^    These  cases  overlook  or  disregard  an  important  and 


'  Commonwealth  v.  Hawkins,  3  Gray,  403 ; 
I'nitcd  States  r.  Drew,  5  Mason,  28;  People 
f.  Ilainmill,  i  Parker,  223;  Pirtlo  v.  State,  9 
lluiiiph.  603. 


=  Kogina  »•,  Taylor,  4  Cox  C.  C.  155;  Re- 
gina  V.  Stokes,  3  C.  &  K.  185;  State  i'.  Briii- 
yca,  5  Ala.  241 ;  State  v.  Spencer,  21  N.  J.  (L) 
202;  State  v.  Stark,  1  Strob.  479. 


468 


THE    BURDEN    OF    I'UOOF    OF    I.NSAMTV. 


State  V.  Garbutt. 


necessary  ingredient  in  the  crime  of  murder,  and  they  strip  tlie  defend- 
ant of  that  presumption  of  innocence  whicli  the  humanity  of  the  law- 
casts  over  him  and  Avliicli  attends  him  from  the  initial  ion  of  tlio  pro- 
ceedings until  the  verdict  is  rendered.  Tims,  in  ReijiiKX  v.  T'ttylor,^  it 
is  said:  "  In  cases  of  insanity  tliere  is  one  cardinal  rule,  never  to  he 
departed  from,  viz. :  that  tlie  burden  of  proving  iiinocenee  rests  on  the 
part}'  accused."  And  in  State  v.  Spencer,-  the  rule  is  laid  down  thus: 
"  Where  it  is  admitted  or  clearly  proved  that  the  prisoner  committed 
the  act,  but  it  is  insisted  that  he  was  insane,  and  the  evidence  leaves  the 
question  of  insanity  in  doul)t,  the  jury  ought  to  find  against  him.  The 
proof  of  insanity  at  the  time  of  C(munitting  the  act  ought  to  be  clear  and 
satisfactory  in  order  to  acquit  the  prisoner  on  the  ground  of  insanity  as 
proof  of  committing  the  act  ought  to  be  in  order  to  find  a  sane  man 
guilty."  These  cases  are  not  ambiguous,  and,  if  sound  they  more  than 
justify  the  Recorder  in  his  charge  in  the  case  before  us. 

The  defendant  was  on  trial  for  murder.  Murder  is  said  to  be  com- 
mitted when  a  person  of  sound  mind  and  discretion  unlawfully  killeth 
any  reasonable  creature  in  being,  and  under  the  king's  peace,  with  mal- 
ice aforethought,  either  expressed  or  implied.-'  These  are  the  ingre- 
dients of  the  offence  ;  the  unlawful  killing,  ])y  a  person  of  sound  mind 
and  with  malice,  or  to  state  them  more  concisel}',  the  killing  with  crim- 
inal intent ;  for  there  can  be  no  criminal  intent  when  the  mental  condi- 
tion of  the  party  accused  is  such  that  he  is  incapable  of  forming  one. 

These,  then,  are  the  facts  which  are  to  be  established  by  the  prosecu- 
tion in  every  case  where  murder  is  alleged.  The  kiUing  alone  does  not 
in  any  case  completely  prove  the  offence,  unless  it  was  accompanied 
with  such  circumstances  that  malice  in  law  or  in  fact  is  fairly  to  be  im- 
plied. The  prosecution  takes  upon  itself  the  burden  of  establishing  not 
only  the  killing,  but  also  the  malicious  intent  in  every  case.  There  is 
no  such  thing  in  the  law  as  a  separation  of  the  ingredients  of  the  of- 
fence, so  as  to  leave  a  part  to  be  established  by  the  prosecution,  while 
as  to  the  rest  the  defendant  takes  upon  himself  the  burden  of  proving  a 
negative.  The  idea  that  the  burden  of  proof  shifts  in  these  cases  is  un- 
philosophical,  and  at  war  with  fundamental  principles  of  criminal  law. 
The  presumption  of  innocence  is  a  shield  to  the  defendant  throughout 
the  proceedings,  until  the  verdict  of  the  jury  establishes  the  fact  that 
beyond  a  reasonable  doubt  he  not  only  committed  the  act,  but  that  he 
did  so  with  malicious  intent. 


'  Supra. 
*  Supra. 


S3  Coke  Inst.  47;  4B1.  Com.  196;  2  Chit. 
Cr.  L.  724. 


ic  dcfeiul- 
)f  the  law 
I  the  pro- 
Tiujlor,^  il 
;ver  to  l)r 
■sts  on  the 
own  thus: 
:'oinmilte(l 
leaves  the 
lim.  The 
Q  clear  ami 
iisanity  as 
sane  man 
more  than 

;o  be  com- 
illy  killeth 
,  with  mal- 
the  ingrc- 
)und  mint,' 
with  crim- 
ital  eondi- 
ing  one. 
[e  prosecu- 

doos  nut 
[.'ompaniod 

to  be  ini- 
lishing  not 

There  is 
of  the  of- 
lion,  while 
[proving  a 

.sesis  un- 
ninal  law. 
kroughout 

fact  that 

It  that  he 


PEOPLE    V.    GAUBUTT. 


409 


IJurilfn  of  Proof  on  Prosccntion. 


It  does  not  follow,  however,  that  the  prosecution  at  the  outset  must 
give  direct  proof  of  an  actual  malicious  intent  on  the  part  of  the  defend- 
ant; or  enter  upon  the  question  of  sanity  before  the  defendant  has  con- 
troverted it.  The  nutst  conclusive  proof  of  malice  will  usually  spring 
from  the  circumstances  attending  the  killing,  and  the  prosecution 
could  not  well  be  required  in  such  cases  to  go  further  than  to  put  those 
circumstances  in  evidence.  And  on  the  subject  of  sanity,  that  condi- 
tion being  the  normal  state  of  humanity,  the  prosecution  are  at  liberty 
to  rest  upon  the  presumption  that  the  accused  was  sane,  until  that  pre- 
sumption is  overcome  by  the  defendant's  evidence.  The  presumption 
establishes,  prima  facie,  this  portion  of  the  case  on  the  part  of  the 
Government.  It  stands  in  the  place  of  the  testimony  of  witnesses,  lia- 
hle  to  be  overcome  in  the  same  way.  Nevertheless  it  is  a  part  of  the 
case  for  the  Government ;  the  fact  which  it  supports  must  necessarily  be 
established  before  any  conviction  can  be  had  ;  and  when  the  jury  come 
to  consider  the  whole  case  upon  the  evidence  delivered  to  them,  they 
must  do  so  upon  the  ba-is  that  on  each  and  every  portion  of  it  they  are 
to  1)6  reasonably  satislied  before  they  are  at  liberty  to  find  the  defend- 
ant guilty.  ■ 

This  question  of  the  luu'den  of  prcJof  as  to  criminal  intent  was  con- 
sidered by  this  court  in  the  case  of  Maker  v.  People ^^  i\\\{\  a.  rule  was 
there  laid  down  which  is  entirely  satisfactory  to  us,  and  which  we  have 
no  disposition  to  qualify  in  any  manner.  Api)lying  that  rule  to  the 
present  case,  we  think  the  Recorder  did  not  err  in  refusing  to  charge 
that  proof  of  sanity  must  be  given  by  the  prosecution  as  a  pai-t  of  their 
case.  They  are  at  liberty  to  rest  upon  the  presumption  of  sanity  until 
proof  of  tlie  contrary  condition  is  given  by  the  defence.  But  when  any 
evidence  is  given  which  tends  to  overthrow  that  presumption,  the  j  ury  are 
to  examine,  weigh,  and  pas9  upon  it  with  the  understanding  that,  al- 
though the  initiative  in  presenting  the  evidence  is  taken  by  the  defence, 
the  burden  of  proof  upon  this  part  of  the  case,  as  well  as  upon  the 
other,  is  upon  the  prosecution  to  establish  the  conditions  of  guilt. 

Upon  this  point  the  case  of  PeojAe  v.  McCann,'^  is  clear  and  satisfac- 
tory, and  the  cases  of  Commonwealth  v.  Kimball,^  Commonioealth  v. 
Dana,^  State  v.  Marler,^  Commonioealth  v.  McKee,^  Commonwealth  v. 
/io(/( /'.s, '  and  IIopps  v.  People,^  may  be  referred  to  in  further  illustration 
of  the  principle.     See  also  Doty  v.  State. ^    The  recent  ease  of  Walter  v. 


196;  2  Chit. 


»  10  Mich.  212. 

2  16  N.  Y.  58. 

3  24  Pick.  373 


*  2  Mete.  340. 
6  2  Ala.  43. 

•  1  Gray,  61. 


'  7  Mete.  500. 
8  31  in.  385. 
»  7  Blackf .  427. 


470 


TIIH    nUKDKN    OF    I'KOOF   OV   INSANITY. 


(Uiiiiiiiigliiuu  V.  State. 


Peojtlc,^  iloi'H  not  ovcrnilo  the  cnso  of  Peojilr  v.  MrCmin,  \n\\  mi  f;ir  :is 
it  <i;<H>.s  is  eiitiivly  in  li.uin  )ny  willi  tlii'  viows  hi'i«  cxprossod. 

IJnt.  it  is  clivinii'il  liiat  tlio  licconier  v.nvA  when  ho  dodiiu'd  to  charp' 
tliJit  if  it  iippouri'd  from  llio  cvideni'e  Unit  dclVndant  was  alllicled  willi 
insanity,  and  sndi  alllirtion  was  (lie  fllicient  cansi'  of  the  act,  lu?  ()[.\>j;\\\ 
to  III'  Mc'iiniltiHl  by  (lu;  jnrv.  Tliis  refusal,  however,  must  he  consjij 
ered  in  eoinieetion  with  the  einirji,e  actindly  <:!:iven,  and  we  are  not  satis- 
lied  that  other  portions  of  the  charge  (h>  not  fully  cover  the  ground. 
Were  tliis  the  sole  error  cliarged  it  might  he  necessary  to  examine  all 
the  instrui'tions  to  the  Jniy  with  some  cai'c,  to  see  if,  taken  as  ii  wlinli, 
they  could  tend  to  mislead.  As,  however,  a  new  Irial  must  he  ordeicil 
on  other  grounds,  it  doi's  not  lieeome  important  to  make  any  such  criticiil 
examination.  If  we  do  not  misapprehend  the  charge,  the  view  of  tlu' 
Recorder  seems  to  have  been  substantially  the  same  as  our  own. 

Neio  trial  onJered. 

CiiiusTiANCY,  J.,  did  not  sit. 


BURDEN  OF  PKOOF— TKST  OF  INS.VXITY  — MOKAL  INSANITY. 
CUNXIxr.llAM   V.  Statk. 

[5(1  Miss.  2(;;t ;  ;!1  Am.  Hi'p.  ;'.(;o.] 

In  the  Supreme  Court  of  Misfiissipjn,  Januaru  Term,  1870. 

Hon.  IltiUA no  F.  Simkai.i.,   Chief  Justice 

"       "•    II-t'"A..MKUS,     I  . 

"       .1.  A.  F.  CA.Ml'Ulil.l..   < 

1.  Burden  on  State  to  Prove  Sanity.  —  Wlicn  nny  facts  nic  proved  which  raise  a  doubt 

of  the  sanity  of  a  itorson  accused  of  crime,  it  devolves  on  the  State  to  remove  that  iloulii, 
and  establish  the  sanity  of  tlie  prisoner  to  llie  satisfaction  of  tlie  jury  beyond  all  rea- 
sonable doubt. 

2.  Insanity  to  Excuse  Crime  must  destroy  the  jiowcr  of  distinguishing  between  riglit 

and  wrong. 

a.  The  Doctrine  of  Moral  Insanity  disapproved. 

Conviction  of  murder.     The  facts  are  stated  in  the  opinion. 

Collins  &  liasberri/,  for  the  prisoner. 

Attorney-General  Catch  ingx,  for  the  State. 

Chalmers,  J.  —  Adeline  Cunningham  was  convicted,  in  the  Circuit 

>  ;!-2  X.  V.  u:. 


HiriMJKN    (H'    I'KOOK    ON     l'l!(  »si;(l  TIO.N . 


171 


Cuiiiiiii^'lmiii  V.  SIfilc. 


)llt.  sn  f.-ir   ;n 

I. 

I'd  lo  fhnrp' 
idliclod  Miili 
let,  ill!  oiii,r|ii 
t.  Ite  coiisiii- 
iro  not  SMti^- 
the  }j;r(>iiii(l. 
•  oxiuniiu'  all 
1  as  u  whole, 
1 1)0  onU-riil 
snt'h  criticMl 
!  view  of  till' 
own. 
I  ordered. 


5ANITY. 


1870. 


X  raiso  a  dnubi 
nvethat  (li)ul)i, 
)cyond  all  reu- 

between  riglit 


:\. 


the  Circuit 


Court  of  Cliiy  County,  of  tlio  inunliT  of  lior  huslmnd,  :ind  Hontcnced  to 

1)1-  llUIli^. 

Tliiit  she  cominitted  the  deed  sind  thiit  it  wivs  one  of  peculiiir  atrocity  is 
not  denied  or  fr-iinsiiid.  In  the  (h-ad  hourc.f  night,  whii(i  the  iiuslmnd 
lay  .sleeping  on  the  common  hed,  she  split  open  his  heiul  with  ii  hateiiet, 
without  provociilion  orniotive  as  far  as  can  Ik;  ascertained.  She  waited 
(jiiietly  till  morning  came,  and  then  freely  un. I  V(;luntarily  iivovved  the 
act  to  all  ln((iiirers,  offering  no  excuse  save  that  to  one  (jcrson  she 
staled  that'her  hushanc-  was  attem|»ting  lo  take  her  life  with  a  knife, 
wiiich,  she  said,  would  i)e  lonnd  in  the  bed,  hut  which  could  nowhere 
he  discovered. 

The  defence  set  up  for  her  is  ti-mporary  or  periodic  insanity,  pro- 
duced l»y  derangem(!iit  in  iicr  monthly  menstruations,  and  whieii,  it  is 
said,  was  liable  to  attack  her  at  each  recurring  monthly  period. 

Without  desiring  to  express  any  opinion  on  the  facts,  it  is  proper  to 
say  that  there  was  ..utlicient  evichjncc"  to  suggest  at  least  a  possibility  of 
the  truth  of  her  defence,  and  to  demand  that  the  jury  should  ho.  left 
free  to  determine  the  (luestion,  unembarrassed  by  erroneous  instructions 
ft'om  the  court. 

They  were  not  so  left.  By  the  fnsl  instruction  given  for  the  State 
they  were  informed  that  "  the  legal  presumption  of  sanity  is  not  over- 
come by  the  mere  i)robability  that  the  ])arty  was  insane,  but  will  stand 
until  overthrown  by  evidence.  :Mere  probability  of  insanity  cannot 
prevail  over  the  presumption  of  sanity,  so  as  to  Avork  the  acquittal  of 
the  party  on  the  ground  of  insanity.  For  a  defence  resting  on  the 
ground  of  insanity,  the  insanity  must  l)e  clearly  proved."  In  other 
words  the  jury  were  told  that,  though  they  believed  the  defendant 
probably  insane,  she  must  be  convicted  on  some  presumption  of  law 
whicli  overthrew  all  probabilities  of  fact. 

Is  this  a  sound  principle  of  law?  Undoubtedly  there  are  nnmerons 
authorities  which  so  declare,  as  there  are  many  also  goii,;;  far  bevond 
this,  and  holding  that  the  defence  of  insanity  can  never  avail  unless  its 
existence  is  established  to  the  exclusion  of  every  reasonable  doubt. 
There  is  perhaps  no  subject  connected  with  criminal  hiwnpon  which  the 
authorities  are  more  hopelessly  in  conflict  than  the  one  here  presented. 

Three  distinct  theories  are  held  by  courts  and  text-writers  of  the 
highest  character,  and  each  may  be  supported  by  a  long  array  of 
respectable  authorities,  viz.  :  1.  The  prisoner  must  prove  his  insanity 
beyond  a  reasonable  doubt.  2.  He  must  establish  it  by  a  preponder- 
ance of  evidence.  3.  He  must  raise  a  reasonable  doubt  as  to  his 
sanity. 


472 


THE    BUKUKN    OF    I'KOOF    OF    INSANITY 


C'iiiiiiiii;;;liiiiii  v.  StatL'. 


The  first  of  these  views  receives  most  countenance  from  English 
adjudiciitions  and  text-books;  the  Kecoiid  is  supported  by  a  majority  of 
tlie  American  courts  ;  wliile  the  third,  tliough  lu-ld  as  yet  jjerliapa  by  a 
minority  of  the  adjudged  cases,  is  gaining  in  favor,  is  tiic  well  settled 
law  in  many  of  the  States,  and  is  supported  by  a  power  isoning 

which  we  deem  convincing. 

Kvery  indictment  charges  the  commission  of  a  criminal  act  by  a 
responsil)le  being,  and  no  conviction  can  occur  until  the  jury  shall  have 
been  satisfied  be^'ond  all  reasonable  doubt  that  such  an  act  has,  Ity 
such  a  being,  been  committed.  Sanity  is  the  normal  condition  of  the 
intellect ;  so  that  when  the  party  indicted  is  seen  to  \w  a  human  being, 
the  presumption  of  the  law  (because  it  is  ihe  i)re('Umption  of  cummou 
sense)  is  that  the  person  is  sane.  Hence  in  the  absence  of  evidence  to 
suggest  the  contrary,  the  Jury  acts  on  this  presumption,  and  the  deed 
being  pr(jven,  the  conviction  follows.  But  if  in  proving  the  deed,  evi- 
dence is  offered  which  suggests  a  doubt  of  the  party's  sanity,  the  State 
must  promptly  niet't  it,  and  this  without  regard  to  the  side  from  which 
the  proof  suggesting  the  doul)t  comes.  The  law  clothes  t'  accused 
with  a  i)rcsumption  of  innocence  whicli  he  never  loses  until  diet  of 

conviction  has  been  i)ronounced.  He  pleads  nothing  affinnatnciy,  save 
in  rare  and  exceptional  instances,  but  by  his  plea  of  not  guilty  he  puts 
ui)on  the  State  the  burden  of  establishing  every  fact  necessary  to  con- 
stitute guilt.  The  changing  phases  of  the  evidence  may  make  his  case 
at  various  stages  wear  various  aspects.  At  one  moment  it  may  seem 
that  his  guilt  has  been  conclusively  shown,  and  at  the  next  it  may 
ap[)ear  to  have  been  as  conclusively  negatived ;  but  his  owa  attitude 
never  changes.  To  every  fresh  development  and  every  new  cir- 
cumstance he  repeats  his  plea  of  not  guilty,  and  in  every  new 
complication  he  rests  upon  his  legal  presumption  of  innocence. 
The  testimony  offered  against  him  may  indeed  necessitate  the  pro- 
duction of  something  on  his  part  to  meet  the  case  as  made  out ;  l)ut 
it  can  never  do  this  until,  uncontradicted  and  unexplained,  it  has  demon- 
strated his  guilt  beyond  a  reasonable  doubt.  Shall  it  be  said  that 
because  this  has  been  accomplished  at  some  particular  stage  of  the 
testimony,  the  burden  of  proof  has  shifted,  and  thenceforward  the  duty 
is  imposed  upon  him  of  re-establishing  his  innocence  beyond  all  rea- 
sonable doubt  ?  Nobody  would  venture  so  to  assert,  if  the  demonstration 
of  guilt  so  made  out  was  in  regard  to  the  commission  of  the  act.  Wh}" 
should  the  rule  be  different  in  reference  to  the  mental  accountability  of 
the  defendant?  There  can  be  no  crime  without  mental  accountability, 
and  it  is  just  as  essential  to  show  the  conscious  mind  as  the  unlawful 


BllJUKN    OF    I'UOUF    ON    1'1{0!*KCLT10.N. 


473 


Till'  AiM;imR'iits  tor  this  Tluoiv. 


n  Enijlish 
lajority  of 
laps  Ity  :i 
•fll  sou  led 
isoniiig 

act  l)y  a 
shall  liave 
■t  has,   liy 
ion  of  the 
lan  boing, 
f  foimiioii 
s'icleiifc  to 
I  the  deed 
(lei'd,  evi- 
,  the  State 
om  which 
accused 
diet  of 
\ciy,  save 
y  he  puts 
■y  to  coii- 
liis  case 
nay  seem 
t  it  may 
attitude 
new  cif- 
ery    new 
nocence. 
tlie  pro- 
ut ;  but 
demon- 
aid  that 
le  of  the 
|tlie  duty 
all  rea- 
istration 
Why 
ility  of 
ability, 
niawful 


act.  But  it  is  said  that  the  law  pi-esumes  sanity.  So  the  law  pfcsunies 
tnalicc  fioin  tlie  fact  of  killing;  but  if  iiiiytliinj;  in  the  testimony,  either 
ni  the  State  oi'  of  the  defendant,  siitrgests  a  reasonaldc  dntdit  of  its 
ixistence,  nobody  ever  su))posed  tlwit  the  State  eould  stop  short  of 
removing  this  doubt,  anil  of  establishing;  the  malice  to  a  moral  cer- 
tainty. 

The  presumptions  or  implications,  wliieli  in  criminal  eases  the  law 
deduces  from  the  establislui'-Mit  of  paiiicular  fails,  have  no  other  force 
tlian  to  dispense  with  fuilhei  ;u'oof  of  tiie  thing  preMuned,  uidesssotne- 
thing  in  the  testimony,  either  tneretofore  or  thereafter  offered,  suggests 
a  doubt  of  the  existence  of  the  presumed  fact.  lint  the.moment  that 
doubt  is  engendered  in  reference  to  it,  if  it  be  as  to  a  fact  necessary  to 
conviction,  the  State  must  establish  the  fact  independently  of  the  pre- 
sumption ;  and  the  ol)ligation  to  do  this  rests  continuously  ujxm  her. 
The  accused  need  do  nothing  save  repose  upon  the  presumption  of 
innocence  with  which  the  law  has  cloth'  ( I  him,  and  claim  the  benelit  of 
all  the  doubts  which  the  testimony  has  evolved. 

Apply  these  principles  to  the  question  of  sanity.  Because  he  is  a 
liuman  being,  the  accused  is  presumed  to  be  sane.  lie  nuist  be  sane  in 
order  to  l)e  guilty.  The  trial  commences  with  the  presumption  that  he 
is  so.  If  notiiing  in  the  testimony  suggests  otherwise,  there  is  no  obli- 
gation to  establish  it ;  but  the  moment  the  proof  warrants  a  reasonable 
doubt  of  it,  no  matter  from  which  side  it  comes,  that  doubt  must  be  re- 
moved. Which  side  must  remove  it?  Manifestly  that  side  which  set 
out  to  show  guilt,  because  there  can  be  no  guilt  without  sanity.  That 
condition  of  sanity  which  is  ordinarily  the  attribute  of  all  men  has 
been  rendered  doubtful  as  to  this  particular  man,  and  as  his  giult  de- 
pends upon  his  sanity,  its  existence  must  be  shown  in  the  same  manner 
and  to  the  same  extent  as  any  of  the  other  elements  which  go  to  make 
up  the  crime.  What  logic  or  consistency  can  there  be  in  saying  that  all 
the  other  elements  must  be  established  be3'ond  a  reasonable  doubt,  but 
that  this  one  —  certainly  as  essential  as  any  other — may  be  assumed 
on  less  satisfactory  proof?  True,  the  case  started  with  the  theory  that 
it  existed,  but  can  this  in  any  wise  affect  the  condition  in  which  it  must 
be  left  at  the  close,  if  it  has,  during  the  progress  of  the  trial,  been  ren- 
dered doubtful?  How  can  a  jury  say,  "  We  have  no  doubt  of  the  guilt 
of  the  prisoner,  but  we  do  doubt  whether  he  was  sane?  "  If  a  jury  in 
a  capital  case  should  bring  in  such  a  verdict  would  it  not  be  judicial 
murder  to  inflict  a  sentence  of  death?  And  yet  man}'  such  A'erdicts  are 
practically  inevitable  under  a  theory  of  the  law  which  holds  that  the 
burden  of  proving  insanity  rests  upon  the  accused,  and  that  he  must  be 


474 


THE  BUUDEX  or  I'uoor  of  insanity. 


Cuniiiuufhiiin  i'.  Statu. 


convicted  unless  he  has  cleai'ly  proved  it  beyond  all  probability,  or  be- 
yond all  reasonable  doubt. 

We  think  the  true  rule  is  this :  Every  man  is  presumed  to  be  sane,  and 
in  the  absence  of  testimony  engendering  a  reasonable  doubt  of  sanity, 
no  eviilence  on  the  subject  need  be  offered  ;  but  whenever  the  question 
of  sanity  is  raised  and  put  in  issue  by  such  facts,  proven  on  eitliersido. 
as  engender  such  doubt,  it  devolves  upon  the  State  to  remove  it,  and  to 
establish  the  sanity  of  the  prisoner  to  the  satisfaction  of  the  jury,  be- 
yond all  reasonable  doubt  arising  out  of  all  the  evidence  in  the  ease. ' 

When  we  speak  of  insanity  as  an  excuse  for  crime,  we  refer,  of 
course,  to  such  degree  of  insanity  as  disqualifies  from  a  proper  percep- 
tion of  the  difference  between  right  and  wrong,  and  thereby  shields  its 
victim  from  legal  accountability  for  his  acts.- 

We  find  in  the  record,  among  the  instructions  asked  by  the  defend- 
ant, one  numbered  twelve,  in  which  the  rule  here  laid  down  is  an- 
nounced—  to-wit,  that  the  jury  must  acquit  if  they  entertain  a 
reasonable  doubt  of  the  sanity  of  the  accused.  This  instruction  is 
ne'ther  marked  "  given"  nor  "  refused,"  and  we  h.*ve  no  meansof  dis- 
covering what  was  the  action  of  the  court  upon  it.  If  it  was  refused, 
such  refusal  was  erroneous,  because  it  correctly  enunciated  the  law.  If 
it  was  given,  it  was  in  direct  conllict  witli  the  fifth  instruction  for  tlie 
State,  upon  which  we  have  been  commenting,  and  the  giving  of  conflict- 
ing instructions  is  erroneous. 

The  ninth  instruction  asked  by  the  defendant,  and  refused  by  the 
court,  »vas  in  these  words  :  "■  When  the  delusion  of  a  party  is  such  that 
he  has  a  real  and  firm  belief  of  the  existence  of  a  fact  which  is  wliolly 
imaginary,  and  under  that  insane  belief  he  has  done  an  act  which  would 
be  justifiable  if  such  fact  existed,  he  is  not  resjjonsible  for  such  act. 
Nor  is  a  party  resi)onsible  for  an  act  done  under  an  uncontrollable 
impulse  which  is  the  result  of  mental  diseasir." 

The  doctrine  announcec'  in  the  first  clause  of  this  instruction  first 
found  distinct  utterance  in  the  celebrated  i)rosecutions  of  Ilailjield  for 
the  attempted  assasination  of  King  Geoi-ge  III.,^  and  owes  its  birth  and 
adoption  into  the  English  law  to  the  genius  and  eloquence  of  Erskinc. 
It  has  been  repeatedly  since  recognized  both  in  England  and  Americu, 
notabl,y  in  this  country  in  Commonvealthv.  Rogers,'^  and  in  Eoherts  v. 
State  J>     Of  its  correctness  there  can,  we  think,  be  no  doubt.     Indeed, 


1  Pollard  r.  state,  53  Miss.  410;  People  v. 
McCiuin,  l(i  N.  V..'it-;  State  c.  IJarllett,  4;;  N. 
1I.2J4;  Statu  r-.  Crawfoid,  11  Kan.  .32;  l»olk 
V.  State,  I'.i  Ind.  170;  Mopps  r.  People,  31  111. 
;J85;  Ogletreo  v.  Slate,  JS  Ala.  701. 


a  novard'8  Case,  30  Miss.  GOO. 
3  27  How.  St.  Tr.  T-'sl. 
*  7  Mete.  .-iOO. 
'>  3  Ga.  310. 


INSANE   DELUSION. 


475 


When  !i  Deffii.sc  to  Crime. 


jility,  or  be- 

be  sane, and 
t  of  sanity, 
the  question 

I  eitliersidc. 
ve  it,  and  to 
le  jury,  be- 

II  the  case.' 
ve  refer,  of 
)per  percep- 
y  shields  its 

the  defend- 
lown  is  aii- 
entertain  a 
struction  is 
leans  of  dis- 
'as  refused, 
the  hiw.  If 
;ion  for  tlie 
of  conflict- 

scd  by  the 
is  such  tlmt 
h  is  wliolly 
liicli  would 
r  such  act. 
ontroUablo 

Liction  first 
adjield  for 
birth  and 
f  Erskine. 
1  Auiericu, 
Roberts  v. 
Indeed, 


though  it  ha.s  by  some  courts  been  denied  recognition,  it  seems  to  us  only 
aiidtiier  metiiod  of  stating  that  tliere  can  be  no  crime  wliere  there  is  a 
ijiental  incapacity  to  distinguish  between  right  and  wrong ;  for  thougli 
delusions  as  to  particular  matters  frequently  exist  in  minds  which  are 
perfectly  rational  upon  all  other  subjects,  yet  if  tlie  delusion  be  so  fixed 
and  vivid  as  to  make  the  imaginary  seem  the  real,  there  must  be  upon 
that  subject  a  total  incapacity  to  distinguish  between  right  and  wrong, 
since  the  entire  relation  between  the  victim  of  the  delusion  and  its 
unconscious  subject  being  mentally  perverted,  there  can  be  no  proper 
standard  of  right  and  wrong  in  the  diseased  mind.  That  which  to  the 
refit  of  the  world  seems  right  is  to  him  the  most  flagrant  wrong,  and 
I'ice  versa.  If  to  his  deluded  imagination  his  best  friend,  or  tlie  wife  of 
his  bosom,  seems  a  relentless  foe,  bent  upon  his  destruction,  he  neces- 
sarily acts  upon  the  hallucination  which  possesses  him  ;  and  if  his  action  is 
such  as  would  be  justifiable  or  proper  if  the  reality  was  as  he  supposes 
it  to  be,  there  can  be  no  accountability,  l)ecause  there  has  been  no  con- 
scious crime. 

If  a  crazed  enthusiast  violates  the  law,  impelled  b\-  a  madness  v  hich 
makes  him  deem  it  the  inspired  act  of  God,  he  has  only  done  that  which 
his  diseased  and  deluded  imagination  taught  him  was  right ;  and  if  the 
act  would  be  proper  in  one  so  divinely  inspired,  and  was  the  direct  and 
necessary  consequence  of  the  dcdusion.  there  can  be  no  punishment, 
because,  however  rational  on  other  subjects,  he  was  on  that  subject 
incapable  of  having  a  criminal  intent. 

The  juries  must,  under  the  instructing  guidance  of  the  courts,  be  the 
judges  of  the  sincerity  and  firmness  of  tlie  belief,  and  of  whether  the 
act  was  in  truth  the  direct  and  necessai}'  result  of  the  insane  delusion. 
There  is  but  litttle  danger  that  the  sober  common  sense  of  mankind  will 
be  deceived  by  a  feigned  madness  or  will  fail  to  detect  the  craftiest 
iraposter,  who,  under  the  gui.se  of  insanity,  violates  the  criminal  law. 
The  danger  rather  is,  that  indignation  at  the  crime  and  incapacity  to 
appreciate  the  delusion  will  make  them  incredulous  of  its  existence. 

We  think  that  the  first  clause  of  the  instruction,  which  is  taken  sub- 
stantially from  the  opinion  of  Chief  Justice  Shaw  in  Commoniveallh  v. 
Rog  rs^^  announces  a  correct  principle  of  law. 

The  second  clause  declares  that  there  is  no  respor  sibilit}'  for  "  an  act 
committed  under  the  uncontrollable  impulse  resulting  from  mental 
disease."  If  clie  impulse  meant  is  the  direct  result  of  such  mental  dis- 
ease as  destroys  the  preception  of  right  and  wrong,  this  is  only  a  reaf- 


'  Sui)ra. 


476 


THE   BUUDEN   OF   PROOF   OF   INSANITY. 


Cunuiugham  v.  State. 


firmation  of  the  doctrine  announced  in  several  preceding  cliarges,  and 
it  derives  no  additional  strength  from  the  prefix  of  tlie  word  "  uncon- 
trollable." But  there  is  said  to  be  an  uncontrollable  impulse  springing 
from  a  mental  condition  quite  different  from  this,  a  state  of  the  mind 
which  perfectly  perceives  the  true  relations  of  the  party  and  recognizos 
all  the  obligations  thereby  imposed,  but  which,  i'  is  said,  is  unable  to 
control  the  will. 

This  character  of  insanity  is  variously  styled  moral  or  emotional  or 
impulsive  or  paroxysmal  insanity.  It  is  known  among  medical  writers 
as  lesion  of  the  will..  Its  peculiarity  is  said  to  be  that  while  the  mental 
perception  is  unimpaired  the  mind  is  powerless  to  control  the  will;  that 
while  its  unhappy  subject  knows  the  right  and  desires  to  pursue  it,  some 
mysterious  and  uncontrollable  impulse  compels  him  to  commit  the 
wrong.  This  kind  of  insanity',  if  insanity  it  can  be  called,  though  some- 
times recognized  by  respectable  courts,  and  still  oftener  perhaps  by 
juries  seeking  an  excuse  to  evade  the  stern  dictates  of  the  law,  is  proii- 
erly  rejected  by  the  authorities  generally.  The  possibility  of  the  ex- 
istence of  such  a  mental  condition  is  too  doubtful,  the  theory  is  too 
problematical  and  too  incapable  of  a  practical  solution  to  afford  a  safe 
basis  of  legal  adjudication.  It  may  serve  as  a  metaphysical  or  psycho- 
logical problem  to  interest  and  amuse  the  speculative  philosopher,  but 
it  must  be  discarded  by  the  jurist  and  the  law-giver  in  the  practical  af- 
fairs of  life.  To  it  may  well  be  applied  the  language  of  Judge  Curtis, 
who,  in  spealdng  of  this  and  similar  questions,  says:  "They  are  an 
important  as  well  as  a  deeply  interesting  stud}',  and  they  find  their  place 
in  that  science  which  ministers  to  diseases  of  the  mind.  *  *  *  But 
the  law  is  not  a  medical  nor  a  metaphysical  science.  Its  search  is  after 
those  practical  rules  which  may  be  administered  without  inhumanity  for 
the  security  of  civil  society  by  protecting  it  from  crime,  and  therefore 
it  inquires  not  into  the  peculiar  constitution  of  mind  of  the  accused,  or 
what  "v\  oakness  or  even  disorders  he  was  afflicted  with,  but  solely  whether 
he  loas  capable  of  having,  and  did  have,  a  criminal  intent.  If  he  had  it 
punishes  him,  if  not  it  holds  him  dispunishable. "i 

The  latter  clause  of  the  instruction  in  question  is  copied,  as  indeed 
the  whole  instruction  is,  from  the  syllabus  or  head-notes  of  Com- 
momvealth  v.  Rogers,^  but  it  fails  to  embody  the  qualifications  and  re- 
striction thrown  around  the  doctrine  in  the  opinion  itself. 

The  uncontrollable  impulse  which  the  learned  chief  justice  declares 
will  excuse  the  act  is  said  to  be  that  ' '  which  overwhelms  reason,  cou- 


1  U.  S.  I'.  McGlue,  1  Curt.  1. 


«  7  Mete.  500. 


WlilUIlT   V.  PEOrLE. 


477 


IJurdeii  of  Proof  on  Prosecution. 


larges,  and 
i  "  uncon- 
e  springing 
f  the  mind 
recognizes 
i  unable  to 

lotional  or 
cal  writers 
the  mental 
■vvill;  that 
•le  it,  some 
•nimit  the 
ugh  some- 
irhaps  by 
S  is  pi'op- 
f  the  ex- 
orj  is  too 
I'd  a  safe 
r  psycho- 
l>her,  but 
cticiil  af- 
e  Curtis, 
iy  are  an 
eir  place 
*    But 
ti  is  after 
anity  for 
;herefore 
used,  or 
'  whether 
e  had  it 

3  indeed 

f   Com- 

and  re- 

leclares 
m,  con- 


science and  judgment."  "  If  so,"  says  ho,  "then  the  act  was  not  the 
act  of  a  voluntary  agent,  but  the  involuntary  act  of  the  body  without 
the  concurrence  of  the  mind  directing  it,"  In  other  words,  it  is  the 
uncontrollable  act  of  a  mind  destituie  of  reason,  conscience  or  judgment 
as  to  the  particular  object,  however  sane  as  to  other  matters.  The  lat- 
'.er  clause  of  the  instruction,  therefore,  should  have  been  restricted  by 
words  conveying  the  idea  that  the  act  was  the  direct  result  of  an  uncon- 
trollable impulse  springing  from  mental  disease,  existing  to  so  high  a 
degree  that  for  the  time  it  overwhelmed  the  reason,  judgment  and  con- 
science. 

The  exceptions  taken  to  the  action  of  the  comt  in  its  rulings  on  the 
evidence  aie  without  me.it. 

For  the  errors  indicated  in  the  instructions  the  judgment  is  reversed 
and  a  new  trial  awarded. 


BURDEN  OF  PROOF  — TEST  OF  INSANITY. 

Wright  v.  People. 
in  the  Supreme  Court  of  Nebraska,  January  Term,  1876. 

[4  Neb.  407.] 

Hon.  George  B.  Lake,  Chief  Justice. 
"     Daniei,  Gantt,         ^ 
"      Samuel  Maxwell,  K"''^^*- 

1.  Insanity  —  Burden  of  Proof.  — Where,  in  a  criminal  case,  the  accused  relies  upon  in- 
sanity as  a  defence,  the  burden  of  proof  is  on  the  prosecution  to  show  sanity. 

2. Evidence  — Beasonable  Doubt.  — In  sustaining  sucli  a  defence,  where  there  Is 

testimony  to  rebut  the  legal  presuiiiiuion  that  the  accused  was  sane,  unices  the  jurv 
are  satisfied  beyond  a  reasonable  doubt  that  the  act  complained  of  was  not  produced 
by  mental  disear e,  they  must  acquit. 

S. Test  of  Insanity.  —  But  the  degree  of  mental  unsoundness,  in  order  to  exempt  a 

pe-:cr.  from  ijunishment,  must  be  such  as  to  create  uncontrollable  impulse  to  do  tlie  act 
c.iarged.  If  it  be  found  insufficient  to  deprive  the  accused  of  ability  to  distinguish 
rifc-ht  from  wrong,  he  should  be  held  responsible  for  the  consequences  of  his  acts. 

Ehror  from  the  Otoe  County  District  Court. 

This  was  a  conviction  upon  an  indictment  for  assault  with  intent  to 
commit  murder.  The  defence  was  insanity.  Exceptions  taken  to  re- 
fusal of  instructions  to  the  jury  requested  on  behalf  of  the  prisoner, 
and  to  the  charge  of  the  court.  Verdict  of  guilty.  Judgment  and 
sentence.     Cause  brought  up  by  writ  of  error. 


478 


THE   BURDEN    OF   PROOF   OF   INSANITY. 


Wright  V.  People. 


The  instructions  requested  were :  Fimt.  The  burden  of  proof  is  on 
the  prosecution  to  show  sanity.  Second.  If  the  jury  believe  that  tlie 
accused  was  insane  at  the  time  of  the  assault,  they  must  acquit.  The 
first  instruction  was  refused.  The  second  modified  and  given  as  fol- 
lows: "If  the  jury  believe  the  accused  insane  at  the  time  of  the 
assault,  and  that  such  insanity  produced  a  total  deprivation  of  under- 
standing, they  must  acquit."  The  court  further  instructed  the  jury,  in 
substance,  that  to  justify  a  conviction  they  must  find :  Fbst.  That  the 
assault  was  made  with  intent  to  murder  Carroll,  but  that  the  intent  to 
murder  may  be  inferred  from  the  acts  of  the  accused.  SeconO.  That 
sanity  is  presumed,  and  that  insanity  is  a  defence  to  be  proved  by  tlu; 
accused,  directly  and  clearly,  so  as  to  satisfy  the  juiy  that  the  <lei)riva- 
tion  of  und<!rstanding  was  total,  fixed  and  permanent,  or  if  adventi- 
tious, that  during  the  frenzy  tbere  was  a  total  deprivation  of 
understanding,  so  as  to  deprive  the  accused  of  the  use  of  reason  as  ap- 
plied to  the  act  controlling  his  will,  taking  away  freedom  of  action,  and 
rendering  him  incapable  of  distinguishing  right  from  wrong  at  the  time 
of  the  offence. 

Peck/iani  and  Watsoyi,  for  plaintiff  in  error. 

J.  E.  Webstei',  Attorney-General,  for  the  People. 

Lakk,  C.  J. 

There  are  but  two  errors  assigned  in  this  record.  The  first  is  tlic  re- 
fusal of  the  court  to  give  certain  instructions  to  the  jury  as  to  the  do 
fence  of  insanity  which  had  been  interposed,  and  of  which  there  was 
some  evidence.  The  first  instruction  recjuested  and  refused  was,  "  that 
the  burden  of  proof  is  on  the  prosecution  to  show  sanity." 

AVe  find  the  autliorities  on  this  subject  very  conflicting,  but  the  ques- 
tion being  an  open  one  in  this  State,  we  feel  at  liberty  to  adopt  that  rule 
which  to  our  mind  seems  not  only  to  be  founded  in  reason,  but  to  con- 
form to  those  humane  principles  which  underlie  our  system  of  criminal 
law. 

It  is  a  familiar  rule  of  the  common  law  that  to  constitute  a  crime 
there  must,  in  almost  all  cases,  be  first,  a  vicious  will,  and  secondly,  an 
unlawful  act  consequent  upon  such  vicious  will.  *  And  where  an  indi- 
vidual lacks  the  mental  capacity  to  distinguish  right  from  wrong,  in  refer- 
ence to  the  particular  act  complained  of,  the  law  will  not  hold  him  respon- 
sible.2  This  mental  incapacity  may  result  from  various  causes,  such  as 
non-age,  lunacy  or  idiocy,  and  whenever  interposed  as  a  defence,  the 
inquiry  is  necessarily   reduced  to  a  single  question  of   the  ability  of 


1  Broom  &  Iladley's  Com.  (Am.  etl.)  339. 
I  Flanagau  v.  I'eople,  62  N.  Y.  4C7;  11  Am. 


Rep.  731;   State  v.  Lawrence,  67  Me.  57<; 
Com.  V.  Ueatb,  11  Gray.  303. 


CONFLICT    1\   TlIK   ALTHOKITIES. 


479 


Burdeii  of  Proof  on  rrisoiicr. 


oof  is  on 
e  tliat  the 
iiit.     The 
311  as  fol- 
e   of  the 
)t  under- 
e  jury,  ill 
That  the 
intent  to 
ml.  That 
d  by  the 
dcpfiva- 
adventi- 
atiou    of 
on  as  op- 
tion, and 
the  time 


s  tlie  re- 
0  the  d(v 
lere  was 
s,  "that 

he  ques- 
thatrule 
J  to  con- 
criminal 

a  crime 
idly,  an 
an  indi- 
in  refer- 
irespoii- 

such  as 
nee, the 
)ility  of 

Me.  574; 


the  accused  to  distinguisli  between  right  and  wrong  at  the  time  of 
committing  the  act  complained  of.i  But  even  where  insanity  is  shown 
to  exist,  and  whether  it  is  general  or  partial,  the  rule  seems  to  be  sul,- 
stanlially  as  charged  by  the  court  below,  that  if  there  remain  a  deoree  of 
reason  sutlicient  to  discern  the  difference  between  moral  good  and 
vxd  at  the  time  the  offence  was  committed,  then  the  accused  is  respon- 
sible for  his  acts. 2  * 

We  now  come  to  the  vital  question  in  this  case,  the  point  of  conflict 
in  tiie  authorities ;  the  one  wherein  we  cannot  approve  of  the  rule  1-iid 
down  in  the  court  below,  which  was  that  "the  burden  of  provin-the 
defence  of  insanity  lies  upon  the  accused,  *  *  *  and  that  it  must 
be  proved  distinctly  ami  clearly  that  the  accused  was  incai,al,leof  dislin- 
guishing  right  from  wrong,"  elc.  This,  to  be  sure,  is  tlie  rule,  substan- 
tially, as  established  in  England  in  3IcNaghten's  Case;-^  and  which  li-is 
been  followed  by  many  of  the  courts  in  this  country.  By  this  rule  the  bur- 
den of  this  defence  is  shifted  from  the  prosecution  to  the  defendant 
which,  we  think,  ought  never  to  be  done. 

If  the  minds  of  tlie  jury  be  leftiu  reasonable  doubt  as  to  whether  or 
not  the  act  charged  as  criminal  was  the  product  of  mental  disease  we 
perceive  no  good  reason  why  the  accused  should  be  deprived  of  the  ben- 
efit of  that  doubt.  It  being  conceded  that  an  act  produced  by  insanity 
cannot  be  criminal,  it  must  necessarily  follow  that  whatever  uncertainty 
or  doubt  there  may  be  as  to  the  sanity  of  a  defendant,  must  exist  as  to 
liiB  guilt.  ' '  Indeed,  to  make  u  complete  crime  cognizable  to  human  laws 
there  must  be  both  a  will  and  an  cutr  »  We  hold  the  true  rule  to  be 
that,  whenever  there  is  testimony  teiulingto  rebut  the  legal  presumption 
of  insanity,  the  jury  should  be  instructed,  substantially,  that  unless 
thoy  are  satisfied  beyond  a  reasonable  doubt  that  the  act  complained  of 
was  not  produced  by  mental  disease,  the  accused  should  be  acquitted  on 
tlie  ground  of  insanity.  ^ 

We  are  of  opinion,  therefore,  that  this  first  instruction  offered  on 
behalf  of  the  defendant  should  have  been  given  ;  and  that  in  its  rejec- 
tion, as  well  as  in  giving  that  portion  of  the  charge  above  quoted,  there 
waa  manifest  eiTor  which  requires  a  reversal  of  tlie  judgment. 

As  to  the  second  instruction,  there  was  no  en  or  in  refusino-'to  give  it 
as  tendered,  nor  in  giving  it  as  modified  by  the  court.     As  be?ore  stated 
the  degree  of  mental  unsoundness,  in  order  to  exempt  a  person  from 


'  Freeman  r.  People,  4  Donio,  28. 
s  Ho|.|.s,-.  IVople,  31111.  385. 
=  10  CI.  Si  v.  21)0. 
♦  Broom  &  ll.  Com.  (Am.  e(l.)339. 


■''  State  V.  Jones,  50  N.  IF.  36!t;  m  A  ii.  Rep. 
242 ;  Chase  v.  People,  40  111.  \^■^■l  ■  I'eck  v. 
State,  19  lua.  170;  People  v.  Oiarbuit.  17 
Mich.  23. 


480 


TIIE   BURDEN   OF   PROOF   OF    INSANITY. 


State  V.  Bartlett. 


punishment,  must  be  such  as  to  create  an  uncontrollable  impulse  to  do 
the  act  charged.  But  if  it  be  found  insutlicient  to  deiu'ive  the  accused 
of  the  ability  to  distinguish  right  from  wrong,  he  should  be  held  respon- 
sible for  the  consequences  of  his  acts. 

The  judgment  of  the  court  below  is  reversed  and  a  new  trial  awarded. 


BURDEN  OF  PROOF  ON  PROSECUTION. 

State  v.  Bartlett. 

(43  N.  H.  224.) 

In  the  Supreme  Court  of  New  Hampshire,  December,  1861. 


Hon.  Samuel  D.  Bell,  Chief  Justice 
J.  E.  Sargent, 
Henry  A.  Bellows, 
Charles  Doe,  1-  Justices. 

George  W.  Nesmith, 
William  H.  Bartlett, 


<< 


Where  insanity  is  set  up  as  a  defence  to  an  indictment,  the  Jury  must  be  satiefled 
beyond  reasonable  doubc,  of  the  soundness  of  the  prisoner's  mind  and  his  capacity  to 
commit  the  crime,  upon  all  the  evidence  bnforo  them,  regardless  of  the  fact  whether  il 
be  adduced  by  the  prosecution,  or  by  the  defendant. 

Indictment  of  three  counts,  substantially  charging  that  the  respon- 
dent, on  the  20th  day  of  June,  18G1,  with  force  and  arms,  at  Upper 
Gilmanton,  did  make  an  assault  upon  one  Lucien  Dice}'',  and  with  a  guu 
charged  witli  powder  and  ball  did  shoot  at  and  wound  said  Dicey,  ff- 
loniouslj'',  wilfully,  and  of  his  malice  aforethought,  intending  him  to  kill 
and  murder. 

The  defence  of  the  prisoner,  in  part,  was,  that  at  the  time  of  the  sup- 
posed commission  of  the  offence  he  was  a  monomaniac  upon  the  sulijoct 
of  the  infidelity  of  his  wife,  imputing  an  improper  connection  between 
her  and  the  said  Dicey. 

Upon  this  part  of  the  defence,  the  counsel  for  the  prisoner  requested 
the  court  to  charge  the  jury : — 

1.  "That  if  upon  the  whole  evidence  they  are  of  the  opinion  that  it 
was  more  probable  that  the  prisoner  was  insane  so  as  not  to  be  respon- 
sible for  his  acts,  than  that  he  was  sane,  they  ought  to  find  him  not 
guilty  by  reason  of  insanity. 


ilse  to  do 
J  acciisod 
d  respon- 

awarded. 


STATE   V.  r.AllTLETT. 


4.^1 


96*1. 


)e  satic'fled 
capacity  to 
:  whettaur  il 


respon- 
it  Upi)cr 
ith  a  gun 
|icey,  fc- 
to  kill 

jthesup- 

SUl)jC'Ct 

Ibetween 

[quested 

that  it 
|respon- 
lim  not 


lustniftioiis  Refused  and  (iivtii. 


2.  "  That  though  if  the  jury  find  the  prisoner  committed  tiie  offence, 
tlie  burden  of  the  proof  is  on  him  to  remove  tlie  natural  presumption  of 
sanity,  yet  that  tlie  jury  must  be  sali.sfii'd  beyond  a  reasonable  doubt 
that  he  was  a  sane  man  and  responsible  for  his  acts,  or  it  is  their  duty 
to  find  him  not  guilty,  by  reason  of  insanity." 

Among  other  things,  the  court  did  say  to  the  jury:  "  That  a  man  is 
not  to  be  excused  from  responsibility,  if  he  has  capacity  and  reason 
sutBcient  to  enable  him  to  distiuguisli  between  right  and  wrong,  as  to 
the  particular  act  he  is  then  doing.  He  must  have  a  knowledge  or  con- 
sciousness tliat  the  act  he  is  doing  is  wrong  and  criminal,  and  will  sub- 
JL'ft  him  to  punishment.  In  order  to  be  responsible,  he  must  have 
sufficient  power  of  memory  to  recollect  the  relation  in  which  he  stands 
to  others,  and  in  which  others  stand  to  him  ;  that  the  act  he  is  doing  is 
contrary  to  the  dictates  of  justice  and  right,  injurious  to  others,  and  a 
violation  of  the  dictates  of  duty. 

"On  the  contrary,  although  the  person  may  be  laboring  under  partial 
insanity,  if  he  still  understands  the  nature  and  character  of  his  act  and 
its  consequences,  if  he  has  a  knowledge  that  it  is  wrong  and  criminal, 
and  a  mental  power  sufTicient  to  apply  that  knowledge  to  his  own  ease, 
and  to  know,  if  he  does  the  act,  he  will  do  wrong  and  receive  punish- 
ment, such  partial  insanity  is  not  supposed  to  exempt  him  from  respon- 
sibility for  criminal  acts.  If  it  be  proved  to  the  satisfaction  of  the  jurj-, 
that  the  mind  of  the  accused  was  in  a  diseased  and  unsound  slate,  the 
question  will  be,  whether  the  disease  existed  to  so  high  a  degne  that, 
for  the  time  being,  it  overwhelmed  the  reason,  conscience  and  judgment, 
and  whether  the  prisoner,  in  committing  the  act,  acted  from  an  irre- 
sistible and  uncontrollable  impulse. 

"If  so,  the  act  was  not  the  act  of  a  voluntary  agent,  but  the  involun- 
tary act  of  the  body,  without  the  concurrence  of  the  mind  directing  it. 
Every  man  is  to  be  presumed  to  be  sane,  and  to  possess  a  sufficient  de- 
gree of  reason  to  be  responsible  for  his  crimes,  until  the  contrary  be 
proved  to  the  satisfaction  of  the  jury,  and  to  establish  a  defence  on  the 
ground  of  insanity,  it  must  be  clearly  proved  that,  at  the  time  of  com- 
mitting the  act,  the  party  accused  was  lal)oring  under  such  a  defect  of 
reason  from  disease  of  mind  as  not  to  know  the  nature  and  quality  of 
the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did  not  know  what 
was  wrong ;  and  that  he  was  not  therefore  a  moral  agent,  responsible  in 
a  legal  sense  for  his  acts,  and  a  proper  subject  for  punishment.  One 
kind  of  insanity  known  to  our  law  was  "monomania,"  where  the  mifid, 
in  a  diseased  state,  broods  OA'er  one  idea,  and  cannot  be  reasoned  out 
of  it ;  and  in  this  case,  in  order  to  find  the  act  of  the  prisoner,  if  com- 
31 


482 


THE   BURDEN   OF   PROOF   OF   INSANITY. 


State  V.  Bartlott. 


mittcd  by  him,  to  be  not  criminal,  the  jury  must  be  clearly  satisfied  it 
was  the  result  of  the  disease,  and  not  of  a  mind  capable  of  choosing ; 
that  it  was  the  result  of  uncontrollable  impulse,  and  not  of  a  person 
acted  upon  by  motives,  and  governed  by  the  will. 

"  On  the  other  hand,  it  devolved  upon  the  State  to  siiow  that  the  pris- 
oner committed  the  act  as  charged,  with  the  malicious  intent  to  kill ; 
and  that  the  Jury  must  be  satisfied  of  the  existence  of  such  malice,  at 
the  time,  beyond  a  reasonable  doubt,  in  the  prisoner,  and  that  he  had 
sufficient  degree  of  mental  capacity  or  sanity,  as  to  render  him  a  tit 
subject  of  punishment  upon  the  principles  before  suggested." 

The  court  declining  to  charge  otherwise  than  as  before  stated,  the 
counsel  for  the  prisoner  excepted.  The  jury  having  rendered  their  vei- 
dict  against  the  prisoner,  he  moved  that  the  verdict  be  set  aside,  and 
for  a  new  trial. 

E.  A.  Hibbard,  for  the  respondent. 

Blair ^  for  the  State. 

Bellows,  J.  — The  defendant's  counsel  requested  the  court  to  charge 
the  jury  that  if  it  was  more  probable  that  the  prisoner  was  insane  than 
otherwise,  it  was  their  duty  to  find  him  not  guilty  by  reason  of  insanity ; 
and,  also,  that  although  the  burden  was  on  the  prisoner  to  reinovo 
the  natural  presumption  of  sanity,  the  jury  must  be  satisfied,  beyond 
a  reasonable  doubt,  that  he  was  a  sane  man,  or  else  acquit  him. 

But  the  court  declined  to  charge  the  jury  according  to  either  request, 
unless  it  be  found  in  the  direction  "  that  the  jury  must  be  satisfied  of 
the  existence  of  such  malice  at  the  time  bej'ond  a  reasonable  doubt,  in 
the  prisoner,  and  that  he  had  a  sufl3cient  degree  of  mental  capacity  or 
sanity  to  render  him  a  fit  subject  of  punishment,  upon  the  principles 
before  suggested." 

If  the  term  "  beyond  a  reasonable  doubt"  could  be  applied  to  the 
finding  of  the  jury  in  respect  to  the  sanity  of  the  prisoner,  it  must  be 
regarded  as  a  full  compliance  with  both  branches  of  the  request; 
because  if  his  sanity  was  established  beyond  all  reasonable  doubt,  there 
could  be  no  ground  to  claim  that  he  was  probably  insane.  But  we 
think  the  term  "beyond  a  reasonable  doubt "  cannot  be  so  applied,  oral 
least  not  necessarily ;  and  this  is  indicted  by  other  parts  of  the  charge, 
in  which  it  is  stated,  in  substance,  that  to  ovijrcome  the  presumption  of 
sanity,  it  must  be  clearly  proved  that  the  prisoner  was  laboring  under  a 
disease  of  mind  as  to  render  him  unable  to  discriminate  between  riglit 
and  wrong;  and  again,  that  to  find  the  act  not  criminal,  they  must  lie 
clearly  satisfied  tliatit  was  the  I'cstdt  of  the  disiease,  and  not  of  a  niiiul 
capable  of  choosing.     It  must  be  taken,   Ihoii,  that  the  judge  declined 


BURDEN    OF   PROOF   ON   PROSECUTION. 


481) 


Arguments  In  Support  of  this  Rule 


itisfied  it 
hoosinff ; 
a  person 

,  the  pris- 
it  to  kill ; 
nalice,  nt 
,t  he  hail 
him  a  Ut 

bated,  the 
their  vci  - 
iside,  and 


to  charge 
isane  than 

insanity ; 
o  remove 

,  beyond 

sr  request, 
itisfied  of 
doubt,  in 
ipacity  or 
Iprinciplcs 

led  to  the 

must  be 

request ; 

ibt,  there 

But  wo 

|lied,  or  at 

charge, 

iption  of 

under  a 

en  right 

must  be 

If  a  mind 
declined 


to  charge  the  jury  that  it  would  be  sufficient  if  the  prisoner's  evidence 
rendered  it  more  probable  that  he  was  insane  than  otherwise ;  or  that 
they  must  be  satisfied  beyond  a  reasonable  doubt  that  he  was  sane,  and 
responsible  for  his  acts.  It  must  be  taken,  also,  that  evidence  had  been 
adduced  tending  to  prove  the  prisoner's  insanity  ;  otherwise  there  was 
no  occasion  to  give  any  instructions  upon  the  subject. 
Upon  this  state  of  the  case,  two  questions  arise :  — 

1.  Is  it  enough  that  the  proof  should  render  the  insanity  more  prob- 
able than  otherwise  ? 

2.  Ought  the  prisoner  to  be  found  guilty,  when,  upon  the  whole  evi- 
dence, there  is  a  reasonable  doubt  of  his  sanity? 

Upon  a  careful  examination  of  the  questions,  both  upon  principle  and 
authority,  we  are  of  the  opinion  that  the  jury  ought  not  to  return  a  ver- 
dict of  guilty,  so  long  as  a  reasonable  doubt  rests  in  their  minds  of  the 
prisoner's  capacity  to  commit  the  offence  charged,  and  this,  of  course, 
is  an  answer  to  both  questions.  Nor  do  we  think  it  at  all  material 
whether  the  proof  of  insanity  comes  from  the  Government  or  the  accused, 
or  part  from  each ;  but,  however  adduced,  it  is  incumbent  upon  the 
l)rosecutor  to  satisfy  the  jury  beyond  a  reasonable  doubt  of  the  exis- 
tence of  all  the  elements,  including  the  necessar}'  soundness  of  mind, 
that  constitute  the  offence.  "NVe  arc  aware  that  there  is  conflict  in  the 
adjudged  cases  upon  this  subject,  and  that  highly  respectable  autliori- 
ties  have  maintained  that  when  insanit}'  is  Sfct  up  as  a  defence,  the  burden 
of  proof  is  thrown  upon  the  respondent,  by  force  of  the  natural  pre- 
sumption of  sanity,  and  that  he  must  establish  his  defence  by  a  pre- 
ponderating weight  of  evidence ;  and  that  some  cases  have  even  gone 
so  far  as  to  hold  that  it  must  be  sufficient  to  remove  all  reasonable  doubt 
of  the  insanity,  as  in  the  case  of  State  v.  Spencer,^  but  we  are  unable  to 
assent  to  either  view,  for  reasons  which  we  shall  proceed  to  state. 

The  rule  in  criminal  cases  requiring  the  prosecutor  to  establish  the 
guilt  of  the  accused  beyond  a  reasonable  doubt,  has  its  origin  in  the 
humane  maxim,  that  it  is  better  that  many  guilty  persons  escape  than 
that  one  innocent  person  should  suffer.  This  maxim,  obviously,  is  not 
founded  upon  any  technical  rule  or  system  of  pleading,  but  is  bavsed 
upon  the  broad  principles  of  justice,  which  forbid  the  infliction  of  pun- 
ishment until  the  commission  of  the  crime  is  to  a  reasonable  certainty 
established. 

It  has  received  the  sanction  of  the  most  enlightened  jurists  in  all 
civilized  communities,  and  in  all  ages ;  and  with  the  increasing  regard 

>  21  N.  J.  (L.)  196. 


4«4 


THE    DUKDEX    OI-    rUOOF    OF    INSAXITY. 


State  V.  Bartk'tt. 


for  human  life  and  individual  securitj',  it  is  quite  apparent  Ibut  tlie 
energy  of  tlie  rule  is  in  no  dcgri-e  impaired.  Wiien  tlio  ovitlence  is  all 
bcf(n'c  the  jiir}',  they  are  to  weigh  it,  witliout  rtgaril  to  the  side  from 
which  it  comes,  and  determine  whether  or  not  the  guilt  of  the  prisoner  has 
been  established  beyond  a  reasonable  doubt.  To  hold  that  the  quantity 
and  weight  of  the  evidence  is  in  aiiv  degree  affected  bv  the  fact  that  the 
prosecutor  has  been  able  to  make  a  case  without  introducing  any  matter 
in  excuse  or  justification,  is  clearly  contrary  to  the  spirit  of  the  rule, 
and  is  giving  to  mere  form  an  effect  Avhieh,  in  many  cases,  must  be  con- 
temjtlated  with  great  pain  ;  inasmuch  as  juries  miglit  feel  bound  to  llml 
the  prisoner  guilt}'  of  a  capital  ci'ime,  when,  in  thiir  consciences,  tliey 
had  serious  doubts  of  tlic  existence  of  malice  or  of  mental  cnpncily 
sullieient  to  charge  the  piisoner.  Such  a  doctrine  must  inevitably  lead 
to  a  constant  struggle  on  the  part  of  the  prosecutor  to  i)rove  his  c:ise 
without  introducing  anv  evidence  of  tht)se  facts  or  circumstances  uuon 
which  the  respondent  is  luiderstood  to  rely.  In  a  large  niunher  oi' 
cases,  with  skilful  management,  he  might  succeed,  and  thus  deprive  the 
accused  of  that  protection  wliich  the  rule,  independent  of  all  techni- 
cality or  matters  of  form,  was  designed  to  afford. 

The  conllict  which  exists  has  probably  arisen,  in  a  great  degree,  from 
an  attempt  to  apjily  to  criminal  causes  the  rules  which  govern  the  trial 
of  issues  in  civil  causes.  In  the  latter,  wliero  the  defendant  sets  i\\< 
matter  in  excuse  or  avoidance,  he  must  establish  the  defence  by  a  pre- 
l)onderance  of  proof;  and  by  analogy  it  has  sometimes  been  held,  ih 
criminal  cases,  tiiat  matters  of  defence  arising  from  accident,  necessity, 
or  infirmity,  must  be  estal»lished  by  alike  preponderance  of  proof.  In 
some  cases  it  has  been  carried  so  far  as  to  require  the  same  quan- 
tity of  evidence  to  pi-ove  such  matters  of  defence  as  to  prove  the 
commission  of  the  crime,  namely,  enough  to  remove  all  reasonable 
doubt.  But  we  think  there  are  marked  distinctions  between  the  two 
classes  of  liials,  and  that  the  rules  as  to  the  weight  of  evidence  or  bur- 
then of  proof  in  civil  cases,  are  not  safe  guides  in  criminal  causes.  In 
civil  causes  the  burthen  of  proof  is,  in  general,  upon  the  party  who 
maintains  the  affirmative ;  and,  when  thrown  upon  the  defendant  it  is 
because  he  sets  up  by  his  plea,  matters  which  avoid  the  effect  of  the 
plaintiff's  allegations,  but  do  not  deny  them.  It  is,  therefore,  right 
that  the  burthen  of  proof  should  be  upon  him  to  establish  the  truth  of 
such  matters  in  avoidance  by  a  preponderance  of  evidence,  especially 
as  nothing  more  is  required  than  to  render  tlie  truth  of  such  matters 
more  probable  than  otherwise.     In  criminal  causes,  the  trial  is  usually 

1  issue  all  the  alles:at:ous  in  t'le  indictment 


upon  a  pk 


put 


IULE><    IN    CIVIL    CA8E.S    NUT    ArPLICAHLE. 


48.") 


All  Kluiiiciits  of  II  C'rimc  Must  be  Trovt'd. 


and,  ui)oii  cvory  sound  principle  of  pleading  and  evidence,  the  burthen 
is  upon  the  prosecutor  to  sustain  them  by  sat! -factory  proofs.  A  sys- 
tem of  rules,  therefore,  by  which  the  burtlien  is  shifted  upon  the  ac- 
cused of  showing  any  of  the  substantial  allegations  in  the  indictment  to 
be  untrue,  or,  in  other  words,  to  prove  a  negative,  is  purely  artificial 
and  formal,  and  utterly  at  war  with  the  humane  principle  whicli,  in 
favoreni  citr.e,  requires  the  guilt  of  the  prisoner  to  be  established  l)eyond 
reasonable  doubt.  Not  only  so,  but,  fairly  considered,  such  a  system 
dorives  no  countenance  from  the  rules  which  govern  the  trials  of  civil 
causes,  inasmuch  as  in  res[)ect  to  all  the  allegations  in  the  declaration, 
provided  they  arc  put  in  issue,  the  burthen  of  proof,  in  general,  rests 
witli  the  plaintiff. 

The  indictment  in  this  case  is  for  an  assault  with  intent  to  commit 
murder;  and,  by  the  well  settled  definition  of  tlie  offence,  murder 
is  where  a  person  of  sound  memory  and  discretion  unlawfully  kills  any 
reasonable  creature  in  being  under  the  peace  of  the  Stiite,  with  malice 
aforesaid,  either  express  or  implied.  To  justify  a  conviction,  all  the 
elements  of  the  crime,  as  here  defined,  must  be  shown  to  exist,  and  to 
a  moral  certainty,  including  the  facts  of  a  sound  memory,  an  unlawful 
killing,  and  malice.  As  to  the  first,  the  natural  presumption  of  sanity 
\s prima  facie  proof  of  a  sound  memory,  and  that  must  stand  unless 
there  is  other  evidence  tending  to  prove  the  contrary  ;  and  then,  whether 
it  come  from  the  one  side  or  the  other,  in  weigiiing  it,  the  defendant  is 
entitled  to  the  benefit  of  all  reasonable  doubt,  just  the  same  as  upon  the 
point  of  an  unlawful  killing  or  malice.  Indeed,  the  want  of  sound 
memory  repels  the  proof  of  malice,  in  the  same  way  as  proof  that  the 
killing  was  accidental,  in  self-defence,  or  in  heat  of  blood ;  and  there 
can  be  no  solid  distinction  founded  upon  the  fact  that  the  law  presumed 
existence  of  a  sound  memory.  So  the  law  infers  malice  from  the 
killing  when  that  is  shown,  and  nothing  else  ;  but  in  both  cases  the  in- 
ference is  one  of  fact,  and  it  is  for  the  jury  to  say  whether,  on  all  the 
evidence  before  them,  the  malice  or  the  insanity  is  proved  or  not.  In- 
deed, we  regard  these  inferences  of  fact  as  not  designed  to  interfere  ia 
any  way  with  the  obligation  of  the  prosecutor  to  remove  all  reasonable 
doubt  of  guilt ;  but  are  applied  as  the  suggestions  of  experience,  and 
v/ith  a  view  to  the  convenience  and  expedition  of  trials,  leaving  the  evi- 
dence, when  adduced,  to  be  weighed  without  regard  to  the  fact  whether 
it  come  from  one  side  or  the  otljer. 

Our  opinion,  then,  is  that  the  inference  which  the  law  makes  of 
sanity,  malice,  and  the  like,  is  to  be  regarded  as  merely  a  matter  of 
evidence  and  standing  upon  the  same  ground  as  the  testimony  of  a 


480 


THE    lUUDKX    OF    PIIOOK    <)l"    INSANITY. 


Sluto  V.  Uartlett. 


witness ; '  and  in  this  respect  is  lii\e  the  presumption  of  innocence. - 
Nor  does  it  shift  tlie  burthen  of  proof  in  tiie  sense  of  clmnging  the  rule 
ns  to  tlie  (quantity  of  evidence  ;  but  is  merely  jn'hna  farie  proof  of  the 
sanity,  or  malice,  upon  which,  other  tilings  being  sliown,  the  Jury  may 
find  u  verdict  of  guilty.  If  further  evidence  is  offered  upon  the  point, 
b}' either  party,  tending  to  repel  the  presumption,  the  whole  must  be 
weighed  by  the  jury,  who  aretodcterminewhether  thegniltof  the  prisoner 
is  established  beyond  a  reasonable  doubt.  Tlie  criminal  intent  must  be 
proved  as  much  as  the  overt  act,  and  without  a  sound  mind  sudi  intent 
could  not  exist;  and  the  burthen  of  the  proof  must  always  remain  with 
the  prosecutor  to  prove  both  the  act  and  the  criminal  intent. 

In  the  English  courts,  the  direct  question  does  not  appear  to  have 
oeen  discussed,  though  it  is  laid  down  by  the  elementary  writers  that 
when  the  defence  is  insanity,  tlio  l)urtlien  of  proving  it  is  upon  tlie 
prisoner.^  In  Foster's  Crown  Law,"*  it  is  said :  "  In  ever}'  charge  of  mur- 
der, the  fact  of  killing  being  first  proved,  all  the  circumstances  of  acci- 
dent, necessity,  or  infirmity  are  to  be  satisfactorily  proved  by  the 
prisoner,  unless  they  arise  out  of  the  evidence  produced  against  him  ; 
for  the  law  presumeth  the  fact  to  have  been  founded  in  malice,  until  the 
contrary  appeareth  ;  and  very  right  it  is  that  the  law  should  so  presume. 
The  defendant,  in  this  instance,  standeth  just  upon  the  same  ground 
that  every  other  defendant  doth  ;  the  matter  tending  to  justif}',  excuse, 
or  alleviate,  must  appear  in  evidence  before  he  can  avail  himself  of 
them."  So  it  is  laid  down  in  1  East  on  Criminal  Law,^  and  Hawkins' 
Pleas. "^  On  this  point  Ornhys  Case''  is  relied  upon  as  a  leading  case; 
but  it  will  be  observed  that  the  question  of  the  quantity  of  the  evidence 
was  not  at  all  considered,  and  its  weight,  as  an  authority,  is  greatly  dimin- 
ished by  the  fact  that  it  was  there  held  that  whether  there  was  malice  or 
not,  was  a  question  of  law  ;  and  so,  also  whether  the  act  was  deliberate  or 
in  the  heat  of  passion.  In  the  opinion  of  the  judges,  in  answer  t>  nnes- 
tions  propounded  by  the  House  of  Lords, ^  Tind^m.,  .  J.,  says: 
"  Every  man  is  presumed  to  be  sane  and  responsib'  .s  orimes  n'tjl 

the  contrary  is  shown  to  the  satisfaction  of  the  j       ,  and  that  tt     •.- 


•  Greenl.  Ev.,  sects.  ;}3,  34. 

2  See  Sutton  V.  Sadler,  1  Eng.  C.  L.  87. 

'  Rose.  Ev.  (15th  Am.  ed.)  1944;  Russ.  on 
Or.  10,  citing  Bellingham's  Case,  1  Colllnson 
o:i  Lunacy,  636,  and  Hose.  Ev.  946,  and  note 
to  Rex  V.  Offord,  R  C.  &  P.  168,  where  the 
judge  told  the  jury  that  to  support  such  de- 
lence,  it  ought  to  be  proved,  beyond  rea- 


sonable doubt,  that  the  i  jpondent  was 
insane. 

*  p.  255. 

'  p.  224,  230. 

8  Ch.  31,  sect.  32;  4  BL  Com.  201. 

'  Reported  2  Str.  70(5,  and,  also,  in  Ld. 
Raym.  1>*I5,  and  decided  in  1727. 

8  Reported  in  note  to  Reg.  v.  Higginson, 
I  C.  &  K.  130. 


UUKDEN  OF   PllOOF  OX    I'UISOXKIt. 


487 


Of  FuctsParticiiliirlv  Wlthlu  Ills  KiiowU'iliri' 


tablish  II  (lofonce  on  the  ijromul  of  insanity,  it  mnsf  1h>  clearly  proved 
tliat,  at  the  time  of  committiiig  the  net,  tlio  piuly  accused  was  laboriiij; 
under  such  a  defect  of  reason,  from  disease  of  mind,  as  not  to  know 
the  nature  and  quality  of  the  act  he  was  doing,  or  if  he  did  know  it, 
that  ho  did  not  know  it  was  wrong." 

Another  class  of  cases  in  the  English  courts,  are  referred  to  in  Whar- 
ton's Criminal  Law,*  as  cases  wiiere  the  facts  of  the  prosecution  are 
conceded,  but  the  defendant  sets  up  some  matter  in  excuse  or  avoid- 
ance ;  in  which  event  it  is  said  that  the  presumption  of  innocence  no 
longer  works  for  the  defence,  and  such  matter  of  excuse  or  avoidance 
should  be  proved  by  the  defendant  by  a  preponderance  of  testimony. 
The  cases  cited  in  support  of  this  doctrine  are  prosecutions  for  selling 
liquor  without  license,  shooting  game  without  the  necessary  qualifica- 
tions, practising  medicine  without  a  certificate,  and  the  like.  Some  of 
these  cases  were  civil  suits,  brought  for  the  penalty,  and  the  substance 
of  the  doctrine  lield  in  them  all,  was,  that  the  affirmative  of  the  facts 
l)eing  with  the  defendant,  and  matter  being  peculiarly  within  his  knowl- 
edge, the  burthen  of  proof  was  upon  him.  But  the  question  before  the 
court  in  this  case  was  not  considered,  and  it  was  nowhere  announced 
tliat  in  case  evidence  was  adduced  by  the  defendant,  tending  to  prove 
such  fact,  the  jury  must  require  that  it  should  be  made  to  preponderate 
in  his  favor. 

It  will  be  perceived,  then,  that  according  to  the  general  statement  of 
the  English  doctrine,  which  is  fairly  expressed  in  the  extract  from  Fos- 
ter's Crown  Law,  which  we  have  quoted,  the  obligation  of  proving  any 
circumstances  of  accident,  necessity,  or  infirmity,  which  may  be  set  up 
as  a  defence  to  a  charge  of  murder  or  other  crime,  is  thrown  ui)on  the 
prisoner ;  unless  such  proof  arises  out  of  the  evidence  offered  by  the 
prosecution.  It  is  said,  indeed,  that  such  circumstances  must  be  satis- 
factorily proved ;  but  it  is  not  slated  by  what  quantity  of  evidence, 
whether  such  as  to  preponderate  in  favor  of  the  prisoner,  or  whether  he 
is  to  be  entitled  to  the  benefit  of  reasonable  doubts,  as  in  other  cases. 
When  we  consider,  however,  that  the  passage  clearly  applies  to  every- 
thing which  rebuts  malice,  whether  by  showing  that  the  act  was  justifia- 
ble, was  done  in  necessary  self-defence,  or  that  the  prisoner  was  not 
capable  of  committing  the  crime  by  reason  of  insanity,  it  may  well  be 
urged  that  nothing  more  was  intended  than  this.  If  the  prosecutor  has 
proved  the  commission  of  the  offence  without  disclosing  any  circum- 
stances of  justification,  necessity,  or  infirmity,  or  other  matter  of  de- 


pp.  201,  2G5. 


4S8 


THE    liUKDEX    OF   PROOF    OF    INSANITY. 


State  V.  Burtlett. 


fence  relictl  upon  by  the  accused,  then  tlie  burthen  will  be  upon  the 
latter,  to  olTer  so  much  proof  of  the  matters  constitutint^  his  defence,  as 
will,  upon  the  rules  of  law,  entitle  him  to  a  verdict  of  not  guilty.  Not 
that  his  proof  shall  be  suflicient  to  establish  such  facts  by  a  prci)onder- 
ance  of  evidence,  but  sutficient  to  entitle  him  to  an  acouittal.  If  it  wer*^ 
net  so,  what  shall  be  the  rule  when  soma  evidence  of  the  matter  in  excuse 
or  justificaticn  unavoidably  creeps  in  with  the  government  proof,  and 
still  the  accused  offers  more  to  the  same  facts?  To  hold  that  the  rule 
upon  Avhich  the  life  or  death  of  a  human  being  may  depend,  is  to  be 
affected  by  a  circumstance  so  trivial  before  any  enli<rlitened  conscience, 
would  be  giving  to  mere  foim  a  weight  wholly  inconsistent  with  the 
humane  spirit  of  our  criminal  laws.  In  the  opinion  of  Tindali.,  C.  J., 
1)efore  cited,  which  was  given  without  argument,  and  without  the  atten- 
tion of  the  court  being  distinctly  drawn  to  this  point,  it  is  by  no  means 
clear  that  any  different  rule,  as  to  the  quantity  of  evidence,  was  intended 
to  be  announced,  although  there  may  be  some  expression  tending  that 
way. 

In  Commomvealth  v.  York,^  it  was  decided  that  the  malice  was  to  be 
uifcrred  from  a  wilful  and  voluntary  killing,  unless  it  was  proved  by  a 
preponderance  of  evidence,  by  the  accused,  that  the  act  was  done  in  an 
affray  in  the  heat  of  bhxjd.  The  opinion  was  pronounced  by  Siiaw,  C. 
J.,  after  a  most  able  and  thorough  examination  of  the  authorities,  and 
it  is  apparent  that  he  gave  great  weight  to  the  statement  of  Sir  Michael 
Foster,  which  we  have  cited.  The  court,  however,  were  not  unanimous, 
Wilde,  J.,  having  delivered  an  able  dissenting  opinion.  I:,  the  previous 
case  of  Commontveolth  v.  lingers,-  it  was  held  that  the  oidinary  pre- 
sumption of  sanity  must  stand,  until  rebutted  either  by  evidence  offered 
by  Government  or  by  the  pris',;i:;r;  and  in  either  case,  the  evidence  must 
be  sufficient  to  establish  the  fact  of  insanity.  Subsequently,  in  Com- 
monicealth  v.  Ilaickins,^  the  doctrine  of  Commomvealth  v.  York  was  re- 
stricted by  SifAW,  C.  J.,  to  cases  where  killing  was  proved,  and  nothing 
else ;  but  it  was  held  that  where  the  circumstances  were  fully  shown, 
tlie  burden  was  upon  the  State  to  show  the  malice  be3'-ond  a  reasonable 
doubt.  The  eases  of  Commomcealth  v.  Rogers  and  Commonwealth  v. 
York,  put  upon  the  same  ground  the  rebutting  of  malice,  by  showing 
that  the  act  was  done  during  an  affray,  in  the  heat  of  passion,  and  that 
by  reason  of  insanity,  the  accused  was  incapable  of  malice.  And  it  is 
quite  obvious,  we  think,  that  in  principle  there  is  no  difference ;  in  both 
cases  the  same  element  of  the  crime  is  proved  not  to  exist,  and  the  in- 


(liJ 
thJ 


1  0  Mete.  93. 

2  7  Mule.  5(M. 


J  3  Gray,  463. 


BURDEN    OF   PROOF    IX    CHI.VIIXAL    CASES. 


489 


The  Authorities  Reviewed. 


(lic'tment  therefore  is  not  sustained,  and  to  that  effect  is  the  doctrine  of 
the  passage  before  cited,  from  Foster's  Crown  Law. 

The  general  doctrine  of  Commonwealth  v.  York  has  been  followed  in 
several  of  the  American  courts,  giving  it  as  authority.  *     The  doctrine  of 
Cummomoealth  v.  York  has  since  been  greatly  shaken,  if  not  overthrown, 
ill  Commomveallh  v.  3I<:Kee,^  in  an  able  opinion  of  Bi(;eluw,  J.,  ft'hich 
decided  that  where  evidence  of  the  facts  constituting  a  .iustification 
ciuue  from  both  sides,  the  burden  of  proof  remained  on  the  Cunernment 
tlu'oughout,  to  remove  all  reasonable  doubt  of  guilt ;  and  the  reasons 
assigned  apply  with  equal  force,  when  such  evidence  all  comes  from  the 
|irlsoncr.     It  is  true,  that  the  learned  judge  says:   "•  There  may  Ijc  cases 
where  a  defendant  relies  upon  some  distinct,  substn.u-ial  giouiid  of  de- 
feiico,  not  necessarily  connected  with  the  transaction  on  v.hieh  the  in- 
dictment is  founded,  in  which  the  burden  of  proof  is  shifted  upon  the 
defendant;"  and  he  instances  the  case  of  insanity,  l)ut  expresses  no 
opinion  upon  it.    It  was,  however,  held  in  the  subsequent  case^  that  the 
Inirden  of  proof  resting  on  the  Government,  is  sustained  so  far  as  the 
defendant's  mental  capacity  is  concerned,  by  the  presumption  of  sanity, 
iiutii  rebutted  and  overcome  by  a  preponderance  of  the  whole  evidence  ; 
thus  giving  to  the  presumption  of  sanity  an  effect  that  is  not  given  bj'^ 
the  doctrine  of  Commonivealth  v.  McKee,  to  the  presumption  of  malice  ; 
which,  nevertheless,  as  we  think,  stands  upon  the  same  ground.     Ac- 
cording to  these  decisions,  then,  the  rule  in  Massachusetts,  as  to  the 
(luautity  of  evidence  to  establish  a  defence,  arising  from  accident  or 
necessity,  now  corresponds  with  the  views  we  entertain  ;  and  with  our 
construction  of  the  passage  cited  from  Foster's  Crown  Law;  and  the 
principle  of  the  rule  includes,  also,  the  defence  arising  from  insanity,  or 
inlirmity. 

In  accordance  with  our  views  is  the  doctrine  of  People  v.  McCann,'^ 
where  the  subject  is  most  ably  discussed. ^ 

Such,  also,  we  think,  has  been  the  course  of  trials  in  this  State.  It 
was  clearly  so  on  the  trial  of  Corey^  in  Cheshire  county,  for  murder,  in 
1830,  October  term,  before  the  Superior  Court  of  Judicature,  Riciiaud- 
soN,  C.  J.,  presiding,  where  the  defence  set  up  was  insanity.  The  court 
charged  the  jury  that  the  State  had  no  claim  to  their  verdict  until  they 
were  satisfied,  beyond  all  reasonable  doubt,  that  the  prisoner  was  guilty  ; 


People  r.  Milgate,  .5  Cal.  127 ;  Graham  v. 
rommonwealth,  16  15.  Mon.  587;  S^ate  v. 
stark,  1  Strob.  479;  Stater.  Spencer,  21  N.  J. 
(L.)  196. 

-1  Gray,  fil. 

^  Commonwealth  v.  Eddy,  7  Gray,  583. 


<  16  N.  Y.  58. 

6  Ogletieo  r.  State,  28  Ala.  692;  United 
States  f.  McGlue,  1  Curt.  1, 7  Lut  Rep.  (n.  s.) 
430,  by  Sprague,  J. ;  1  Am.  lead.  Cr.  Cases 
347,  and  note,  and  cases  cited. 


490 


THE   BURDEN    OF   PIIOOF   OF   INiSAMTY 


People  V.  McCann. 


and  in  that  case  the  only  question  was  whether  he  was  insane,  the  guilt 
otherwise  being  clear. 

So  was  State  v.  Prescott,  tried  in  Merrimack  county,  September,  1834, 
before  Riciiaudson,  C.  J.  In  that  case,  which  was  for  the  murder  of 
Mrs.  Cochran,  the  fact  of  killing  was  also  clear,  and  the  only  dcfen(  o 
was  insanity.  The  judge  charged  the  jury,  that  it  was  their  duty  not  to 
pronounce  the  respondent  guilty  until  every  reasonable  doubt  of  his 
guilt  was  removed  from  their  minds.  And,  again,  he  said,  "we  are  of 
the  opinion  that  if,  under  all  the  circumstances  of  the  case,  you  have 
any  reasonable  ground  to  suppose  that  the  prisoner  could  not  have  had 
the  use  of  his  reason,  you  are  bound  to  acquit  him." 

With  these  views  of  the  law,  and  the  course  of  our  own  courts,  there 
must  be 

A  new  trial. 


BUEDEN  OF  PROOF  ON  PROSECUTION. 

People  v.  McCann. 

[IGN.Y.  58.] 
In  the  Court  of  Appeals  of  New  Yoi-k,  September,  1867. 


insfl 
foUi 


Hon.  HiHAM  Denio, 
"    Alexaxdkk  S.  JonxsoN, 
Geohue  F.  Comstock, 
Samuel  L.  Seldex, 
John  \V.  Bhowx, 
Aloxzo  C.  Pakie, 
William  II.  Siiaxklaxd, 
Levi  F.  IJowkx, 


(I 


-  Judges, 


Burdenof  Proof— Erroneous  chargre.  — Ona  trijil  for  murder  where  the  defence  was 
insanity,  the  judge  charged  tlie  jury  that  sanity  being  the  normal  state  of  tlio  mimi 
there  is  no  presumption  of  insanity;  tliat  the  burden  of  proving  it  is  upon  the  prisoner; 
that  a  failure  to  prove  it,  like  a  failure  to  prove  any  other  fact,  is  the  misfortune  of  tlu- 
party  attempting  tlie  proof,  and  tliat  they  must  be  satisfied  of  his  insanity  beyond  a 
reasonable  doub', ;  otherwise  tliey  must  convict.    Held,  error. 

Writ  of  E^iror  to  the  Sniircme  Court. 

The  prisoner  ■«?as  iiscHcted  for  the  murder  of  his  \vife.  The  killing 
was  not  controverted,  but  the  defence  rested  entirely  on  the  ground  thai 
he  was  in  a  state  of  insanity  at  the  time  the  crime  was  committed. 
Evidence  was  received  upon  this  point,  and  the  presiding  judge  gave 


INSTRUCTIONS    AS    TO    BUKDEN    OF   PUOOl'. 


491 


Review  of,  by  Appellate  Court 


instructions  to  the  jury  iu  relation  thereto  which  are  set  forth  in  the 
following  opiniori.     The  prisoner  was  convicted. 

Lyman  Tremain  and  Rnfiis  W.  PecMum,  for  the  plaintiff  in  error. 

Hamilton  Harris,  for  the  Peoi)le. 

BowKN,  J. — On  the  trial  of  the  prisoner,  the  presiding  justice 
charged  tb  .r'.ry,  among  other  things,  as  follows:  "The  fact  of  the 
killing  is  •«"!,  litted ;  that  the  act  was  done  by  the  prisoner  is  not  dis- 
()iited  ;  thus  the  'ssue  is  really  reversed  from  the  usual  one.  The  ques- 
tion of  his  insanity  is  matter  of  positive  defence,  to  be  affirmatively 
proved ;  a  failure  to  prove  it  is  (like  the  failure  to  prove  any  other 
fact)  the  misfortune  of  the  party  attempting  to  make  the  proof ;  and 
in  this  case,  as  in  all  cases  of  fact,  you  arc  not  to  presume  what  has  not 
been  proved,  under  the  distinctions  and  ui)on  the  principles  alread}- 
gw^n  you.  The  act  being  plainly  committed,  and  that  the  prisoner  did 
it  being  undoubted,  and  the  defence  set  up  on  his  part  that  he  was 
insiuie,  the  burden  of  the  proof  is  shifted.  In  the  proof  of  the  deed 
Itself,  if  any  reasonable  doubt  be  left  on  your  minds,  the  prisoner  is  to 
be  acquitted;  but  as  sanity  is  the  natural  state,  there  is  no  presumption 
of  insanity,  and  the  defence  mutit  be  proved  beyond  a  reasonable  doubt. 
If  (canvassing  the  whole  evidence  on  the  legal  principle  laid  down  iu  the 
charge)  the  prisoner  has  satisfied  3'ou  so  far  bej'ond  a  reasonable  doubt 
that  you  find  that  he  was  at  the  time  of  the  killing  so  far  really  insane 
!is  not  to  be  responsible  (under  the  distinctions  stated  to  you)  for  this 
particular  act,  you  acquit ;  otherwise  you  cannot." 

When  an  erroneous  ruling  or  an  erroneous  charge  is  excepted  to,  the 
judgment  is  reversed,  unless  the  appellate  court  is  satisfied  that  the 
party  could  not  have  been  prejudiced  thereby ;  but  this  act  requires  a 
reversal  only  where  the  coiu't  is  satisfied  that  the  party  has  been  actually 
prejudiced ;  and  I  do  not  see  how  the  court  can  ordinarily  be  thus 
satisfied,  unless  upon  a  review  of  the  whole  evidence  introduced  upon 
the  trial,  a  very  small  portion  of  which  is  before  us  in  this  case. 

The  prisoner's  counsel,  however,  complain  of  that  part  of  the  charge 
in  which  the  jury  were  instructed,  in  effect,  that  unless  they  were  satis- 
fied, beyond  a  reasonable  doubt,  that  the  prisoner  was  insane  at  the 
time  of  the  homicide,  he  was  not  entitled  to  a  verdict  of  acciuittal  on 
that  ground.  If  this  part  of  the  charge  was  erroneous,  I  think  it  must 
1)0  held  that  the  verdict  was,  in  the  language  of  the  statute,  "against 
law."  That  the  deceased  died  from  blows  inflicted  by  the  prisoner  was 
not  disputed  upon  the  trial,  the  only  defence  interposed  being  insanity ; 
and  as  evidence  was  introduced  tending  to  substantiate  the  defence,  the 


492 


THE    BUIIDEX    OF   PUOOF    OF    INSANITY. 


Peoplu  V.  McCiiuu. 


verdict  should  have  been  predicated  upon  correct  legal  rules  applicablo 
to  such  defence. 

It  is  a  general  rule,  applicable  to  all  criminal  trials,  that  to  warrant  a 
conviction  the  evidence  should  satisfy  the  jury  of  the  defendant's  guiU 
beyond  a  reasonable  doubt,  and  it  has  been  held  that  there  is  a  distinc- 
tion in  this  respect  between  civil  and  criminal  cases.  This  rule  is  based 
upon  the  presumption  of  innocence,  whi(!h  always  exists  in  favor  of 
every  individual  charged  with  the  commission  of  a  crime.  It  is  also  a 
rule,  well  established  by  authority,  that  wliere,  in  a  criminal  case,  insan- 
ity is  set  up  as  a  defence,  the  burden  of  proving  the  defence  is  with  the 
defendant,  as  the  law  presumes  every  man  to  be  sane.  But  I  apprehcuil 
that  the  same  evidence  will  establish  the  defence  which  would  prove  in- 
sanity in  a  civil  case.  The  rule  requiring  tlie  evidence  to  satisfy  the 
jury  beyond  a  reasonable  doulit  is  one  in  favor  of  the  individual  on 
trial  charged  with  crime,  and  is  applicable  only  to  the  general  conclu- 
sion, frc.m  the  whole  evidence,  of  guilty  or  not  guilty. 

In  State  v.  Spencer,^  Chief  Justice  Ilornblower  laid  down  the  rule 
that  in  order  to  acquit  a  person  on  tlie  ground  of  insanity,  tiie  proof  of 
insanity,  at  the  time  of  committing  the  act,  ought  to  be  as  clear  and 
satisfactory  as  the  proof  of  committing  the  act  ought  to  be,  in  order  to 
find  a  sane  man  guilty. 

But,  with  all  due  deference,  I  think  the  rule  is  incorrect  in  principle 
and  contrary  to  the  ancient  authorities,  especially  if,  as  is  said  by  ele- 
mentary writers,  a  jury  is  authorized  to  find  a  fact,  when  the  effect 
will  be  to  charge  an  individual  with  a  debt,  from  evidence  less  satisfac- 
tory than  when  it  will  convict  him  of  a  crime. 

In  Commomvealth  v.  Kimball-  it  was  held  that  a  charge,  in  a  criminal 
case,  that  where  the  Government  had  made  out  a  prima  facie  case,  it  was 
incumbent  u[)on  the  defendant  to  restore  himself  to  that  presumption  of 
innocence  in  which  he  was  at  the  commencement  of  the  trial,  was  erro- 
neous, and  that  the  instruction  should  have  been  that  the  burden  of 
proof  was  upon  the  Conunonwealth  to  prove  the  guilt  of  the  defendant, 
and  that  he  Avas  to  be  presumed  to  be  innocent  unless  the  whole  evi- 
dence in  the  case  satisfied  them  he  was  guilty. 

In  Commomvealth  v.  Rogers,^  the  defendant  was  tried  on  an  indictment 
for  murder,  and  insanity  was  set  up  as  a  defence  ;  and  after  the  jury  had 
retired  to  consider  of  their  verdict,  they  returned  into  court  to  inquire 
whether  they  must  be  satisfied  beyond  a  doubt  of  the  insanity  of  the 
prisoner  to  entitle  him  to  an  acquittal.     The  chief  justice,  in  reiDly,  lu- 


stra 

the 


'  21  N.  J.  (L.)  196. 


«  24  Pick.  366. 


•  7  Meto.  COO. 


IJUUDEX    OF    PUOOF    OX    PUOSECUIIOX. 


41)3 


Concurring  Opinion  of  Brown,  J. 


5  applicable 

0  warrant  a 
(lant's  guilt 
is  a  distino- 
ule  is  based 
in  favor  of 

It  is  also  ii 
ease,  insau- 
!  is  with  the 
i  apprehend 

1  prove  ill- 
satisfy  the 
dividual  on 
ral  conclu- 

n  the  rule 
le  proof  of 
s  clear  and 
in  order  to 

I  principle 
lid  by  clo- 
the effect 
s  satisfae- 

a  criminal 
ase,  it  was 
imption  of 
was  ei-ro- 
burden  of 
efendaut, 
-vhole  evi- 

ndictment 

jury  had 

to  inquire 

ity  of  the 

reply,  in- 


structed them  that  if  the  preponderance  of  the  evidence  was  in  favor  of 
the  insanity  o*  the  prisoner,  they  would  lie  authoi'izeil  to  find  him  insane. 
In  Commonivealth  \.  York^^  the  defendant  was  tried  for  homicide; 
an  1  in  answer  to  a  question  from  the  jury  whether  it  was  for  the  pris- 
oner to  proA-^e  provocation,  or  mutual  combat,  and  whether  he  was  to 
lirve  the  benefit  of  any  doubts  upon  that  subject,  the  judge  wdio  pre- 
sided at  the  trial  said  in  reply,  among  other  things,  "  that  the  rule  of 
law  is,  when  the  fact  of  killing  is  proved  to  have  been  committed  by 
the  accused,  and  nothing  further  is  shown,  the  presumption  of  law 
is  that  it  is  malicious,  and  an  act  of  murder,  and  that  the  proof  of  mat- 
ter of  excuse  or  extenuation  lies  on  the  accused  ;  *  *  *  ^ut  when 
there  is  any  evidence  tending  to  show  excuse  or  extenuation,  it  is  fen' 
the  jury  to  draw  the  proper  inferences  of  fact  from  the  whole  evidence, 
and  decide  the  fact,  upon  which  the  excuse  or  extenuation  depends,  ac- 
cording to  the  preponderance  of  evidence." 

I  think  the  part  of  the  charge  complained  of  is  erroneous,  and  that, 
although  no  exception  was  taken,  the  error  is  such  that,  under  the  pro- 
visions of  the  statute  above  referred  lO,  the  judgment  should  be  re- 
versed for  that  cause  ;  and  if  I  am  right  in  the  above  conclusions,  it  is 
unnecessary  to  consider  the  other  questions  in  the  case. 

Brown,  J.  — I  cannot  give  my  assent  to  the  legal  presumption  em- 
braced in  the  charge   of  the  judge  upon  the   trial  of  this  action  ;    I 
think  it  at  variance  with  sound  reason  and  the  just  and  humane  princi- 
ples of  the  common  law.    The  killing  by  violence  was  clearly  made  out  by 
the  proof,  and  the  defence  was  ins.inity.     The  judge,  in  the  charge, 
treated  the  condition  of  the  prisoner's  mind  as  a  thing  separate  from 
the  act  which  constituted  the  crime,  and  the  delusion  or  defect  of  rea- 
son under  which  it  was  alleged  the  act  was  committed  to  be  aflirmativeh- 
established  by  the  prisoner,  like  those  defences  in  civil  actions  which 
admit  the  cause  of  action,  but  insist  it  has  been  determined  by  s(mie 
subsequent  matter;  that  until  the  homicide  is  made  out  to  the  satisfac- 
tion of  the  jury,  the  burden  of  proof  is  upon  the  People,  and  if  there 
is  any  doubt,  the  prisoner  is  to  have  the  benefit  of  it ;  but  whenever  the 
killing  is  proved  or  admitted,  and  the  question  of  sanity  arises,  the  issue 
and  the  burden,  as  well  as  the  party  to  be  benefited  by  the  existence  of 
a  reasonable  doubt,  are  changed.     If  the  principal  question,  and  indeed 
the  only  question  litigated,  is  involved  in  so  much  uncertainty  that  the 
jury  were  unable  to  say  whether  the  prisoner  was  sane  or  insane  — 
whether,  in  fact,  he  was  a  responsible  creature  or  one  without  reason. 


,£00. 


1  9  Mete.  9:! ;  7  Boston  L.  U.  510. 


4J)4 


THE    liUUDKN   OF   PKOOF   OF   INSANITY. 


People  V.  McCanii. 


their  duty  was  to  convict,  and  not  to  acquit.  This  is  the  theory  of  tlic 
charge.  It  is  very  teclinical  and  artistic,  and  strictly  api)licable  to  de- 
fences in  civil  actions  upon  matter  arising  snl)sequcnt  or  separate  from 
ilio  cause  of  action,  but  not  to  crimes  wliich  consist  of  acts  coui)lo(l 
with  inlontions  animating  minds  capable  of  reason  and  reflection,  and 
of  comi)rehending  the  distinction  between  right  and  wrong.  So  that 
there  may  be  no  misapprehension,  I  quote  from  the  charge  as  I  find  it 
in  the  bill  of  exceptions.  "  The  fact  of  killing,"  said  the  judge,  "is 
admitted ;  that  the  act  was  done  by  the  prisoner  Is  not  disputed  ;  thus 
the  issue  Is  really  reversed  from  the  usual  onf-  The  question  of  insan- 
ity is  matter  of  positive  defence,  and  it  is  a  defence  to  be  afl3rmativoly 
proved  ;  a  failure  to  prove  it  is  (like  the  failui*e  lo  prove  any  other  fact) 
the  misfortune  of  the  party  attempting  to  make  the  proof;  and  in  tliis 
case,  as  in  all  other  cases  of  fact,  you  are  not  to  presume  what  has  not 
been  proved,  under  the  distinctions  and  upon  the  principles  already 
given  you.  The  act  being  plainly  committed,  and  that  the  prisoner  did 
it  being  undoubted,  and  the  defence  set  up  on  his  part  that  he  was  in- 
sane, the  burden  of  proof  is  shifted.  In  the  proof  of  the  deed  itself, 
if  any  reasonable  doubt  be  left  on  your  minds,  the  prisoner  is  to  be  ac- 
quitted ;  but  as  sanity  is  the  natural  state,  there  is  no  presumption  of 
insanity,  and  the  defence  must  be  proved  beyond  a  reasonable  doubt. 
If  (canvassing  the  whole  evidence  on  the  legal  principles  laid  down  in 
the  charge)  the  prisoner  has  satisfied  you  so  far,  beyond  a  reasonable 
doubt,  that  you  find  that  he  was  at  the  time  of  the  killing  so  far  really 
insane  as  not  to  be  responsible  (under  the  distinctions  stated  to  you) 
for  this  particular  act,  you  acquit;  otherwise  you  cannot." 

It  certainly  is  true  that  sanity  is  the  normal  condition  of  the  human 
mind,  and  in  dealing  with  acts  criminal  or  otherwise  there  can  be  no 
presumption  of  insanity.  But  it  is  not  true,  I  think,  upon  the  traverse 
of  an  indictment  for  murder,  when  the  defence  of  insanity  is  interposed 
and  the  homicide  admitted,  that  the  issue  is  reversed  and  the  burden 
shifted.  The  burden  is  still  the  same,  and  it  still  remains  with  the  pros- 
ecution to  show  the  existence  of  those  requisites  or  elements  which  con- 
stitute the  crime;  and  of  these  the  intention  or  mo/?<s  ««j'w??/.s  of  the 
prisoner  is  the  principal.  The  doctrine  of  the  charge  proceeds  upon 
the  idea  that  the  homicide  is  per  se  criminal ;  that  the  mere  destruction 
of  human  life  by  the  act  of  another  is,  without  any  other  circumstance, 
murder,  or  some  of  the  degrees  of  manslaughter.  "The  fact  of  kill- 
ing," says  the  judge,  "is  admitted;  that  the  act  was  done  by  the 
prisoner  is  not  disputed  ;  thus  the  issue  is  really  reversed  from  the  usual 
one."     It  is  doubtless  true  that  when  the  killing  by  the  prisoner  is  cs- 


ti 
ill 
hi 

til 

i(| 

rJ 

ci 

ci 

sa 

bl 

t( 

11 


BUHDEX   OF   rUOOF   OX   PIJOSECUTIOX, 


4115 


Coucurrinjj;  Opinion  of  Brown,  J. 


Iieory  of  tlic 
icable  to  do- 
■parate  from 
acts  coupled 
[lection,  niid 
ig.     So  thai 
as  I  find  it 
judge,  "is 
auted;  tluis 
on  of  insjui- 
iflSrmativoly 
other  fact) 
and  in  this 
hat  has  not 
)les  already 
irisoner  did 
:  he  was  in- 
deed itself, 
is  to  be  ac- 
iniption  of 
ible  doubt. 
down  in 
reasonable 
far  really 
1  to  you) 

he  human 
can  be  no 
e  traverse 
nterposed 
le  burden 
the  pros- 
hich  con- 
ns  of  the 
eds  upon 
sti'uction 
nistanee, 
t  of  kill- 
J  by  tiic 
he  usual 
er  is  es- 


tablished by  proof,  the  law  presumes  malice  and  a  sufficient  understand- 
ing and  will  to  do  the  act.  Tlie  malicious  purpose,  the  depravity  of 
heart,  the  sufficient  understanding  and  will  must,  however,  actually  ex- 
ist. They  are  each  of  them  as  much  of  the  essence  of  the  crime  as  the 
act  of  killing.  The  rule  which  presumes  their  existence  is  a  rule  of  ev- 
idence, and  nothing  else,  and  when  the  law  presumes  their  existence,  it 
recognizes  and  demands  their  presence  as  essential  to  constitute  the 
crime.  The  jury  nnist  conscientiously  believe  they  exist,  or  else  they 
cannot  convict.  The  killing  of  a  human  being  by  another  is  not  neces- 
sarily murder  or  manslaughter.  It  may  be  either  excusable  or  justifia- 
ble. It  may  have  been  effected  under  either  of  those  conditions  referred 
to  by  the  elementary  writers,  in  which  the  will  does  not  join  with  the 
act,  and  then  it  is  not  criminal. 

We  must  be  careful  to  distinguish  between  what  constitutes  proof, 
including  those  presumptions  which  the  law  regards  as  equivalent  to 
proof  in  a  criminal  case,  and  what  we  understand  by  the  burden  of 
proof.  By  the  onus  probandi,  I  understand,  is  meant  the  obligation 
imposed  upon  a  party  who  alleges  the  existence  of  a  fact  or  thing,  nec- 
essary in  the  prosecution  or  defence  of  an  action,  to  establish  it  by 
proof.  It  may  be  proved  by  the  production  of  evidence  in  the  usual 
way ;  or  the  law,  under  certain  circumstances,  in  certain  cases  ma}' 
presume  its  existence  without  proof.  But  it  is  nevertheless  a  part  of 
the  case  of  the  party  who  alleges  its  existence,  and  to  be  made  out  be- 
yond any  reasonable  doubt.  Whenever  it  may  be  presumed  to  exist,  in 
the  absence  of  proof,  the  presumption  may  be  repelled,  and  overcome 
by  evidence ;  and  whenever  the  repelling  proof  leaves  the  fact  to  be  es- 
tablished in  doubt  and  uncertainty,  the  party  making  the  allegation  is  to 
suffer,  and  not  his  adversary.  Sound  memory  and  discretion  at  the  time 
of  killing  is  oftentimes  the  only  material  question  upon  the  trial  of  an 
indictment  for  murder.  They  are  essential  elements  of  the  crime,  to  be 
established  upon  the  trial  as  a  part  of  the  case  of  the  prosecution.  A 
vicious  will,  without  a  vicious  act,  says  Blackstone,'  is  no  civil  crime. 
So,  on  the  other  side,  an  unwarrantable  act,  without  a  vicious  will,  is  no 
crime  at  all ;  so  that  to  constitute  a  crime  against  human  laws,  there 
must  be  first,  a  vicious  will,  and  secondly,  an  unlawful  act,  consequent 
upon  such  vicious  will.  If  there  be  a  doubt  about  the  act  of  killing,  all 
will  concede  that  the  prisoner  is  entitled  to  the  benefit  of  it ;  and  if 
there  be  any  doubt  about  the  will,  the  faculty  of  the  prisoner  to  discern 
between  right  and  wrong,  why  should  he  be  deprived  of  the  benefit  of 

<  4  Bla.  Com.  21. 


496 


THE    BUKDEN   OF   PROOF   OF    INSANITY 


People  V.  McCaun. 


it,  when  both  the  act  and  the  will  are  necessary  to  make  out  the  crime  ? 
The  same  writer  also  remarks  that  where  there  is  a  defect  of  understand- 
ing, the  will  does  not  join  with  the  act ;  for  vvheie  tliere  is  no  discern 
ment  there  is  no  choice,  and  where  there  is  no  choice  there  can  be  no 
act  of  the  will,  which  is  nothing  else  but  a  determination  of  one's  choice 
to  do,  or  abstain  from,  a  particular  action.  lie,  therefore,  that  has  no 
understanding  can  have  no  will  to  guide  his  conduct.  I  am  not  contro- 
verting llie  legal  presumption  in  favor  of  sanity  until  the  contrary  a[)- 
pears.  I  am  not  dealing  with  legal  presimiptions  of  any  kind.  I  am 
treating  of  doubts  and  uncertainties  touching  guilt  or  innocence,  wliitli 
arise  ui)on  the  trial  of  most  capital  offences,  and  of  the  obligations 
which  the  law  imposes,  and  which  reason  and  humanity  demand,  tliut 
such  doubts  and  uncertainties  shall  be  removed  before  there  can  be  ;i 
conviction  and  a  consequent  deprivation  of  life. 

It  is  worth  while  now  to  turn  to  the  definition  if  the  crime  at  common 
law,  as  given  by  the  old  writers,  in  order  to  see  of  ^v'hat  it  consists.  Tho 
statute  has  introduced  some  slight  modifications,  but  for  all  the  pnr- 
po.'^es  of  the  present  inquiry  the  definition  remains  the  same.  It  is  thus 
defined  by  Sir  Edwakd  Coke  :'  "  When  a  person  of  sound  memory  and 
discrimination  unlawfully  killeth  any  reasonable  creature,  in  being,  and 
under  the  king's  peace,  with  malice  aforethought,  express  or  implied.'" 
It  is  to  be  remarked  that  every  member  of  this  sentence  is  of  the 
weightiest  import  in  determining  the  constituents  of  the  crime.  The 
killing  must  have  been  effected  by  a  person  of  sound  memory  and  dis- 
cretion. It  must  have  been  unlawful  killing ;  that  which  is  deprived  of 
life  must  have  been  a  reasonable  creature  in  being,  under  the  king's 
peace,  and  the  killing  must  have  proceeded  from  malice,  expressly 
proved  or  such  as  the  law  will  imi)ly,  which  is  not  so  properly  spite  or 
malevolence  to  the  deceased  as  any  evil  design  in  general ;  the  dictate 
of  "  a  wicked,  depraved  and  malignant  heart."  Every  one  of  these 
things  must  have  existed,  in  order  to  make  out  the  crime,  and  they  must 
be  proved  or  presumed  upon  the  trial  to  have  existed,  or  the  prisoner  is 
to  be  acquitted.  They  are  primarily  a  part  of  the  case  for  the  prosecu- 
tion, to  be  established  to  the  satisfaction  of  the  jur}'  beyond  any  rea- 
sonable doubt.  The  law  presumes  malice  from  the  mere  act  of  killing, 
because  the  natural  and  probable  consequences  of  any  deliberate  act  are 
presumed  to  have  been  intended  by  the  author.  But  if  the  proof  loaves 
it  in  doubt  whether  the  act  was  intentional  or  accidental,  if  the  scales 
are  so  equally  balanced  that  the  jury  cannot  safely  determine  the  ques- 


>  3  Inst.  47. 


BURDEN   OF   TUOOF    ON    PHO.SECUTIOX 


497 


Concurring  Opinion  of  IJrowii,  J. 


the  crime  ? 
inderstand- 
no  discern 

can  be  no 
lie's  choice 
ihat  has  no 
not  contro- 
)ntrary  ap- 
nd.  I  am 
nee,  which 
obligations 
nand,  thai 
•e  can  be  u 

at  common 
ists.     The 
11  the  pur- 
It  is  thus 
emory  and 
being,  and 
implied." 
is  of  the 
me.     Tlie 
y  and  dis- 
eprivcd  of 
he  king's 
expressly 
y  spite  or 
le  dictate 
of  these 
hey  must 
risonei'  is 
prosecu- 
any  rea- 
f  killing, 
;e  act  are 
of  leaves 
le  scales 
he  ques- 


tion, shall  not  the  prisoner  have  the  benefit  of  the  doubt?  And  if  he  is 
entitled  to  the  benefit  of  the  doubt  in  regard  to  the  malicious  intent, 
shall  he  not  be  entitled  to  the  same  benefit  upon  the  question  of  his  san- 
ity, his  understanding?  For  if  he  was  without  reason  and  understanding 
at  the  time,  the  act  was  not  his,  and  he  is  no  more  responsible  for  it 
than  he  would  be  for  the  act  of  another  man.  The  cases  which  have 
arisen  under  the  license  laws,  and  the  English  game  laws,  and  when  the 
doubt  has  been  upon  the  existence  of  the  license  or  the  necessary  qual- 
ifications, are  not  analogous  to  the  present;  because  the  necessary 
qualifications  and  the  license  upon  which  the  defendant  relied  for  a  de- 
fence are  entirely  separate  from  and  independent  of  the  acts  which  con- 
stituted the  offence.  In  i\\Q  Commonioealth  v.  ForA;,' the  question  in 
dispute  was  provocation  or  mutual  combat ;  the  Supreme  Court  of  Mas- 
sachusetts held  that  "  if  the  case  or  the  evidence  should  be  in  equiUhrio, 
the  presumption  of  innocence  will  turn  the  scale  in  favor  of  the  accused. 
But  if  the  evidence  does  not  leave  the  case  equally  balanced,  then  it  is 
to  be  decided  according  to  its  preponderance."  In  the  case  of  Com- 
monivealth  v.  ^ojjfer.s, 2  the  defence  was  insanity;  and  it  was  held  that 
being  in  the  nature  of  a  confession  and  avoidance,  it  must  be  shown 
beyond  a  reasonable  doubt  to  entitle  the  jury  to  acquit  the  accused. 
These  two  cases  are  irreconcilable  in  principle,  and  the  reason  given  for 
the  latter  is  utterly  unsound  ;  for  the  defence  of  insanity  so  far  from 
confessing  the  offence  and  then  seeking  to  avoid  it,  denies  absolutely 
the  existence  of  sufficient  capacity  to  incur  guilt  and  commit  crime. 
The  answer  of  the  judges,  as  given  bj- Tindai.l,  Ch.  J.,  in  McNagJiteii's 
Cuse,^  does  not  by  any  means  dispose  of  the  question  under  considera- 
tion. He  says :  "  The  jury  ouglit  to  be  told  in  all  cases  that  every  man 
is  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason  to 
be  resi)onsible  for  his  crimes,  until  the  contrary  is  proved  to  their  satis- 
faction ;  and  that  to  establish  a  defence  on  the  ground  of  insanit}',  it 
must  be  clearly  iiroved  that  at  the  time  of  the  committing  of  the  act  the 
party  was  laboring  under  such  a  defect  of  reason,  from  disease  of  the 
mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing ; 
or,  if  he  did,  that  he  did  not  know  he  was  doing  what  was  wrong." 
These  expressions  are  not  without  their  value,  but  they  furnish  no  guide 
when  the  question  is  shrouded  in  doubt  and  obscurity.  Wlien  psycho- 
logical science  shall  be  able  to  define  with  precision  the  exact  line  wliere 
reason  leaves  and  unreason  supervenes,  then  we  shall  be  better  able  to 
say  what  is  to  be  considered  the  clear  proof  of  a  defect  of  reason,  re- 


'  9  Mete.  93. 


2  7  Mete.  500. 


3  10  CI.  &  F.  200. 


82 


498 


TlIK   BUItDEN   OF   PROOF   OF   INSANITY. 


roople  V.  McCann 


ferred  to  in  this  opinion.  Wliat  was  said  by  IIouxblower,  C.  J.,  in 
State  V.  Spencer,^  is  not  consistent  with  itself.  After  asserting  tliat, 
when  tliore  is  doubt  of  tlic  insanity,  the  jury  ought  to  find  against  tliu 
prisoner,  it  proceeds  to  say:  "  I  do  not  mean  to  say  that  the  jury  are 
to  consider  him  sane  if  tliere  is  the  least  shadow  of  a  doubt  on  that 
subject,  any  more  than  I  would  say  they  must  acquit  a  man  when  there 
is  tlie  least  sliadow  of  a  doubt  of  his  having  committed  tiie  act.  What 
I  mean  to  say  is  that  when  the  evidence  of  sanity  on  the  one  side,  and 
insanity  on  the  other,  leaves  the  scales  in  ecjual  balance,  or  so  nearly 
poised  that  the  jury  have  a  reasonable  doubt  of  his  insanity,  then  a  man 
is  to  be  considered  sane,  and  responsible  for  what  he  does.  But  if  tlio 
probability  of  his  being  insane  at  the  time  is,  from  the  evidence  in  the 
case,  very  strong,  and  there  is  but  slight  doubt  of  it,  then  the  jury  would 
have  a  right,  and  ought,  to  say  that  the  evidence  of  his  insanity  was 
good."  I  find  it  diflBcult  to  reconcile  the  different  parts  of  this  opinion. 
The  result,  however,  seems  to  be  that  the  jury  are  to  be  governed  by 
the  degree  of  uncertainty  in  which  the  question  is  left  by  the  proof. 
Whatever  has  fallen  from  these  eminent  men  will,  doubtless,  be  accepted 
with  the  most  profound  respect ;  but  what  they  have  said  would  be  en- 
titled to  greater  weight,  upon  the  ])resent  occasion,  did  it  distinctly 
appear  that  their  attention  was  directed  to  the  circumstance  that,  not- 
withstanding the  legal  presumption,  the  sanity  of  the  prisoner's  mind  is, 
under  all  the  definitions  of  the  crime,  to  be  made  out  affirmatively  upon 
the  trial  as  a  part  of  the  case  for  the  prosecution.  I  conclude,  there- 
fore, that  the  judge  erred  in  his  charge  to  the  jury.  If  my  brethren  see 
no  objection  to  the  form  in  wliich  this  question  comes  before  the  court 
for  review,  under  the  provisions  of  the  third  section  of  the  act  of  the 
12th  of  April,  1855,  to  enlarge  the  jurisdiction  of  general  sessions  of 
the  peace  in  and  for  the  city  and  county  of  New  York  (a  subject  which 
I  have  not  been  able  to  examine),  then  the  judgment  should  be  reversed 
and  a  new  trial  granted.  Whatever  may  be  the  event,  I  have  deemed 
it  a  fit  occasion  to  discuss  the  principal  question  involved  in  the  judge's 
instructions  to  the  jury,  to  the  end  that  those  who  preside  at  the  trial  of 
persons  accused  of  capital  offences  may  know  whether  the  presumption 
of  innocence  applies  to  all,  or  only  some  of  the  facts  which  constitute 
the  crime. 
All  the  judges  concurring. 

Judgment  reversed  and  new  trial  ordered. 


>  21  N.  J.  (L.)  196. 


BURDEN   OF  I'llOOF   OX  ruOSECUTION. 


499 


O'Conncll  v.  People. 


R,  C.  J.,  in 

ertiiig  that, 
against  the 
he  jury  are 
ubt  oil  that 
when  theie 
let.     What 
e  side,  and 
r  so  nearly 
then  a  mail 
But  if  the 
jnce  ill  the 
jury  would 
sanity  was 
is  opinion. 
»vernocl  by 
the  pi-oof. 
e  accepted 
uld  be  en- 
distinctly 
that,  net- 
's mind  is, 
ively  upon 
de,  therc- 
ethren  see 
the  court 
act  of  the 
essions  of 
eet  whicli 
3  reversed 
e  deemed 
e  judge's 
le  trial  of 
sumption 
3onstitute 


''dered. 


BURDEN  OF  PROOF  ON  PROSECUTION. 

O'CoNNELL  V.  People. 

[87  N.  Y.  377.] 

In  the  Court  of  Appeals  of  New  York,  January^  1882. 

Hon.  Charles  Andrews,  Chief  Justice. 
'•     Theodore  Miller, 
Robert  Eakl, 

George  F.  Danforth,     |-  Judges. 
Francis  M.  Finch, 
Benjamin  F.  Tracy, 


It 


The  burden  of  proof  Is  upon  the  prosecution  to  show  by  the  whole  evidence  that  a  person 
charged  with  crime,  alleged  to  have  been  committed  in  a  state  of  insanity,  is  sane. 

Ekrou  to  the  general  term  of  the  Supreme  Court,  in  the  Third  Judicial 
Department,  to  review  a  judgment  entered  upon  an  order  made  September 
20,  J 881,  which  affirmed  a  judgment  of  the  court  of  general  sessions  iii 
and  for  the  county  of  Albany,  entered  upon  a  verdict  convicting  the 
appellant  of  an  assault  with  intent  to  kill. 

The  fact  of  the  commission  of  the  alleged  assault  by  the  prisoner  was 
proved,  and  upon  his  behalf  an  attempt  was  made  to  show  he  was  insane 
at  tlie  time  of  the  assault.     This  question  was  submitted  in  the  follow- 
ing language:  "  You  are  to  determine,  from  the  evidence,  whether  or 
no  he  was  insane  at  the  time  of  this  occurrence.     The  presumption  of 
the  law  is,  in  this  instance,  against  the  prisoner,  as  in  the  other  it  was 
in  his  favor.     He  is  presumed  to  be  innocent  of  the  performance  of  an 
act  until  he  is  proven  to  be  guilty.     He  is  presumed  to  be  a  sane  man, 
and  amenable  to  all  the  appliances  of  the  law,  until  he  convinces  you,  by 
evidence,  that  he  is  insane.     And  he  is  responsible  for  the  appliance  of 
the  law  urtil  he  relieves  himself  by  convincing  you  that  he  is  insane., 
and  not  responsible,  and  by  insanity  is  to  be  understood,  in  the  sense 
of  the  law,  a  diseased  condition  of  the  mind  and   conscience  of  the 
person  so  as  not  to  be  able  to  comprehend  the  nature  and  quality  of  the 
act  which  he  does,  and  so  that  he  is  not  able  to  determine  the  right  or 
the  wrong  of  that  act.     If  he  can  determine  those  two,  the  nature  and 
quality  of  the  act,  and  is  able  to  determine  whether  or  no  that  act  is. 
right  or  wrong  in  the  light  of  God's  law,  then  he  is  not  insane,  and  is 
not  relieved  from  the  responsibility  attaching  to  the  act  which  he 
does.     *    *    *    If  a  man  does  not  comprehend  the  nature  and  quality 


500 


TIIK    DURDEN   OF   PIIOOK   OF   INSANITY. 


O'ConiiL'll  V.  People. 


of  that  which  he  docs,  and  the  right  or  the  wrong,  then  he  is  relieved  ; 
if  he  docs  comi)rchend  both,  then  he  is  responsible  for  that  which  lie 
does.  If  you  have  a  reasonable  doubt,  from  the  evidence  in  this  ease, 
t!iat  the  prisoner  is  guilty  of  this  crime,  then  you  slioiild  give  him  tlie 
l)cnefit  of  tiiat  doubt,  and  he  should  stand  upon  his  ac(iuittal;  if  you 
have  no  such  doubt,  then  you  shmild  pronounce  him  guilty," 

At  the  close  of  the  charge,  the  prisoner's  counsel  requested  the  judge 
to  charge,  "  that  if,  from  the  evidence  in  the  case,  a  reasonable  dmilit 
arises  in  the  juror's  mind  as  to  the  sanity  or  insanity  of  this  dcfciulant, 
that  he  is  entitled  to  the  benefit  of  that  doubt."  The  court:  "No,  I 
decline  to  charge  that." 

A  further  request  to  charge,  "  the  defence  are  not  required  to  estab- 
lish, beyond  a  reasonable  doubt,  the  insanity  of  the  prisoner ;  if  the 
evidence  raises  a  reasonable  doubt  whether  he  was  insane  or  not,  he  is 
entitled  to  that  doubt.     The  court:  "  I  decline  to  charge  that." 

The  prisoner's  counsel  excepted  to  such  refusals  to  charge.  Further 
facts  appear  in  the  opinion. 

D.  Cacly  Herrick,  for  plaintiff  in  error. 

J.  II.  Clnte,  for  defendant  in  error. 

Daxkoktii,  J. — The  appellant  was  convicted  of  an  assault  with 
intent  to  kill.  The  conviction  was  afflrmed  by  the  general  term  of  tlic 
Supreme  Court,  and  upon  appeal  from  that  decision  two  points  arc 
made  in  his  behalf.  First,  that  the  court  erred  in  charging  the  jury. 
In  support  of  this  proposition  it  is  assumed  by  his  counsel  that  the  judge 
charged  "  that  the  defence  of  insanity  is  an  affirmative  defence,"  and 
the  prisoner  bound  to  satisfy  the  jury  b}^  proof  that  he  was  insane. 
Second,  that  the  court  erred  in  refusing  to  charge  that  the  defendant 
was  entitled  to  the  benefit  of  any  reasonable  doubt  arising  on  the  evi- 
dence as  to  his  sanity  or  insanity.  "We  think  neither  are  well  taken. 
The  questions  upon  the  trial  were  first,  were  the  acts  charged  com- 
mitted by  the  prisoner,  and  second,  at  the  time  of  their  commission  was 
he  in  such  condition  of  mind  as  to  be  responsible  for  them.  If  answered 
in  the  alHrmative  the  acts  constituted  a  crime,  and  the  conviction  was 
proper.  As  to  each,  therefore,  the  burden  was  upon  the  prosecutor,  foi- 
upon  the  existence  of  both  the  guilt  of  the  prisoner  depended. 

This  result  follows  the  general  rule  of  evidence  which  requires  him 
who  asserts  a  fact  to  prove  it.  That  the  first  proposition  was  estab- 
lished is  not  denied.  The  legal  presumption  that  every  man  is  sane  was 
sufficient  to  sustain  the  otlier  until  repelled,  and  the  charge  of  the  judge, 
criticised  in  the  first  point  made  by  the  appellant,  goes  no  further.  If 
the  prisoner  gave  no  evidence  the  fact  stood ;  if  he  gave  evidence  tend- 


relieved ; 

which  he 
this  case, 
e  him  tlie 
il;  if  you 

the  judge 
l»le  doulit 
lefeiidant, 
:  "No,  I 

I  to  estab- 
er ;  if  the 
not,  he  is 

Further 


ault  with 
nil  of  the 
:)oint3  are 
the  jury, 
tlie  jmlgt' 
(ice,"  and 
IS  insane. 
Jefendaiit 
a  the  evi- 
ell  taken, 
ged  colli- 
sion was 
answered 
3tion  was 
jutor,  foi- 

lires  him 
as  estab- 
sane  was 
he  judge, 
ther.  If 
ace  tend- 


IJUUDEN   OF   PUOOF   ON    IMiOSKCl  TION. 


r.oi 


O'Coniii'll  V.  rt'oplc 


iiig  to  overthrow  it,  the  prosecutor  might  jiroduce  answering  testimony, 
but  in  any  event  he  must  satisfy  tlie  jury,  upon  the  whole  evidence,  that 
the  prisoner  was  mentally  responsible ;  for  the  affirmative  of  the  issue 
t(!ndered  by  the  indictment  remained  with  the  prosecutor  to  the  end  of 
the  trial.  Without  going  to  other  authorities  these  observations  are 
warranted  by  Brotherton  v.  People,^  wlu-re  the  general  rule  above 
stated  was  applied  to  (juestions  similar  to  those  before  us. 

It  was  not  violated  by  the  trial  court.  After  referring  to  acts  consti- 
tuting the  offence  charged,  and  the  rules  of  law  applicable  thereto, 
tlie  learned  judge  called  attention  to  the  fact  alleged  in  behaif 
of  the  prisoner,  that  he  was  an  insane  man  at  the  time  they 
were  committed  and  so  not  responsible  therefor,  and  directed  them 
"  to  determine  from  the  evidence  whether  or  no  sucli  is  the  fact."  "  lie 
is  presumed,"  the  court  said,  "to  be  a  sane  man,  until  he  convinces 
you  by  evidence  that  he  is  insane  ;  "  delined  insanity  in  a  manner  not 
objected  to,  and  said, '  'if  such  was  the  prisoner's  condition  he  was  relieved 
from  responsibility,  otherwise  he  was  responsible  for  that  which  he 
does,"  and  in  conclusion  said,  "if  you  have  a  reasonable  doubt,  from 
the  evidence,  that  the  prisoner  is  guilty  of  this  crime,  then  you  should 
give  him  the  benefit  of  that  doubt. ' '  These  words  related  to  and  covered 
the  whole  issue  tendered  by  the  indictment.  It  is  quite  impossible  that 
the  jury  should  have  misapprehen<led  them.  The  prosecutor  had  con- 
ducted the  trial  upon  the  theory  that  the  burden  was  upon  him  of  main- 
taining, as  a  part  of  that  issue,  the  sanity  of  the  prisoner ;  this  further 
appears  from  his  request,  when,  anticijiating  that  the  jury  might  fail 
to  find  the  greater  offence,  the  district  attorney  asked  the  court  to 
charge  "  that  if  the  jury  find  the  wounds  were  inflicted  by  the  prisoner, 
and  that  he  was  sane,  etc.,  they  would  convict  of  an  offence  lesser  in 
degree,"  and  the  court  complied.  Here  again,  as  well  as  in  the  pre- 
ceding part  of  the  charge,  the  sanity  of  the  prisoner  is  made  a  necessary 
element  in  the  definition  of  the  crime. 

It  therefore  was  not  necessary  to  comply  with  the  request  of  the 
prisoner's  counsel.  The  substance  of  the  request  was  embraced  in  the 
charge  made,  and  the  court  could  not  be  required  either  to  repeat  it  or 
answer  again  to  different  portions  as  analyzed  by  counsel. 

We  think  the  charge  will  not  bear  the  construction  on  which  the  first 

point  of  the  appellant  rests,  and,  as  the  trial  was  conducted  without 

enor,  the  conviction  should  be  affirmed. 

All  concur,  Eakl,  J.,  concurring  in  result. 

Judgment  affirmed. 

1  76  N.  Y.  159. 


502 


THE    BURDEN   OF   PROOF   OF    INSANITY. 


Dove  V.  State. 


lurden  of  proof— test  lv  insanity— experts—  hypothetical 
case— charge  of  court  — plea  of  insanity. 

Dove  v.  State. 

[3  Ilcisk.  348.] 
In  the  Supreme  Court  of  Tennessee^  January,  1872. 

1.  Burden  of  Proof.  —  Erroneous  Instruction. —  A  charge  tiiat  "  the  proof  of  in!>nnity 

must  be  as  clear  and  satisfactory,  in  order  to  acquit,  as  the  proof  of  tlie  crime  ought  to 
be  t(.'  lliid  a  sane  man  guilty;"  or  to  charge  that  if  the  jury  have  a.  rcasouable  doubt  a.s 
to  the  insanity  of  defendant  tliey  ought  to  convict,  is  error. 

2.  Test  of  Insanity.  — No  i)crson  can  be  guilty  of  murder  who  has  not  sufficient  discern- 

ment to  distinguish  between  good  and  evil,  and  who  lias  no  cousciousnesj  of  doing 
wrong  in  the  act  he  is  cunmiilting. 

3.  Hypothetical  Case.  —  When  to  be  Submitted.  —  It  is  not  error  for  the  court,  on  a  trial 

for  niurder,  where  insanity  is  set  up  as  a  defence,  to  require  the  defendant  to  submit  his 
hypothetical  case  to  his  jjrofessional  witnesses,  before  the  rebutting  evi<Ience  of  the 
State  is  heard  on  the  (jucstion  of  insanity.  If  evidence  materi.'illy  varying  the  hypo- 
tlietical  case  is  afterwards  introducad,  the  defendant  must  ask  leave  to  re-examine  iis 
to  the  new  matter.  If  the  new  proof  docs  not  make  any  change  in  the  hypothetical  case 
submitted,  the  defendant  would  not  be  injured  by  the  refusal. 

4.  Opinions  of  Unprofessional  Witnesses.  —  Uniirofessional  witnesses  may  be  asked, 

after  giving  the  circumsiances  and  conduct  of  the  party,  to  state  their  o|)iniou  as  to  lii^ 
sanity;  and  the  excluSicn  of  such  evidence  oflerec  by  a  defendant  is  error. 

5.  Definition.  — Plea,  for  Defence. —It  is  not  error  for  the  (lourt,  in  its  charge,  to  si)cak 

of  the  defence  of  insanity  set  up  as  a  plea  of    nsanity  put  in. 

6.  Plea  Admits  the  Killing-. —  In  a  case  where  the  killing  is  proved  beyond  question,  for 

the  judge  to  charge  the  jury  that  the  i)lea  of  iusauity  put  iu  (the  defence  of  insanity) 
was  an  admission  of  the  killing,  is  not  Cx-ror. 

Appeal  from  Montgomery  County. 

Horace  II.  Lurton,  for  the  prisoner. 

Attorney-General  HeisJcell,  for  the  State. 

Nicholson,  C.  J.,  delivcied  the  opinion  of  tiie  court. 

Ricliard  Dove  was  tried  and  convicted  r.f  murder  in  the  first  degree, 
for  killing  William  Diguins.  The  jury  found  that  the  murder  was  coin- 
mitted  with  mitigating  circumstances,  wliereupon  he  was  sentenced  to 
the  penitentiary  for  life.  He  has  appealed  to  this  cotirt.  The  case  was 
tried  at  the  January  term,  1871,  of  the  Criminal  Court  of  Montgomery 
County,  where  Mie  following  evidence  was  addueed:  — 

The  first  witness  introduced  by  the  State  was  Virginia  Holland.  De- 
fendant objected  to  her  examination  on  the  ground  that  she  was  liis 
wife,  but  refused  to  examine  her  on  voir  dire,  and  objected  to  her  ex- 
amination by  the  State  to  prove  her  competenc}-.  Defendant  offered  to 
prove  by  evidence  aliuitde.,  that  she  was  his  wife.     The  court  gave 


IC! 


(11 

w 


^■d- 

K--^' 


DOVE    V.   STATE 


r){);i 


•THETICAL 


Tliu  Kvidencu  in  tlie  Case. 


of  of  insanity 
■inie  ouglit  to 
able  doubt  a.i 

?ient  discern 
nesj  of  doing 

lurt,  on  a  trial 
to  submit  Ins 
idenceof  (he 
'ig  tlie  liypo- 
e-examine  as 
Jthetical  cast- 
ay  be  askod, 
iiion  as  to  lii- 

rge,  to  speak 

question,  for 
of  insanity) 


5t  degrco, 
was  coin- 
ti-'uct'd  to 
case  was 
iitgomery 

11(1.  De- 
3  was  liis 
3  luT  ex- 
•ffored  to 
urt  gave 


leave  to  prove  that  fact.  Defendant  then  offered  to  prove  the  marriage 
of  the  witness  with  defendant,  by  reputation,  cohabitation,  conduct, 
and  acknowledgment  of  the  parties.;  and  tendered  proof  of  that  char- 
acter, but  the  court  refused  to  hear  such  proof,  and  ruled  that  a  mar- 
riage could  only  be  shown  by  the  certificate  of  marriage,  the  testimony 
of  the  officer  who  performed  the  ceremony,  or  the  evidence  of  witnesses 
who  witnessed  the  performance  of  the  ceremony'.  Defendant  excepted 
to  the  ruling.  Witness  then  proved  that  she  liad  been  living  with  de- 
fendant three  or  four  years.  They  were  living  in  a  house  in  the  coaling 
ground  of  Poplar  Springs  Furnace,  in  Montgomery,  at  the  time  of  \Vm. 
Diggins'  death,  which  took  place  in  1809.  Dove  was  working  for 
Diggins  in  the  coaling  grounds.  Dove,  witness,  her  two  children,  her 
mother,  her  sister,  and  Diggins,  all  lived  in  the  same  house,  it  having 
but  one  room.  There  were  three  beds  in  the  room  ;  witness  and  Dove 
occupied  one,  her  mother  and  sister  anothe  ,  and  Diggins  and  her  oldest 
child,  seven  years  old,  the  third.  Dove  and  Diggins  ate  supper  to- 
gether ;  they  were  very  friendly ;  there  wn?  no  bad  feeling  between 
them;  they  laughed  and  talked  togethr  ,  and  then  went  to  bed,  and 
were  so  laughing  and  talking  when  witness  went  to  sleep.  About  two 
o'clock  at  night,  witness  was  awakened  by  the  l)lows  being  struck  by 
Dove  with  an  axe,  and  by  the  cries  of  Diggins,  who  said :  "  Oh !  Dick  ; 
1.1;!  Dick."  Witnes  aw  and  heard  Dove  strike  Diggins  two  or  three 
blows  with  the  axe.  .^ue  jumped  up  and  went  to  Diggins'  bed,  saying: 
"Dick,  you  have  killed  my  child!  "  She  pulled  the  child  from  under 
Diggins.  Dove  said:  "You  see  what  I  have  done,  and  it  is  not  the 
fust  I  have  done  that  way.  I  have  done  many  a  one  that  waj-." 
He  walked  across  the  floor,  and  the'i  said:  "Now,  if  the  old 
son-of-a-bitch  has  any  money,  I  inte.id  to  take  it  to  travel  on;" 
and  took  up  Diggins'  pants,  and  took  out  his  pocket-book  and 
examined  it,  and  said:  "  IJe's  got  no  money;  here's  some  scrip; 
I  won't  have  that;  but  I'll  take  his  knife;"  and  did  put  it  in  his 
pocket.  He  then  threw  a  blanket  over  Diggins.  Dove  then  asked  wit- 
ness Avhat  she  was  going  to  do ;  whether  she  was  going  with  him,  She 
replied  she  did  not  know;  that  she  didn't  wantto  go  with  him.  He 
then  w^ent  out,  and  came  in  again  with  the  axe  in  his  hand  and  said : 
"  Now  say  what  you  are  going  to  do,  and  say  it  quick.  I  can't  leave 
you  to  witness  against  me.  If  you  don't  go  with  me  I  shall  see  the 
last  of  all  of  you.  You  shan't  be  left  for  witnesses  against  inc."  He 
then  told  witness's  mother  to  take  Diggins'  chickens  to  the  Furnace, 
about  a  mile  and  a  half  or  two  miles,  and  sell  them,  and  collect  a  half 
dollar  a  negro  owed  him,  and  meet  him  at  the  Furnace  that  night  at 


504 


THE   BURDKN   OF    PROOF    OP    INSANITY. 


Dove  V.  State. 


twelve  o'clock.  Witness,  Dove,  and  her  two  children  then  went  off 
into  the  woods ;  but  before  leaving.  Dove  hid  the  axe  under  the  sill  of 
the  house,  where  he  said  it  could  not  l)e  found.  They  stayed  in  tlio 
woods  all  day.  Dove  kept  the  knife  in  his  hand,  and  said  he  woul<l 
kill  witness  if  she  tried  to  leave  him.  Late  in  the  evening  they  went 
towards  the  Furnace,  and  ui)on  getting  near  the  road,  she  saw  Mr. 
^Vlathis  and  ]\Ir.  Brown,  and  she  ran  to  them  with  her  children,  and 
asked  for  protection.  She  went  on  with  them  to  the  Furnace.  Dove 
had  lived  with  Diggins  five  or  six  months.  She  said  Dove  was  once 
jealous  of  Diggins,  but  he  had  been  satisfied  about  that.  Di^gii  >vas 
an  old  gray-headed  man,  about  sixty  years  old.  He  was  a  quiet,  good 
old  man.  She  said  Dove  was  a  very  passionate  man  ;  often  got  very 
mad  without  any  cause ;  would  lie  violent  and  irritable  when  no  one  had 
troubled  him.  Sometimes  threatened  witness  and  her  mother,  and  had 
struck  her  without  provocation.  He  frequently  threatened  to  kill  some- 
bod}';  frequently  said  he  would  have  the  heart's  blood  of  somebody, 
walking  the  floor  in  a  great  fury,  throwing  his  arms  wildly  about,  tho^  ''.■ 
nobody  had  done  anything  to  him.  His  throats  were  not  at  an3-b  )  i 
in  particular.  During  one  evening,  while  they  were  all  sitting  around 
the  fire,  he  jumped  up,  gathered  a  chair,  and  tried  to  strike  Diggins ; 
but  was  prevented  by  a  young  man  present.  There  was  no  cause  for 
this,  no  quarrel,  nor  was  any  wai-ning  given  of  his  attack.  He  was  not 
drunk,  but  had  taken  two  or  three  drinks.  He  often  complained  of 
headache  ;  he  so  complained  during  the  day  before  Diggins'  death.  To 
the  question  of  the  attornej'-general,  whether  Dove,  from  all  she  knew  of 
him,  was  a  man  of  sane  or  insane  mind,  answered:  She  never  saw  any 
thing  wi'ong  about  him  ;  he  was  a  very  quiet  man  ;  a  sullen  and  irritable 
man  often,  but  talked  like  a  man  of  sense.  Sarah  Holland,  the  mother 
of  the  last  witness,  gave  the  same  account  of  the  transaction,  and  stated 
the  character  and  peculiarities  of  Dove  about  as  the  last  witness.  John 
W.  Mathis  proved  that  Dove  was  a  lazy,  trifling,  indolent  man  ;  he  was 
a  strange  man  ;  nobody  knew  him ;  witness  never  knew  him,  though  ho 
iiad  lived  with  him.  Sam  Tally,  worked  with  Dove  ;  he  talke  1  like  any 
other  man  ;  he  never  had  much  to  say ;  was  very  quict.  One  day,  when 
they  were  working,  he  suddenly  stopped,  and  said,  with  an  oath,  "  he 
would  kill  any  man  who  would  not  work  for  himself,  but  made  other 
people  work  for  him."  He  said  Diggins  did  not  work  for  himself,  but 
made  him  work  for  him  ;  that  he  would  kill  him  before  he  would  stand 

Diggins 

PC? 


it  any  longer.     This  was  some  time  before  Diggins  was  killed. 


was  not  present,  and  they  had  no  quarrel, 
any  other  man. 


lie  talked  and  acted  like 


DOVE    V.  STATE. 


')(),> 


The  Evidence  in  tlie  Case. 


1  went  off 
the  sill  of 
yed  in  tlio 
I  lie  wouM 
they  went 
e  saw  Mr. 
Idren,  and 
ce.     Dove 
was  once 
i^gii     was 
iiiet,  good 
got  very 
10  one  had 
,  and  had 
kill  some- 
omcbody, 
It,  tho  :  ;! 
;  anyboiiy 
g  aroiuul 
Diggins ; 
cause  for 
I  was  not 
ained  of 
ath.     To 
e  knew  of 
saw  any 
irritable 
e  mother 
tid  stated 
Joiui 
he  was 
lough  he 
like  any 
\y,  when 
ith,  "  he 
de  other 
self,  but 
Id  stand 
Diggins 
3ted  like 


The  State  introduced  and  read  a  paper  purporting  to  be  the  return 
of  a  jury  of  inquest  over  Diggins'  body,  over  the  objections  of  de- 
fendant. 

Jefferson  Sly,  for  defendant,  had  employed  Dove  to  work.  He  quit 
without  cause  ;  witness  went  to  see  him  ;  complained  of  his  head  ;  acted 
strangely  ;  walked  the  floor,  and  acted  like  a  drunken  man,  but  he  had 
no  whiskey.  While  Dove  worked  for  witness,  he  was  very  taciturn  and 
gloomy ;  would  sit  by  himself  for  hours  at  a  time  ;  indulged  in  talking 
to  himself  a  great  deal ;  would  mumble  and  sing  to  himself  ;  complained 
often  of  pains  in  his  head ;  wouldn't  work  as  long  as  he  had  an3-thing  in 
his  house  to  eat.  He  was  asked  by  defendant's  counsel  what,  from  all 
he  had  stated,  was  the  condition  of  his  mind:  was  he  of  sound  or  un- 
sound mind?  The  attorney-general  objected  to  the  question,  and  the 
objection  was  sustained  by  the  court.  James  Andrews,  T.  J.  Sly,  and 
Jeff  Wooten,  testified  to  similar  characteristics  of  Dove  as  the  last  wit- 
ness. Patsey  Cozzart,  a  sister  of  Dove,  testified  that  he  was  forty- 
seven  or  forty-eight  years  of  age  ;  was  born  in  Alabama ;  went  to  East 
Tennessee,  and  lived  there  until  lie  was  thirteen  or  fourteen  3'ears  of 
age,  when  he  cme  to  Nashville.  He  was  a  clerk  for  Mr.  Norman,  in 
the  grocery  business,  one  or  two  years.  While  engaged  with  ]Mr.  Nor- 
man he  received  a  bad  wound  on  one  side  of  his  head  ;  he  was  not 
expected  to  live.  He  was  deranged  from  the  wotind.  He  talked  silly 
!md  incoherently.  He  stayed  with  witness,  while  he  was  laboring  under 
the  wound,  about  four  months.  He  then  left,  and  returned  to  Mr.  Nor- 
man's. He  was  not  then  well ;  he  was  not  much  better.  He  complained 
of  pains  in  the  head  all  the  time.  He  received  the  injuiy  about  four- 
teen or  fifteen  years  ago.  BefoiC  receiving  the  injury  he  Avas  as  smart, 
active,  and  energetic  as  any  ma  1.  She  never  saw  him  out  once  after  he 
left,  and  that  was  twelve  or  fifteen  yearf,  ago.  She  saw  him  but  a  few 
minutes  ;  he  said  his  head  was  not  well. 

The  counsel  for  the  defendant  announced  to  the  court,  that  he  ex- 
pected to  examine  several  physicians,  as  experts,  on  the  subject  of  de- 
fendant's sanity,  but  desired,  before  doing  so,  that  the  State  might 
examine  any  further  witnesses  she  might  have  on  that  subject.  The 
court  ruled  that  the  defendant  must  complete  his  testimony  before  the 
rebutting  evidence  of  the  State  should  be  introduced.  Defendant  ex- 
cepted to  the  ruling. 

Dr.  D.  F.  Wright  testified,  that  he  had  been  practising  as  a  physician 
and  surgeon  for  twenty-seven  years.  He  had  examined  the  head  of  de- 
fendant, and  found  that  he  had  received  an  injury  to  his  head,  appar- 
eutly  from  a  blow.    It  appears  that  there  are  two  injuries  to  his  head  — 


50(1 


BURDEN    OF    I'ROOP   OK    INSANITY 


Dove  V.  State. 


one  on  the  right  side,  just  below  the  crown  ;  the  skull  has  been  fractured, 
and  a  portion  of  the  bone  is  depressed  upon  the  brain.  The  depressfcl 
portion  is  fractured  about  the  centre,  and  a  p'^ce  of  the  skull  bone  is 
broken  off,  which  protrudes  through  the  fracture,  and  is  now  sticking 
down  upon  the  brain.  One  of  the  injuries  may  have  been  the  result  of 
concussion,  resulting  from  the  blow  which  caused  the  depression. 
Without  knowing  anything  of  the  previous  history  of  the  defendant, 
witness  said  such  an  injury  was  bound,  more  or  less,  to  produce  a 
diseased  mind.  Such  an  injury  might  produce  disease  of  the  mind  that 
might  lay  dormant  an  indellnite  length  of  time,  or  it  might  indicate  its 
presence  only  in  paroxysmal  insanity.  Its  presence  might  only  be  de- 
tected by  some  startling  crime,  that  would,  for  the  first  time,  call  atten- 
tion to  symptoms  tliat  only  an  experienced  person  could  have  noticed. 
Paroxysmal  insanity  woidd  be  the  character  of  insanity  most  likely  to 
result  fi'om  such  an  injuiy.  During  the  intervals  between  the  paroxysms 
of  one  afflicted  with  that  form  of  insanity,  the  patient  might  appear  rea- 
sonably rational,  and  might  converse  with  intelligence.  The  symptoms 
of  paroxysmal  insanity  ore,  moodiness,  gloominess,  melancholy,  love  of 
solitude,  a  feverish  restlessness,  irritability,  pass.'on  without  apparent 
cause.  The  persons  afflicted  often  commit  the  most  horrible  crimes 
without  any  known  cause,  murders  without  motives  discernible,  and 
often  upon  those  persons  to  whom  they  are  most  dearly  attached,  or 
those  to  whom  they  are  indifferent.  The  patient  is  often  overpowered 
by  an  impulse  to  commit  murder,  and  yet  is  conscious  of  the  crime 
he  commits,  and  of  the  penalty  incuired.  He  may  converse  rationally 
about  his  crime,  confess,  or  seek  to  conceal  it.  An  effort  to  conceal 
the  crime,  or  to  escape,  would  not  be  evidence  of  sanity. 

The  counsel  for  defendant  then  submitted  to  tlie  witness  a  written 
synopsis  of  the  facts,  as  proven  in  tlie  case,  relative  to  the  condition  of 
defendant's  mind,  and  asked  his  nodical  opinion  on  the  hypothetical 
case  stated.  He  said  the  symptoms  there  stated  were  tlie  i)recise  symp- 
toms of  one  laboring  under  paroxj'smal  insanity,  and  that  he  should  say 
the  strong  probability  was,  that  he  was  insane  at  the  time  of  the  com- 
mission of  the  crime ;  that,  without  personally  knowing  the  facts  and 
the  defendant,  he  could  not  put  it  in  stronger  langua;j:e. 

Drs.  T.  D.  Johnson  and  J.  M.  Larkins  were  asked  their  opinions  on 
the  same  hj'pothetical  state  of  facts,  and  they  fully  concurred  in  the 
opinion  given  by  Di-.  Wright. 

After  charging  the  law  correctly  as  to  the  several  grades  of  homicide, 
the  circuit  judge  proceeded  to  instruct  the  jury  on  the  defence  of  in- 
sanity, as  follows :  — 


BURDEN   OF   PR001;\ 


507 


Expert  Evldencu;    Order  of  Proof. 


Ben  fractured, 
rhe  depressed 
skull  bone  is 
now  stickiim 
the  result  of 
3  depression, 
le  defen^lant, 
io  produce  a 
the  mind  that 
t  indicate  its 
it  only  be  de- 
le,  call  atten- 
have  noticed, 
lost  likely  to 
le  paroxysms 
t  appear  rca- 
lie  symptoms 
holy,  love  of 
)ut  apparent 
rrible  crimes 
X'rnible,  and 
attached,  or 
overpowered 
of  the  crime 
se  rationally 
ft  to  conceal 

iss  a  written 
condition  of 
hypothetical 
:'ecise  symi)- 
3  should  say 
of  the  com- 
ic facts  and 

opinions  on 
irred  in  the 

f  homicide, 
once  of  in- 


"The  law  presumes  a  man  to  be  sane,  until  the  contrary  is  i)roven. 
The  evidence  of  the  insanity  of  defendant  must  be  as  clear  and  satisfac- 
tory to  overturn  the  presumption  of  the  law  in  favor  of  sanity,  as  it  is 
required  to  be,  to  overturn  the  presumption  in  favor  of  innocence.  If 
the  testimony  leaves  only  a  doubtful  question,  whether  he  was  insane  at 
the  time  of  the  killing,  the  presumption  of  the  law  turns  the  scale  in  fa- 
vor of  the  sanity  of  defendant.  In  such  case  the  law  holds  the  defend- 
ant responsible  for  his  acts.  If  the  evidence  leaves  it  doubtful  in  your 
minds,  whether  the  defendant  killed  the  deceased,  then  you  sliould  ac- 
quit; for  there  you  find  a  reasonable  ground  for  doubt,  whether  the 
defendant  committed  the  homicide  ;  and  in  such  case,  the  testimony  is 
not  sufficient  to  overturn  the  jnesumption  of  innocence.  But  where  it 
is  admitted,  or  clearly  proven,  that  the  defendant  committed  the  homi- 
cide, but  it  is  insisted  he  was  insane  at  the  time  he  did  it,  and  the  eii- 
dence  leaves  the  question  of  saniry  in  doubt,  then  you  should  find  him 
guilt}' ;  for  the  other  presumption  arises,  namely :  that  every  man  is 
presumed  to  be  sane  until  the  contrary  is  proven  ;  or,  in  otlier  words, 
where  evidence  of  sanity  on  one  side,  and  of  insanitj'  on  the  other, 
leaves  the  question  in  an  even  balance,  or  so  nearly  poised  that  you  have 
reasonable  doubt  of  the  insanity  of  the  defendant,  he  is  in  that  case  to 
be  considered  sane,  and  therefore  responsible  for  his  acts.  The  proof 
of  insanity  at  the  time  of  committing  the  homicide,  ought  to  be  as  clear 
and  satisfactory  in  order  to  acquit  on  the  ground  of  insanity,  as  the 
proof  of  committing  the  act  ought  to  be  to  find  a  sane  man  guilty." 

(Omitting  rulings  on  other  points. ) 

3d.  It  is  said  the  court  erred  in  requiring  the  defendant  to  submit  his 
hypothetical  case  to  the  medical  experts,  before  the  State's  rel)utting 
e\idence  on  this  question  of  insanity  was  given  to  the  jury.  The  court 
followed  the  usual  practice  of  requiring  the  defendant  to  adduce  all  his 
evidence  before  the  State  should  be  called  on  to  bring  its  rebutting  evi- 
dence. If  the  defendant  had  applied  to  the  court,  after  the  State  had 
finished  its  rebutting  proof,  to  examine  the  medical  experts,  with  the 
additional  evidence  of  the  State  before  the  jury,  and  the  aiiplication  had 
been  refused,  it  would  have  been  error.  But  no  such  application  was 
made,  nor  was  the  defendant  in  any  way  damaged,  as  the  State  intro- 
duced no  rebutting  evidence  which  made  it  necessary  to  re-examine  the 
medical  experts. 

(Omitting  another  irrelevant  ruling.) 

5th.  It  is  insisted  that  it  was  error  in  the  court  to  refuse  to  allow 
witnesses,  to  the  question  of  sanity,  to  express  an  opinion  as  to  sanity 
of  defendant,  after  having  stated  facts  upon  which  their  opinion  was 


508 


THE   BURDEN    OF   PKOOP   OF    INSANITY. 


Dove  V.  State. 


based.  This  question  arosd  in  the  case  of  Gibson  \.  Gibson  J  Upon 
examination  of  the  authorities,  which  were  not  found  very  satisfactory, 
the  court  laid  down  the  following  propositions :  "  First.  Attesting  wit- 
nesses, and  they  only,  are  trusted  to  give  tlicir  opinion  merely,  and 
without  cause  or  reason  asssigned,  of  testator's  sanity.  Second.  Physi- 
cians may  state  their  opinion  of  the  soundness  of  a  testator's  mind,  but 
they  must  state  the  circumstances  or  symptoms  from  which  they  draw 
their  conclusions.  As  *  all  others,  their  opinions,  considered  merely 
as  opinions,  are  not  evid*.  nee.  But  having  stated  the  appearance,  con- 
duct or  conversation  of  testator  or  otlier  particular  fact  from  which  his 
state  of  mind  may  be  inferred,  they  are  at  liberty  to  state  their  infer- 
ence, conclusion  or  opinion,  as  the  result  of  those  facts."  The  court 
adds:  "After  all,  it  is  the  facts  which  a  witness  details,  the  conduct 
which  he  describes,  which  chiefly  and  principally  constitute  the  testi- 
mony to  be  relied  on,"  This  question  was  again  fully  examined  in  the 
case  of  Norton  v.  Moore,^  where  the  same  rule  was  adopted.  The  rejec- 
tion of  the  opinions  of  the  witnesses,  based  upon  the  facts  and  circum- 
stances stated  by  them,  was  erroneous. 

6th.  It  is  insisted  that  the  judge  trenched  upon  the  province  of  the 
jury  in  charging  them  as  follows :  "  But  the  plea  of  insanity  is  put  in 
for  the  defendant.  He  admits  that  he  killed  the  deceased,  but  says  that 
his  mind  was  so  much  diseased  at  the  time  of  the  killing  that  he  was  in- 
capable of  committing  the  criine  of  murder,  he  being  insane."  The 
obvious  meaning  of  the  judge  was,  that  the  plea  or  defence  of  insanity 
was  put  in  for  the  defendant,  and  not  that  the  defendant  had  put  in  a 
formal  plea  of  insanity  to  the  indictment.  The  residue  of  the  statement 
was  evidently  intended  to  instruct  tlie  jury,  that  in  ri'lying  upon  the 
defence  of  insanity  tbe  killing  was  necessarily  admitted.  We  cannot 
well  see  how  the  jury  could  have  been  mislead,  or  how  they  could  have 
misunderstood  the  true  meaning  and  purport  of  this  language.  We, 
therefore,  think  this  assignment  of  error  is  nor  well  taken. 

7th.  The  last  and  most  imi)ortant  error  assigned  is,  as  to  that  portion 
of  the  charge  already  quoted,  in  which  the  judge,  among  other  things, 
said  :  "  The  jm)ot  of  insanity  must  be  as  clear  and  satisfactor3',  in  order 
to  acquit  on  the  ground  of  insanity,  as  the  proof  of  the  crime  ought  to 
be  to  find  a  H.-ine  man  guilty."  The  plain  and  unambiguous  meaning  of 
this  language  is,  that  the  defence  of  insanity  cannot  be  available,  unless 
it  is  proved  beyond  a  reasonable  doubt.  In  another  portion  of  the 
ciiarce,  the  judge  says :   •'  That,  if  the  evidence  of  sanity  and  of  insanity 


fe 


1  !)  Yerg.  329. 


"  3  Head,  480. 


BURDEN    OF   PROOF   ON    PROSSErUTION, 


500 


Dove  V.  State. 


>n. '  Upon 
itisfactory, 
;csting  wit- 
icrely,  and 
nd.  Physi- 

mind,  but 
they  draw 
red  mei-ely 
ance,  con- 

which  bis 
heU*  infer- 
The  court 
e  conduct 

the  testi- 
ncd  in  the 
rhe  rejec- 
d  circum- 

ice  of  the 

^  is  put  in 

says  that 

le  was  iii- 

."     Tlie 

insanity 

put  in  a 

itatement 

upon  the 

e  cannot 

uld  have 

We, 

t  portion 
r  tilings, 
in  order 
ought  to 
aningof 
J,  unless 
!i  of  the 
insanity 


be  on  an  even  balance,  or  so  nearly  an  equipoise  that  you  have  a  rea- 
sonable doubt  of  the  insanity  of  the  defendant,  he  is  in  that  case  to  be 
considered  sane,  and,  therefore,  responsible  for  his  acts."  It  is  con- 
ceded that  this  cause  is  sustained  by  English  cases,  and  by  cases  in  a 
few  of  the  States,  but  it  is  certain  that  it  is  in  contravention  of  a  large 
number  of  decisions  in  other  States  of  the  Union. 

We  have  had  no  case  in  our  own  State  where  the  exact  question  in- 
volved in  the  present  one  has  arisen ;  but  we  consider  the  principle 
which  must  govern  the  decision  as  having  been  laid  down  in  the  case  of 
C'^ffee,  Ridley  &  Short  v.  T/te  State,^  and  followed  ever  since  in  subse- 
quent cases.  These  cases  were  detennined  in  1832,  and  separate  opin- 
ions were  given  by  Judges  Catron,  Gkeen  and  Peck.  The  cases  had 
been  tried  before  Judges  Stuart  and  Kennedy,  of  whom  Judge  Catron 
said  :  "  They  are  gentlemen  of  decided  talents,  accurate  and  extensive 
information  on  the  criminal  law,  and  great  experience."  They  had 
charged  the  juries,  "  that  the  law  presumed  the  defendant  innocent,  and 
that  presumption  stood  until  the  fact  of  killing  was  clearly  made  out  by 
proof;  and  if  they  entertained  a  reasona})le  doub!  as  to  the  fact  of  kill- 
ing by  the  defendant,  they  should  acquit  him  ;  but  if  the  fact  of  killing 
by  the  defendant  be  proved,  the  law  presumed  hi'.u  guilty  of  murder, 
miless  the  proof  showed  clearly  and  satisfactorily  tie  offence  was  one  of 
less  magnitude ;  and,  therefore,  if  they  entertaiued  doubts  under  the 
testimony,  whether  the  act  amounted  to  murder  or  manslaughter,  they 
were  bound  to  find  defendant  guilty  of  murder,  as  it  lay  upon  the  de- 
fendant to  show  clearly  and  beyond  a  reasonable  doubt,  that  the  offence 
was  not  murder,  but  manslaughter,  unless  it  appeared  otherwise  in  the 
testimony  of  the  State."  Judge  Catron  said:  "The  defendant  is 
ohiu-gcd  with  tlie  fact  of  killing  and  the  intent  with  which  it  was  done, 
find  the  fact  and  the  intent,  must  concur  to  constitute  the  crime.  The 
fact  and  intent  are  charged  by  the  State,  and  must  be  proved  to  the 
conviction  of  the  jury.  But  suppose  they  are  not  convinced  that  it  is 
their  duty  to  find  the  defendant  not  guilty ;  that  is  what  is  meant  by  a 
reasonable  doubt." 

In  such  case  he  says:  "  If,  from  this  whole  body  of  evidence,  they 
are  convinced  of  the*  killing,  but  are  not  convinced  that  it  was  done 
with  maUce,  they  ought  not  to  find  the  defendant  guilty  of  murder." 
Judge  GuEEN  said:  "  There  is  no  reason  in  saying  that  a  jury  must  ac- 
quit upon  a  doubt  as  to  the  fact  of  killing,  and  yet  upon  a  stronger 
doubt  as  to  the  equally  important  fact  of  malice,  they  must  convict.    It 


!  3  Yerg.  283. 


510 


THE    BL'KDEN    OF   TUOOF   OF    INSANITY. 


Dove  V.  Statu. 


is  admitted  that  if  this  state  of  the  mind  (doubt)  exist  as  to  the  fact  of 
killing,  an  acquittal  must  follow.  But  not  so  as  it  relates  to  the  malice. 
And  why  ?  Because  we  are  told  there  is  a  legal  presumption  to  afford 
the  mind  a  resting-place.  In  answer  to  that  proposition,  it  has  already 
been  shown  that  this  legal  presumption,  which  Yf as  prima  facie  evidence 
of  the  fac*;,  has  been  opposed  by  evidence  so  weakening  its  force  as  no 
longer  to  be  satisfactory,  and  consequently  a  doubt  as  to  the  fact  thus 
presumed,  must  now  exist.  I  hold,  therefore,  that  to  warrant  a  verdict 
of  guilty  of  murder  —  the  whole  evidence  taken  together  —  must  gen- 
erate full  belief  of  the  guilt  of  the  party  as  consisting  in  the  killing 
with  malice.  Whether,  therefore,  the  doubt  exists  as  to  the  killing,  or 
as  to  the  evidence  of  malice  in  the  perpetrator,  it  results  in  the  same 
thing  — that  is,  a  doubt  whether  the  accused  be  guilty  of  the  crime  of 
murder."  Judge  Peck  concurred  in  the  reasoning  and  conclusions  of 
Judges  Catuon  and  Gheen.  The  charges  of  the  circuit  judges  were 
overruled,  and  from  that  time  to  the  present  the  law  has  been  settled  in 
our  State,  that,  if  the  proof  fails  to  generate  full  conviction  of  every 
material  ingredient  constituting  the  crime  of  murder,  the  defendant 
must  be  acquitted.  But  the  question  is  now  raised,  whether  this  prin- 
ciple of  law  is  applicable  to  a  case  where  there  is  reasonable  doubt  of 
the  sanity  of  the  defendant?  The  criminal  judge,  it  has  been  seen, 
adopts  the  same  doctrine  as  to  reasonable  doubt  in  the  matter  of  sanity 
that  Judges  Stewart  and  Kennedy  did  as  to  the  presumption  of  malice 
from  killing. 

Is  there  any  sound  reason  upon  which  it  can  be  held  that  a  doubt  as 
to  the  malice  in  the  killing  shall  operate  as  an  acquittal,  but  that  a 
doubt  as  to  the  sanity  of  the  defendant  at  the  time  of  the  killing  shall 
not  so  operate  ? 

"  If  any  person  of  sound  memory  and  discretion  unlawfully  kill  any 
reasonable  creature,  in  being,  and  under  the  peace  of  the  State,  with 
malice  aforethought,  either  express  or  implied,  such  person  shall  be 
guilty  of  murder."  '  We  have  adopted  the  defuiition  of  murder  given 
by  Sir  P^dward  Coke.  The  person,  to  be  guilty  of  murder,  must  be  of 
sound  memory  and  discretion;  "for,"  as  Blackstone  says,  "lunatics 
or  infants  are  incapable  of  committing  any  crimo^  unless  in  such  cases 
where  they  show  a  consciousness  of  doing  wrong,  and  of  course  a  dis- 
cretion or  discernment  between  good  and  evil." 

Assuming  that  this  interpretation  of  the  words  "sound  memory  and 
discretion  "  is  sufficiently  accurate,  it  may  ^te  safely  stated  that  no  per- 


1  Code,  4197. 


BURDEN   OF  PROOF   ON   PROSECUTION. 


511 


!  to  the  fact  of 
i  to  the  malice, 
tion  to  afford 
it  has  ah'oady 
facie  evidence 
its  force  as  no 
;o  the  fact  thus 
rrant  a  verdict 
r  —  must  gen- 
g  in  the  killing 
the  killing,  oi* 
Its  in  the  same 
f  the  crime  of 
conclusions  of 
it  judges  were 
been  settled  in 
iction  of  every 
the  defendant 
L'tiier  this  prin- 
able  doubt  of 
has  been  seen, 
itter  of  sanity 
tion  of  malice 


hat  a  doubt  as 
tal,  but  that  a 
killing  shall 

vfuUy  kill  any 
le  State,  with 
rson  shall  be 
murder  given 

,  must  be  of 
ys,  "  lunatics 
in  such  cases 

course  a  dis- 

memory  and 
that  no  per- 


Dove  V.  Stato. 


son  can  be  guilty  of  murder  who  has  not  snfllcient  discretion  or  discern- 
ment to  distinguish  between  good  and  evil,  and  who  has  no  consciousness 
of  doing  wrong.  The  law  presumes  every  person  to  have  this  sound 
memory  and  discretion.  Therefore,  when  the  defendant  was  put  upon 
his  trial  for  murder,  it  was  not  necessary  for  the  State  to  adduce  proof 
i)f  his  sanity.  The  presumption  of  law  stood  for  and  supplied  the 
proof. 

If  he  relied  on  the  defence  of  insanity,  the  burden  of  proof  was  upon 
him  to  show  that  he  was  not  of  sound  memory  and  discretion,  unless 
the  proof  of  the  State  showed  that  he  was  not  of  sound  memory  and 
discretion.     To  warrant  a  conviction,   it  must  appear  that  the  accused 
was  capable,  at  the  time  of  the  killing,  of  distinguishing  between  good 
and  evil,  and  had  a  consciousness  of   doing  wrong.     If  he  was  thus 
sane,  he  could  act  wilfully,  deliberately,  maliciously  and  premeditatedly. 
We  have  seen  that,  to  justify  a  conviction  for  murder  in  the  first  degree, 
the  State  must  show  beyond  a  reasonable  doubt  that  the  killing  was  done 
wilfully,  deliberately,  maliciously  and   premeditatedly.     All  those  are 
essential  ingredients  in  the  offence,  and  all  must  be  proved  beyond  rea- 
sonable doubt.     But  suppose  the  proof  in  the  cause  makes  it  an  even 
balance  in  the  minds  of  the  jury  whether  the  defendant  was  sane  or  in- 
sane?    How,  in  that  state  of  doubt,  could  the  jury  find  that  the  defend- 
ant did  the  killing  wilfully,  deliberately,  maUciously  and  premeditatedly? 
They  are  in  doubt  about  his  being  of  sound  memory  and  discretion.    Of 
course  they  must  doubt  whether  he  could  have  done  the  killing  wilfull}-, 
(leliberatedly,  maliciously  and  i)renieditatedly.     Yet,  in  the  case  before 
us,  the   judge  instructed  them  that  if  the  proof  left  their  minds  in 
equipoise  as  to  the  sanity  or  insanity  of  the  defendant,  the  presumption 
0.  law  turned  the  scale,  and  the  defendant  must  be  regarded  as  sane. 
The  presumption  of  sanity  stands  for  sufficient  proof  of  sanity  until 
the  pn  sumption  is  overturned.     When  the  proof  of  insanity  makes  an 
equipoise,  the  presumption  of  sanity  is  neutralized  —  it  is  overturned,  it 
ceases  to  weigh,  and  the  jury  are  in  reasonable  doubt.     How,  then,  can 
a  presumption,  which  has  been  neutralized  by  countervailing  proof,  be 
resorted  to  to  turn  the  scale?    The  absurdity  to  which  this  doctrine 
leads  will  be  more  obvious  by  supposing  that  the  jury  should  return  a 
special  verdict.     It  would  be  as  follows :  "  We  find  the  defendant  guilt}- 
of  the  killing  charged,  but  the  proof  leaves  our  minds  in  doubt  whether 
he  was  of  such  soundness  of  memory  and  discretion  as  to  have  done  the 
killing  wilfully,  deliberately,  maliciously  and  i)remeditatedly."     Upon 
such  !i  verdict  no  judge  could  pronounce  the  judgment  of  death  upon 
ihe  defendant. 


512 


THE    BURDEN    OF   PROOF   OF    1X8AMTY. 


Dovo  V.  Stutc. 


It  is  impossible  to  read  the  evidence  in  tliis  case  and  not  feel  sliocked 
by  the  enormity  and  atrocity  of  tlie  crime,  if  wc  assume  that  the  defend- 
ant was  of  sound  memory  and  discretion.  An  old,  quiet,  inoffensive 
man  is  brutally  cut  to  pieces  with  an  axe  while  he  is  sleeping  peacefully 
in  the  ro(Mn  with  the  defendant  and  his  family.  No  provocation  liiid 
been  given ;  there  was  entire  friendship  and  cordiality  between  tlieni 
when  they  retired  to  bed.  Yet  the  jury  found  that  the  murder  was 
attended  with  miti<i:ating  circumstauces,  and  the  defendant  was  sen- 
tenced to  hard  labor  for  life  in  the  penitentiary. 

We  have  searched  the  record  in  vain  for  any  semblance  of  a  single 
mitigating  circumstance.  We  are  forced  to  the  conclusion  that  the  jury 
doubted  whether  the  defendant  was  sane,  and  being  instructed  by  the 
court  that  such  doubt  would  not  justify  an  acquittal,  they  gave  the  de- 
fendant the  benetit  of  this  doubt,  as  a  mitigating  circumstance,  by  way 
of  saving  him  from  the  gallows.  It  has  been  earnestlj' and  alil^'  pressed 
upon  us  in  argument  that  the  doctrine  charged  by  the  criminal  judge 
ought  to  be  adopted  from  considerations  of  i)ublic  policy.  It  is  con- 
ceded that  the  doctrine  ought  not  to  be  carried  to  the  extent  of  sub- 
jecting defendant  to  capital  punishment,  about  the  soundness  of  whose 
memory  and  discretion  the  juries  may  have  doubts.  This,  it  is  admit- 
ted, would  be  too  shocking  to  humanity  to  be  tolerated.  But  it  is  in- 
sisted that  the  peace  of  society  and  tiie  prevention  of  the  repetition  of 
such  horrible  tiagedies  by  defendants  wiiose  sanity  is  doubtful  would 
justify  the  courts  in  holding  that  defendants  who  rely  upon  the  defence 
of  insanity  should  be  required  to  establish  their  defence  be3'ond  reason- 
able doubt ;  otherwise,  that  they  should  be  held  responsible  as  criminal, 
and  subjected  to  imprisonment  for  life. 

The  force  of  this  argument  is  much  strengthened  by  the  facts  proven 
as  to  the  violent  character  of  this  defendant.  To  turn  him  loose  might 
be  to  subject  some  other  innocent  victim  to  the  same  fate  with  Diggius. 
But  this  is  not  the  tribunal  to  which  the  consideration  of  public  policy 
can  be  appropriately  addressed.  ^  Our  business  is  to  administer  and  not 
to  make  the  law.  We  find  the  law  well  settled  that  when  the  State 
charges  a  citizen  with  crime,  his  guilt  must  be  established  beyond  rea- 
sonable doubt.  We  applj'  this  rule  to  the  worst  men,  about  whose  san- 
ity no  doubt  is  raised,  and  turn  them  loose  to  repeat  their  crimes,  because 
the}'  are  entitled  to  the  benefit  of  the  humane  doctrine  of  doubts.  With 
what  show  of  reason  or  humanity  could  we  reverse  the  rule  as  to  that 


1  The  argument  tluit  it  was  intended  to 
urge  was,  tliat  tlie  established  law  of  Eng- 
land lecoguizud  this  rule,  aud  that  policy 


forbaf" )  a  depnrture  from  it  —  not  that  a  new 
rule  should  be  adopted  upon  such  consider- 
ations now.  —  [REr. 


TllK  rilKSUMlTION  OF  SAMTV 


513 


Throe  Theories  us  to  the  Hiirdeii  of  Troof  of  Insanity. 


1  sliookod 
e  (lefeiid- 
loffensive 
)eiife  fully 
ation  h:iil 
cen  llieni 
irder  was 
was  soii- 

P  a  single 
t the  jiiiv 
d  by  tli(> 
e  the  (le- 
3,  l)y  way 
y  pressed 
lal  judge 
It  is  coii- 
it  of  sub- 
of  Mliose 
is  admit- 
t  it  is  in- 

tition  of 
ul  would 

defence 
d  reason - 
crimiuul, 

;s  proven 

Hc  might 

Diggiiis. 

c  policy 

and  not 

he  State 

ond  rea- 

ose  san- 

because 

.    With 

i  to  that 

;hat  a  new 
consider- 


mifortnnate  class  of  citizens  wlioso  memory  and  discretion  is  found  to 
lie  t)f  doubtful  soundness  and  subject  tlieni  to  imprisonment  f(jr  life? 
If  the*Iaw,  as  it  now  stands,  furnisijes  no  remedy  for  tlie  protection  of 
society  against  tlie  danger  of  turning  loose  liomieidal  maniacs,  it  is  lime 
that  the  Legislature  had  provided  a  remedy.  But  it  seems  to  us  that 
every  society  has  the  remedy  within  its  reach.  We  do  not  see  what 
ol)stacle  is  in  the  way  of  having  all  such  cases  tried  by  regular  proceed- 
ing to  ascertain  the  fact  of  insanity,  and  for  the  jjroper  disposal  of  its 
unfortunate  victims.^  But  section  l^)!')4  of  the  Code  provides  specially  that 
when  the  defence  of  present  insanity  is  urged  on  the  trial  of  a  person 
cliarged  with  a  crime  which  subjects  him  to  imprisonment  or  death,  it  is  the 
duty  of  the  judge  to  submit  the  question  of  sanity  to  the  jury  as  a  prelimi- 
nary question,  and  if  the  defendant  is  found  to  be  insane,  the  judge 
orders  him  to  the  lunatic  asylum.  The  facts  of  the  case  might  well 
have  induced  the  judge  to  follow  the  directions  of  this  section  of  the 
Code. 

Our  duty  is  discharged  in  declaring  that  the  defendant  has  been  con- 
victed and  sentenced  to  imprisonment  for  life  contrary  to  law. 

We  reverse  the  judgment,  and  remand  the  case  for  a  new  trial. 


NOTES. 

§  2'.) .  Presumption  of  Sanity.  —  A  person  is  presnmed  to  be  sane  until  the  con- 
trary is  shown.  Sanity  is  presumed  to  l)e  the  normal  state  of  the  human  mind,  and 
it  is  never  incumbent  upon  tlie  prosecution  to  fi;ive  aflirmative  evidence  thatsueh 
state  exists  in  a  particular  ca^e.  The  question,  upon  whom  Is  the  burden  of 
innof  when  insanity  is  interposed  as  a  defenee  in  a  criminal  trial  is  one  upon 
wliich  there  lias  been  a  great  amount  of  discussion,  and  much  difference  of  ()i)in- 
iou.  Three  different  theories  are  to  be  found  in  the  cases  on  this  point.  Tlie  llrst 
is  that  inasmuch  as  every  man  Is  presunuid  to  be  sane,  the  prisoner  must  over- 
come this  presumption  by  proving  his  insanity  beyond  a  reasonable  doubt.  The 
second  is  that  the  presumption  of  sanity  must  prevail  until  it  is  shown  to  be  false  to 
th(!  satisfaction  of  the  jury  by  a  preponderance  of  the  evidence.  The  third  is  that 
^\!u're  any  evidence  is  introduced  tending  to  cast  uncertainty  upon  the  sanity  of 
the  prisoner,  the  State  is  bound  to  prove  his  sanity,  like  all  other  elements  of  the 
crime,  beyond  a  reasonable  doubt. 

§29.  a.  Burden  on  Prisoner  —  First  Theory.— The  first  theory,  ,./..,  that  the 
prisoner  must  prove  his  insanity  beyond  a  reasonable  doubt,  was  laid  down  in 


'  Code,  1.553.  The  obstacle  Ues  in  the  fact 
that  the  defence  of  present  insanity  is  never 
|mt  in  when  the  fact  of  insanity  at  the  time 


of  the  offence  will  answer  the  purpose.— 

[UKP. 

-  People  r.  Kirby,  2  Park.  28  (182?.). 
3  Walter  v.  People,  32  N.  Y.  U7  (lf305). 


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23  WIST  MAIN  STRHT 

WEBSTER,  N.Y.  MS80 

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514 


THE   BURDKN    OF   PROOF   OF    INSANITY. 


Notes. 


early  cases  In  Alabama'  and  Missouri,'^  but  has  boon  since  overruled,'  and  pre- 
vails at  present  in  only  two  States,  Delaware'  and  New  Jersey.'  In  iState  v.  Ilen- 
Icy,^  in  cliarfiin;?  the  jury  the  jud^e  said:  "There  is  but  one  more  matter  which 
tlie  court  feels  (tailed  upon  to  notice  in  the  case,  and  that  was  the  concluding 
request  of  the  counsel  for  the  prisoner,  that  we  should  instruct  you  that  if  after 
a  mature  consideration  of  all  the  evidence  in  it,  you  shoidd  have  any  reasonai)ie 
doubt  on  this  last  point  as  to  the  mental  capacity  and  criminal  responsibility  of 
the  prisoner  for  the  act  in  (piestion,  you  should  ;;ive  him  the  benefit  of  sueli 
doubt  in  making  up  your  verdict.  Hut  the  court  does  not  consider  the  rule  of 
law  so  to  bo  in  relation  to  the  plea  or  defence  of  insanity  when  the  act  of  killing; 
is  conceded,  admitted,  or  positively  proved  by  the  evidence.  For  every  sucli 
homicide  is  presumed  in  law  to  i)e  murder  until  the  contrary  appears,  and  every 
person  is  presumed  to  be  of  sound  ndnd  until  the  reverse  is  shown,  and  as  in- 
filty  must  be  shown  by  the  party  who  alleges  or  sets  it  up  as  a  defence,  it  is 
\'i'  iiibent  and  ol)ligatory  on  him  to  establish  it  as  a  fact  in  the  case  to  the  sat- 
is.*;-. :  ion  of  the  jury.  The  rule  alluded  to,  as  we  understand  it,  has  relation 
folely  to  the  corpun  delicti,  or  to  the  act  of  killing  in  the  case  siini)ly,  and  if  the 
^\  y  ih  any  case  of  homicide,  after  maturely  considering  and  weighing  all  the 
C'vider.ce  for  and  against  the  accused,  entertain  any  reasouable  doubt  as  to  that 
fact,  it  is  their  duty  to  give  him  the  beuefit  of  it." 

§  2'.t.  h.  Burden  on  Prisoner  —  Second  Theory.— Tho  .second  theory,  viz.:  that 
the  presumi)tion  of  .sanity  prevails  until  it  is  overcome  by  a  preponderance  of 
evidence  sliowing  the  prisoner's  insanity  to  the  satisfaction  of  tlie  jury  is  the  ruk 
in  the  following  States : — 

§  30.  Alabama.^ 

§  31 .  Arkansas.** 

§  32.  Oalifomia.  —  The  burden  is  on  the  prisoner  to  prove  insanity,  l)ut  it  may 
be  establisheil  by  a  preponderance  of  tlie  evidence."  In  People  v.  Myers '"  it  was 
said:  "As  the  burden  of  proving  the  existence  of  insanity  rests  upon  the  ac- 
cused, it  follows  that  this  fact  must  be  satisfactorily  established,  iiud  that  Is  by  a 
preponderance  of  |)roof.  The  fact  is  not  ])roved  I)y  raising  ii  doubt  whether  it 
exists  or  not."    lu  People  v.  Messersmith,^^  the  court  read  to  the  jury  extracts  from 


'  stale  r.  Brinyea,  .">  Aln.  241. 

^  iistate  t'.  Iluting,  21  Mo.  iHi. 

3  Sec  cases,  p.  fil8,  post. 

<  State  «•.  Danby,  1  Houst.  Cr.  Cas.  160 
{\SiU);  State  r.  West,!  Houst.  Cr.  Cas.  371 
(1873). 

»  State  V.  Spencer,  21  X.  J.  (L.)  196  (1846). 
But  New  Jersey  is  probably  ready  to  aban- 
don this  rule.  In  State  r.  Martin,  3  ('rim. 
L.  Mag.  44,  tried  in  New  .Jersey  in  1881,  IJe- 
pue,  J.  charged  the  Jury  tliat  "  when  an  ac- 
cused sets  up  the  defence  of  insanitj,  tli3 
burden  of  proof  is  U|i(in  him;  and  to  make 
effectual  such  a  defence,  the  proof  of  tlie 
prisoner's  insanity  ou^bt  to  l)o  latisfactory. 
Ue   must  ovcrcunie  the  legal  prcsuniptiou 


of  insanity  by  a  dear  preponderance  of 
proof." 

•  1  If  oust.  Cr.  Cas.  28  (1873). 

'  State  1'.  Hrinyea,  .">  Ala.  211  (1843) ;  State 
V.  Marler,  2  Ala.  43  (36  Am.  Dec.  3!)S)  (IWl) ; 
ISoawell  r.  State,  63  Ala.  307  (1S7'.») ;  McAllis- 
ter r.  State,  17  Ala.  434;  seeywM',  p.  874. 

"  McKenzio  v.  State,  26  Ark.  334  (1870). 

"  I'ooplc  V.  Wilson,  41)  Cal.  13  (1874) ;  Peo- 
ple r.  McDonnell,  47  Cal.  131  (1873);  Teople 
r.  Coffmnn,  24  C.il.  2.10  (1864);  People  v. 
Myers,  20  Cal.  SIS  (1S«>2). 

'"  20  Cal.  .MS  (1862). 

"1  57  (;al.  575  (1881),  citing  People  v.  Myers, 
20  Cal.  518. 


lU'UDEN    OF   PROOF   r>  ,    i'lMXOXEK. 


515 


Tlic-  Hi.   •  ill  Culifc.riila. 


iderancc  of 


Kiiglish  cases  holdiiii;  that  insanity  mnst  bo  proved  licyond  a  roasonalilo  donbt,  and 
also  a  decision  of  tlio  Siiprenie  Court  of  tlie  State  to  tlie  effect  tliat  it  is  siilllcieiit  If 
insanity  be  proved  l)y  a  preponderance  of  evidence.  On  appeal  it  was  lield  tliut  tin; 
( liarf^c  was  contra(iictory  and  erroneous,  and  tlio  verdict  was  set  aside.  In  Pcd- 
I  le.  v.  Bdl,^  Wai.lack,  C.  J.,  said:  "  Insanity,  wlieii  relied  upon  as  a  defenci!  in  a 
criiuinal  case,  is  to  be  established  l)y  tlie  prisoiuT  by  preponderating  proof.  It 
is  an  issue  upon  which  lie  ;.,)ltis  the  aflirniative,  and  before  it  can  l)e  availed  of, 
lie  is  bound  to  establish  not  only  tlie  fact  of  insanity,  but  insanity  of  the  charac- 
ter, i.e.,  arising  from  such  a  cause  as  in  point  of  law  amounts  to  a  defence.  If 
therefore,  as  here,  there  be  a  question  as  to  whether  tlu;  supposed  insanity  was 
the  result  of  intoxication  Immediately  inilulged  or  insanity  caused  by  a  habitual 
un<l  long  continued  intemperate  use  of  ardent  spirits,  the  burden  is  cjist  upon 
tlie  prisoner  of  establis'.iing  it  to  be  of  the  latter  character."  In  People  v. 
HVcrfen,"  decided  in  California  in  ISSI,  the  judge  had  charged  the  jury 
that  the  defence  of  insanity  must  be  "clearly  estal)lished  by  satisfactory 
proof."  The  Supreme  Court  held  that  this  was  equivalent  to  "  established  by 
satisfactory  proof  beyond  a  reasoiiatile  doulit,"  and  was  erroneous.  "  In  a  late 
case, "3  said  Siiaiu'stkin,  .7.,  "  it  was  lield  to  l)e  well  settled  in  this  State  that 
insanity,  in  order  to  constitute  a  defence  in  acriininal  action,  need  not  be  proved 
licyond  a  reasonable  donbt,  but  that  it  might  be  established  by  mere  prepoiuUr- 
ating  evidence.  Is  not  the  expression  '  clearly  established  by  satisfactory  proof ' 
the  full  equivalent  of  '  <'stablished  by  satisfactory  proof  lieyond  a  reasonable 
(loubtV  How  can  a  fact  lie  said  to  be  clearly  (■(tablished  so  long  as  there  is 
reasonable  doubt  whether  it  is  tstablishe<l  at  all?  There  can  be  no  reasonable 
doubt  of  a  fact,  after  it  has  been  clearly  established  by  satisfactory  proof, 
'(.'learly,'  according  to  Webster's  detlnitionof  it,  means  in  a  clear  manner,  with- 
Dut  ol)scurity,  without  oi)struction,  without  entangleiiieiit  or  confusion,  without 
uncertainty,  etc.,  and  that  is  doubtless  the  sense  in  which  it  is  poinihirly  under- 
slood.  The  dellnition  of  a  reasonable  doubt  given  by  C.  J.  Shaw,  which  has 
iioen  generally  approved  by  the  courts,  is  as  follows:  '  It  is  that  state  of  the  case 
wliich,  after  the  entire  comparison  and  consideration  of  all  evidence,  leaves  the 
iiiinils  of  the  jurors  in  that  condition  that  they  cannot  say  they  feel  an  abiding 
conviction  to  a  moral  certainty  of  the  truth  of  tlie  charge,  ♦  •  *  a  certainty 
tliat  convinces  and  directs  the  understanding  and  satistles  the  reason  and  judg- 
ment of  those  who  are  l)ound  to  act  conscientiously  upon  it.'  ♦  A  juror  would 
iiave  no  excuse  for  saying  he  did  not  •  feel  an  abiding  conviction  to  a  moral  cer- 
tiinty'  of  the  truth  of  a  fact  which  had  I'cen  'clearly  established  l)y  satisfactory 
proof.'  Such  proof,  if  any  could,  would  convince  and  direct  the  understanding 
and  .satisfy  the  I'cason  and  judgment  of  a  conscientious  juror.  Under  the  in- 
structions given  it  was  the  duty  of  the  juror  to  require  that  the  defence  of  in- 
sanity should  be  proved  beyond  a  reasonable  doubt.  This  was  error."  But  an 
instruction  that  where  a  person's  defence  is  insanity,  this  must '*  bo  satisfac- 
torily established,  and  that  by  a  preponderance  of  evidence"  is  correct.  "  In 
other  words  "  said  tlie  court  '<  insanity,  like  any  oti.er  afflnnative  defence  relied 
ou  by  a  defendant  in  a  criminal  case,  must  be  proven  to  the  satisfaction  of  tlie 


>  4itCal.48.'i  (1875). 
ifiucal.  ;ui  (1881). 


»  People  r.  Wilson,  4!)  C.il.  13. 
*  Com.  V.  Webster,  5  Cusb.  320. 


5i(; 


THE    BURDEN    OF   PROOF   OF   INSANITY. 


Notes. 


jury.  It  is  a  fact;  and  a  fact  proven  by  a  preponderance  of  evifloncc  Is  a  fact 
'  satisfactorily  established.'  As  an  expre.ssion,  a  preponderance  of  evidence  i~ 
llio  c<|uivalent  of  satisfactory  proof.  Wliile,  tlierefore,  tlie  Instruction  umlcr 
consideration  may  be  faulty  in  pliraseology,  it  is,  as  a  legal  proposition,  substaa- 
(ially  correct." 

§  .1.*?.  Connecticut.—  In  this  State  the  burden  of  proof  is  on  the  defendant;- 
and  the  jury  mu.st  be  satislied  tliat  the  i)risoner  was  of  sound  mind.'' 

§  M.  Georgia. —  The  same  rule  prevails  in  Georgia.*  In  Tlolsenbakev.  Stnte,-nhv 
court  said :  "  Prima  facie,  all  |)ersons  are  to  be  considered  sane,  and  this  is  tru'' 
in  criminal  as  well  as  civil  trials.  If  this  be  the  legal  presumption,  it  would  seem 
to  follow  tliat  unless  tlie  jury  are  .satislied  of  insanity  they  must  consider  tin 
prisoner  sane.  Periiaps  the  word  aatisfud  is  ratlier  strong,  and  were  there  any 
evidence  here  of  ins.anity,  we  might  hesitate  to  sustain  the  judge.  IJut  tlnn 
.seems  to  have  l)een  no  .sucli  evidence."  In  Westmoreland  v.  Utate,''  it  was  niauv 
a  ground  of  error  ou  appeal  that  tlie  trial  court  refu.sed  to  charge  the  jury  tliai 
if  tiny  had  a  reasonable  d()ul)t  of  the  prisoner's  sanity  they  sliould  ac(Hill,  but 
did  charge  them  tliat  llie  law  presumed  sanity  until  the  contrary  is  made  to  ap- 
pear, and  that  the  burden  of  proof  on  this  point  is  on  the  defendant,  and  tiiat  "  it 
onglit  to  bo  made  to  appe.ir  to  a  reasonable  certainty,  to  your  reasonable  satis- 
fiction,  tliat  at  the  time  of  tlie  commission  of  tlie  act,  he  did  not  know  the  natui«' 
or  <iiiality  of  the  act,  or  if  he  did,  did  not  know  tliat  the  act  was  wrouii."  (hi 
appeal  tliis  instruction  was  alllriiied  principally  on  the  ground  that  the  judge  h.nl 
afterwards  charged  the  jury  tliat  "  if  after  a  careful  survey  of  all  the  testimonu 
you  have  a  reasonable  doubt  of  tlie  defendant's  guilt,  you  willac(iuit  him."  I'm 
this  latter  charge  the  Siijireme  Court  tliought  was  tantamount  to  telling  the  jury 
that  if  they  had  a  reasonable  doubt  of  the  prisoner's  sanity  they  should  acipul. 

§  .'55.  Iowa.  —  111  Iowa  the  same  rule  is  established.'  In  State  v.  Bruce,"  an  in- 
struction that  while  sanity  was  presumed,  to  warrant  an  ac(iuittal  on  the  grouiui 


1  People  t'.  Messer.'^milh.lil  Cal.  347  (IS8-2.) 
«  St.ile  V.  Hoyt,  M',  Conn.  liiiO  (1878).  "  The 
accuserl  introiliiced  a  witness,  an  expert 
upon  the  point  of  insanity,  and  the  court  per- 
mitted an  expert  to  testify  upon  tlie  haino 
subject  in  behalf  of  the  .State,  by  way  of  re- 
buttal. The  aciMiscd  com|>luins  of  this,  and 
mges  that  the  .state  should  have  introiluced 
this  cvidunco  in  chief.  The  coin|)luint  is 
without  foundation.  The  law  presumes 
every  person  of  mature  years  to  be  of  sound 
mind,  and  competent  to  commit  crime.  If 
the  defence  be  insanity,  it  is  to  be  proved 
finbstantially  aBanindepende'ntfact,andthe 
burden  of  ])roof  is  on  tho  accused.  I'pon 
this  issue  he  ^ocs  forward  and  the  State  re- 
buts." Id.  "  Tlie  accused  having  introduce.! 
evidence  lending  to  show  that  he  was  ol 
unsound  mind  when  he  committed  the  hoin 
iride,  the  court  permitted  the  State  in  rebut 
tal   to   oirer    cviiJuiue    ti>   pruvu    that   the 


defendant  was  of  sound  mind  at  the  lime  in 
•luestion.    To  this  the  accused  objected,  nn 
tho  ground  that  the  burden  rested  on  liio 
.stiito  to  prove  that  tho  defendant  was  of 
sound  mind  when  lie  committed  the  h<>ini 
cidc,  and  that  tlic  testimony  should  li.ivi' 
been  otfcred  in  cliief.    This  precise  point « :i> 
made  by  the  accused  when  his  case  was  pre 
viou^^ly  before  this  court,  and  was  decido'l 
adversely  to  his  claim.    This  ought  to  li'' 
satisfactory,  especially  when  all  the  aiillnM- 
ities  accord  with  that  decision."    t;luiu  i- 
Iloyt,  47Conn.  .5I8(1SS0). 

'  State  r.  Johnson,  40  Conn.  136  (187.'?.) 
<  Humphreys  r.  .'<tate,  45  Ga.  190  (1872); 
Anderson  e.  State,  42  Oa.  9  (1871). 

•  4.'>G.a.  55  (1872). 

'  45  IjIii.  225  (1872);  see  post,  p.  874. 

•  State  V.  Fclter,  32  Iowa,  49  (1871) ;    .State 
r.  Urin-e,  4S  Iowa,  .V'.O  (1878). 

-  4>  Iowa,  .').!0  (1878) ;  gee  post,  p.  878. 


loncc  Is  ii  f;i(  t 
if  evkleiUM;  is 
■uctioii  under 
.iun,  substiiii- 


e  defendant.;- 


ev.  State,-' Uu 
udtliisis  true 

it  would  MH  III 

L  consider  IIk 
ere  there  aiiv 
e.     IJut  there 

'  it   was  UKuie 

the  jury  that 
Id  aci|Uit,  lull 
i  made  to  ap- 
,  and  that  "  ii 
iouable  satis- 
uwthe  nature 
wrouii."  (hi 
Lhe  ju(ij;eli.iii 
U!  testimoiiv, 
thiin."  For 
lling  the  jiirv 
uld  ac(iuit. 

Uruce,"  an  iii- 
u  tlie  ground 

at  the  (irnc  in 

U  objected,  on 

rested  on  llie 

ndiint  was  of 

ted  the  hmnj 

should  liavo 

cise  point  wa.-- 

case  was  pre 

Wii8  deciiU'il 

ought  to  li'' 

ill  the  auUi'ir- 

on."    Stuie  r. 

136(1873.) 
ia.  190  (W?.'); 

n). 

\>.  874. 
(1871);    Stdtc 

,  p.  HIH. 


BLKDKN    OF    TUOOF   <)\    I'UISONKK. 


517 


Rule  in  Kentucky,  Louisiana,  Maine  and  Massachusetts. 


of  insanity,  it  wassufllcicnt  if  the  jury  on  all  tiie  evidence  was  reasonably  satisfied 
that  the  prisoner  was  insane;  that  if  the  weight  or  preponderance  of  tlie  evidence 
-hows  his  insanity,  it  raises  ii  reasonable  doubt  of  his  guilt,  was  approved  on  ap- 
peal, tlie  court  citing  the  earlier  cases  of  State  v.  Felter  and  State  v.  Meicncrter. 

§  3(i.  Kentucky. —  In  this  State  the  burden  of  proof  is  on  the  accused.  There 
must  be  more  tiian  a  mere  doubt  raised  as  to  tlie  prisoner's  sanity.  Tlie  pre- 
sumption of  sanity  must  be  overcome  by  a  preponderance  of  proof  in  tlie  pris- 
oner's favor.' 

§  :57.  Loviisiana. —  In  Louisiana  the  insanity  must  be  clearly  shown  to  the  sat- 
isfaction of  tlie  jury  to  have  existed  at  tht;  time  <»f  the  commission  of  the  act.- 
Tlie  burden  of  proof,  where  temporary  insanity  is  alleged,  is  on  tiie  accused,  aud 
the  insanity  must  be  proved  beyond  a  reasoiuible  doubt.' 

§  ?iS.  Maine.  —  In  this  State  the  burden  rests  on  the  prisoner  to  establish  hi.>* 
insanity  by  a  preponderance  of  the  eviilence.' 

§  30.  Massachusetts.  —  Here  the  presumption  of  sanity  exists  until  overcom*? 
by  a  preponderance  of  the  whole  evidence.*  In  C'uiHnwnioeuUh\'.Eddii,'''tr'u:d  in 
.Massachusetts  in  ISjft,  Winslow  Eddy  was  indicted  for  the  murder  of  his  wife, 
riie  trial  took  place  before  Justices  Mktcai.f,  IJi(ii;i-ow,  and  MintuicK.  After  the 
prisoner  had  put  in  all  his  evidence,  including  testimony  as  to  his  insanity  at  the 
time  of  committing  the  act,  the  attorney-general  offered  evidence  tending  to 
j)rove  his  sairty,  to  which  the  defence  objected,  but  the  court  ruleil  that  this  was 
ilie  proper  stage  at  which  to  offer  this  evidence,  as  the  presumption  of  law  that 
every  person  is  sane  stood  until  rebutted.  Mktc.vi.k,  J.,  then  instructed  the  jury 
as  follows:  "The  burden  is  on  the  Commonwealth  to  prove  all  that  is  necessary 
to  constitute  the  crime  of  murder.  And  as  that  crime  can  be  committed  only  by 
a  reasonable  being  —  a  person  of  sane  mind  —  the  burden  is  on  the  Common- 
wealth to  prove  that  the  defendant  was  of  .sane  mind  when  he  committed  the  act 
of  killing.  But  it  is  a  presumption  of  law  that  all  men  are  of  sane  mind;  and 
that  presumption  sustains  the  burden  of  proof,  unless  it  is  rebutted  or  overcome 
by  .satisfactory  evidence  to  the  contrary.  In  order  to  overcome  the  presuinp- 
lion  of  law  and  sliield  the  defendant  from  legal  responsibility,  the  burden 
is  on  him  to  prove  to  tiie  .satisfaction  of  the  jury,  by  a  prepon<lcrance  of  the 
wliole  evidence  in  the  case,  that  at  the  time  of  committing  the  homicide,  he  was 
not  of  sane  mind.  This  is  not  only  required  l)y  the  general  rule  of  law,  but  is 
distinctly  Implied  in  tlie  provisions  of  the  Revised  Statutes,'  that  'when  any 
person  indicted  for  an  offence  shall,  on  trial,  be  ac<iuilted  by  the  jury  by  reason 
of  insanity,  the  jury,  in  giving  their  verdict  of  uot  guilty  shall  state  that  it  was 
iriven  for  such  cause.'  The  same  legal  doctrine  may  be  stated  in  another  fornix 
of  words.    The  law  infers  from  the  fact  that  a  i)risoner  is  a  human  being  of 


'  Kriclr.  Com.,6Bn9h,362(lS()9);  Graham 
f.  (,'oin.,  16  n.  Mon.  587  (ISS.")) ;  Brown  v.  Coin., 
14  Bush,  31)8  (187S);  Smith  r.  Com.,  1  Uuv. 
■iU. 

■  State  V.  Coleman,  27  La.  An.  691  (1875). 

^  Stuto  V.  Do  Uance  (La.),  14  Reporter, 208. 


*  State  t'.  Lawrence,  57  Me.  574  (1870). 

■'■  Coin.  r.  Kddy,7Uray,583;Com.  r.  Heathy 
11  tiray,  30:5;  Com.  v.  Kogers,  7  Mete.  500 
(1844.) 

e  7  Oray,  583  (IKSe.) 

'  Ch.  137,  sect.  12. 


518 


THE    BrjRDP:X    OF   rilOOF   OF    INSAMTV 


Notes. 


stifllclcnt  1120  to  1)0  (lopmod  capable  of  coinnilttlnsr  rriinos,  the  further  fact  thai 
ho  is  a  nasonahlo  boiiij;,  tliat  is,  tliat  lio  is  of  sauu  iiiiiuJ.  And  proof  of  tin- 
foriiicr  fai-t  is  sudlciont  of  tlio  latter,  until  tho  hitter  is  disproved  by  tho  prepoii- 
ilorauco  of  evidence.     And  the  liurdeu  of  thus  disprovini;  it  Is  on  the  prisoner. " 

§40.  Minnesota.  —  In  this  State  the  burden  <f  proof  is  on  the  prisoner  fo 
show  insanity  to  tho  satisfaetlon  of  tlie  jury.'  Jn  Stale  v.  Grejr-  tlie  jury  \vc  ic 
Instructed  that  whoro  irre.si)()nsil)le  drunkenness  is  relied  on  as  u  defence,  tlie 
burden  of  provin<j  .such  drunkenness  is  ou  the  defendant,  and  ho  must  establish 
It  l>y  11  fair  preponderance  ot  evidence.  "  The  expression,  fair  preponderance 
of  evidence,"  .said  tlio  court,  "  is  uiiol)joctional)le.  It  means  no  more  tlian  '  .at 
tho  evidenco  spoken  of  nuist  fairly  preponder.ite,  that  i<  it  must  preponderate 
so  that  the  preponderance  can  be  perceived  upon  fair  consideration  of  the  evi- 
dence." 

§  41.  Missouri.  —  In  Missouri  it  is  now  settled  that  to  entitle  a  person  to  an 
ac(|uittal  on  tho  ground  of  insanity,  sucli  insanity  must  be  proved  to  the  reas- 
onable satisfaction  of  the  jury.' 

§42.  North  Carolina.  —  In  North  v.arolina  tho  jury  niu.st  bo  "  .satisfied  "  of 
the  prisoner's  insanity,*  and  as  insanity  must  be  estal)lished  to  their  satLsfaction, 
it  is  error  of  which  llio  prisoner  cannot  complain,  to  cliarjie  the  jury  that  the 
hurdi-n  is  upon  the  prisoner  to  prove  iusanity  i)y  a  preponderance  of  tho  evl- 
dence.» 

§  i'^.  Ohio.  —  Tho  siiine  rule  prevails  in  Oliio.'"'  In  Bond  v.  State  it  was  said: 
"  The  coun.sel  for  the  defendant  re(|nested  the  court  to  instruct  the  jury  that  if 
they  cutertained  a  reasonable  doubt  as  to  the  .sanity  of  the  defendant  they  should 
acquit.  This  instruction  the  court  refused  to  give,  and,  ou  the  contrary,  in- 
structed tho  jury  that  in  order  to  an  accpiittal  ou  tliat  ground  it  was  incumbent 
on  tho  defendant  to  prove  the  fact  of  insanity  by  a  preponderance  of  evidence. 
In  this,  wo  think,  the  court  was  right  and  the  ci)unsel  wrong."  '  In  Beryin  \ . 
Stale,'^  the  Supreme  Court  say  :  "  The  court  ])elow  charged  the  jury  as  follows: 
•  To  defeat  the  legal  presumption  of  .sanity  wliieli  mei'ts  tho  defence  of  In.sanlty 
at  tho  threshold,  the  burden  of  establishing  mental  alienation  of  the  accu.sed  af- 
firmatively rests  ui)on  the  accused.'  The  counsel  for  the  motion  admits  that  this 
Is  held  to  be  the  l;iw  in  Ohio,  but  ably  argues  that  It  is  n  >t  good  law.     If  the 


'  Ronfnnti  f.  State,  2  Minn.  133  (185S); 
Suter.  Gut,  13  Minn.  ;U1  (1808.) 

^2!)  Minn.  221  (1SS2.) 

I  State  V.  Krb,  74  Mo.  IW  (1S81) ;  State  v. 
Kedoineier,  71  Mo.  173  (1879) ;  .state  t'.  Itaber, 
74  Mo.  21)2  (1881) ;  .state  r.  McCoy,  34  Mo.  .^il 
(1801).  IJut  see  State  r.  lluling,  21  Mo.  4t>4 
(1.S.55),  where  it  was  said:  "The  defendant's 
counsel  contend  that  the  court  should  have 
told  the  Jury  that  if  they  had  a  reasonable 
doubt  of  the  insanity  being  made  out  l^y  tlie 
|iroof  in  tho  ca.so  they  ouglit  to  Had  for 
tlie  prisoner.  This  ia  carrying  the  doctrine 
loo  far.  In«anity  may  be  maile  out  by  cir- 
cumstantial proof;  it  docs  not  re<iu:re  posi- 


tive proof;  but  the  jury  must  believe  from 
the  evidence  at  least  that  it  exisLs.  If  tli<' 
Jurj'  have  a  reasonable  doubt  of  the  guilt  of 
the  defendant,  they  are  to  ac(|uit.  If  the 
State  makes  out  but  a  doubtful  case,  the 
jury  will  acquit.  lUit  this  doctrine  of  doulit 
has  not  been  carrieil  to  the  extent  that  if  tlio 
defendant  makes  out  but  a  doubtful  defcctf, 
they  must  acquit."    p.  464  (185.5) 

*  State  V.  Payne,  86  N.  C.  OOi)  (IS82) ;  State 
V.  Starling,  6  Jones  (L.)  3CG  (18.51)). 

6  State  f.  Payne,  86  N.  C.  601)  (1882). 

•  Loeffneri'.  State,  10  Ohio  St.  598  (1857). 

7  Rond  r.  State,  23  Ohio  St.  34U  (1S72). 

8  31  Ohio  St.  Ill  (1876). 


her  fact  that 
proof  of  llic 
the  propoii- 
e  prisoucr." 

'  prisoner  to 
lie  jury  were 
defence,  tlic 
isL  cstal)li.sli 
•poiuh'rancc 
ire  tlian  '  .at 
repoiidcratc 
u  of  the  evi- 


)crscn  to  an 
to  the  reas- 


[itisned  "  of 

satisfaction, 

ury  tiiat  the 

of  tlie  evi- 


t  was  said : 
jury  tliat  if 
tiicy  should 
)nlrary,  in- 
ineundx'iit 
f  evidence. 
n  licrtjin  v. 
as  follows: 
of  insanity 
accused  af- 
ts  that  tills 
iw.     If  the 

Ijclieve  from 
i»ts.  If  Ihi- 
the  guilt  (if 
liiit.  If  llic 
il  case,  tlie 
inc  of  (l(iiili( 
It  that  if  llio 
fuldefc,<ce, 
) 

1S82) ;  Stale 
'). 

1882). 
WS  (1857). 
(1S72). 


BURDEN    or   PROOF   ON    TRISOXER. 


519 


Kiile  in  Ohio. 


question  was  an  open  one  a  majority  of  the  court  would  l)e  in  favor  of  tlie  rule 
as  it  stands,  and  inasmuch  as  tiie  nde  has  l)een  so  lonu:  estal)lislied  and  so  re- 
peatedly recoiridzed  in  this  State,  as  shown  l)y  tlie  cases  below  cited,  tlie  court 
is  nnaninious  in  tlie  opinion  tliat  it  sliould  not  be  clian^ed  hy  judicial  action." 
IiiFrtrmrv.  Stnte,^  decided  in  Oliio  in  IHtui,  it  is  .said  on  tliis  point:  "Tlie court 
luiowchariied  the  jury  that  when  tlie  plea  of  insanity  is  set  up,  tlie  defence  must 
be  estabii.^hed  by  a  prepondeniiice  of  testimony  —  tliat  the  insanity  must  lie  af- 
lirinatively  proved.  JJut  taliinii  tlie  wliole  charj^e  together,  I  do  not  tliink  tlie 
Miise  of  tliese  words  is  so  extensive  as  counsel  appear  to  construe  it.  Tlie  court 
ciiaracterized  the  old  rule  re(|uiriii.ii  insanity  to  be  jiroved  beyond  all  reasonable 
doubt,  as  ti  doctrine  wliich,  though  useful  in  its  time,  is  loo  hard  to  uphold,  and 
I  cannot  see  that  a  rea.sonable  doubt  of  a  prisoner's  sjinity  can  legally  arise  ex- 
<(l)t  upon  a  pre|)onderance  of  testimony.  A  mere  preponderance  of  testimony 
as  to  tlie  jiuilt  of  a  person  will  not  satisfy  the  law;  there  must  be  sueii  a  pre- 
lioiiderance  as  removes  all  reasonable  doubt,  lint  as  we  understand  the  court 
1  (low,  a  mere  iirepondenince  of  testimony  in  favor  of  insanity  may  raise  a  rea- 
sonable doubt  of  fjiiilt,  thoutih  such  jireponderance  may  not  prove  in.sanity  be- 
yond a  reasonable  doubt.  I  think  this  tlie  true  sense  of  what  was  charjied  in 
tills  case;  and  1  do  not  discover  any  reason  for  setting  asiile  the  verdict  so  far 
as  tills  particular  instruction  is  concerned.  Secontlly.  As  to  the  dejjree  of  proof. 
Nothini?  ca.i  l)e  better  settled  than  that  insanity  must  be  clearly  proved.  If  the 
testimony  only  raises  a  reasonable;  doubt  of  sanity  tlie  defence  fails.  But  what 
is  '  clear  i>»'oof  ?  '  According  to  Chief  Justice  lIouNni.ovvKit,  in  Spencer's  Case, 
il  is  jiroof  tliat  leaves  no  reasonable  doulit  of  in.sanity;  in  otlier  words,  insanity 
(•;iii  lie  said  to  be  clearly  proved  only  when  it  Is  proved  beyond  a  reasonable 
doubt.  When,  said  the  Chief  Justice,  tlic  question  is,  did  tlie  accused  commit 
the  homicide,  the  law  presumes  him  innocent  until  its  commission  byliim  is 
sliuwn  beyond  a  rea.sonable  doubt;  but  wlien  the  <iuestion  is,  was  he  sane  when 
iu!  committed  it  ?  the  law  presumes  liim  sane  until  the  contrary  is  in  like  man- 
ner establislied.  And  again:  '  Tlie  proof  of  in.sanity  at  the  time  of  committing 
tiie  act  ought  to  be  as  clear  and  satisfactory,  in  order  to  acipiit  him  on  the 
Lrround  of  insanity,  as  the  proof  of  cominittiiig  the  act  ought  to  be,  in  order  to 
Ihid  a  sane  man  guilty.'  This  detlnition  of  tlie  term  '  clearly  proved,' has  been 
(|iiestioned,  and  it  .seems  to  me  justly.  '  Clearly  proved  '  a'",!  '  jiroved  bej-ond 
a  reasonable  doubt '  have  not,  I  think,  been  genenilly  considered  .as  convertible 
terms.  The  latter,  if  I  am  not  mistaken,  has  usually  been  held  to  imply  a  higher 
degree  of  certainty  tlian  the  former.  If  tlieprei)onderanceof  testimony  is  clearly 
on  the  side  of  insanity,  tlie  fact  ought,  in  my  judgment,  to  be  considered  as 
clearly  jiroved,  although  there  is  a  reasonable  doubt  of  its  existence.  No  act  is 
a  crime  unless  perpetrated  by  an  accountable  being,  and  if  we  were  to  apply  the 
same  rule  to  the  question  of  sanity  thtvt  we  do  to  all  otlier  facts  neces.sary  to  con- 
stitute a  crime,  we  would  have  to  hold  that  a  reasonable  doubt  of  .sanity  is  snffl- 
( ieiit  to  aecpiit.  But  a  different  rule  has  always  prevailed,  and  wisely.  It  is 
carrying  tlic  distinction  far  enongh,  liowever,  and  as  far  as  public  policy,  upon 
whieli  it  Is  founded,  requires,  when  we  say  that  insanity  must  be  established  by 
a  clear  preponderance  of  proof." 


'  2  Ohio  St.  70. 


«  21  N.  J.  (L.)  196. 


520 


THE    BURDEN    OF   PKOOF   OP   INSANITY. 


Notes. 


§  4  1.  Pennsylvania.  —  In  Pt-iinsylvanlii  It  Is  not  necessary  tlmt  tlie  jury  should 
be  siilislled  of  tlie  insiinity  of  tin;  uceused  lieyoud  a  reasonable  doubt,  but  there 
must  be  proof  tliat  is  satisfactory,  sueh  as  flows  fairly  fnini  a  preponderanet;  of 
evidence.'  In  Mnernw  Commonicealth,''  it  is  said  by  Acjxkw,  (J.  J.,  deliverini;tlie 
judjinu'iit  of  the  Supreme  Court :  •'Tliero  is  one  error,  for  which  tiie  senteuci;  in 
tids  case  must  be  reversed.  It  appears  in  several  parts  of  the  char;;e,  loavluj;  iii> 
doul)t  as  to  tile  nieauiii<;  of  the  learned  judj^e  who  presiiled  at  tlie  trial.  It  must, 
therefore,  have  impressed  the  minds  of  the  jurors.  WitiioutspecifyinjTeacli  in- 
stance, it  may  l)e  summed  up  in  a  sin;;le  statement,  tliat  the  jud;L;e  instructed  the 
jury  tliat  they  must  be  satistlcd  beyond  a  reasonable  doubt  that  the  prisoner  was 
insane  at  tlio  time  the  act  was  cominitte<l.  Tliis  statement  is  too  strinjieut,  and 
throws  tlie  i)risoner  upon  a  decree  of  jiroof  beyond  the  les:al  measure  of  his  de- 
fence. Tliat  measure  is  simply  proof  which  is  satisfactory  —  sueli  as  flows 
fairly  from  a  preponderance  of  the  evidence.  It  need  not  be  beyontl  a  donhi. 
A  reasonable  doulit  of  the  fact  of  insanity,  on  tlic  other  hand,  is  not  siiflicieiit  to 
ac<|Uit  upon  a  defence  of  insanity.  This  has  been  Iieid  in  several  cases. ^  Sanity 
beinii  a  normal  condition  of  men,  and  insanity  a  defence  set  up  to  an  act  wliicli 
would  otherwise  Ije  a  crime,  the  Ixirtlieii  rests  up<m  tlie  prisoner  of  provinj^  his 
abnormal  condition.  But  tlie  evidence  of  this  need  be  only  satisfactory,  and  the 
conclusion  such  as  fairly  results  from  the  evidence.  Wliere  the  evidenco  raises 
a  baiaiHMUii  (|uestioi;,  and  tlie  mind  is  brou'rlit  to  determine  its  preponderance, 
there  may  be  a  doul)t  still  existing  in  the  mind,  yet  the  actual  weijjht  may  be 
with  the  prisoner;  and  this  proof  sliould  be  considered  satisfactory.  Incases 
of  conflictinjj  evidence  the  pn'ponderanco  must  fjovern,  tliero  bein<j  no  oilier 
rational  means  of  decision.  But  if  wo  say  in  sucli  a  case  it  must  be  satisfactory 
beyond  a  reasonable  doubt,  it  is  evident  llio  cxi)ression  implies  more  than  a  mere 
preponderance.  It  is  difTlcult  to  detino  the  i)recise  difference  between  the  two 
measures,  yet  we  are  conscious  in  our  own  minds  tliat  to  be  convinced  beyond  a 
reasoual)le  doubt  Is  a  severer  test  of  belief  tlian  to  be  satisfied  that  the  prepon- 
derance falls  on  that  side.  Probably  the  true  rt'ason  of  the  dilllculty  in  defining 
the  difference  lies  in  tlie  inability  to  define  a  reasonable  doul)t.  A  reasonable 
doubt  must  be  an  houcst  and  conscientious  dilllculty  in  believiusr  —  one  not 
merely  subtle  or  ingenious;  it  must  arise  out  of  the  evidence  and  not  be  fanci- 
ful, or  be  conjured  up  to  escape  conseciuences.  It  must  strike  the  mind  with 
such  force  as  to  compel  it  to  pause  in  yielding  belief.  Tliese  tiro  characteris- 
tics, but  do  not  define  the  measure  of  belief,  Avhich  is  beyond  a  reasonable  doubt. 
The  judge  stated  well  all  these  characteristics,  and  yet  in  conclusion  said,  by 
way  of  illustration  of  his  nu-auing:  'If  the  beam  waver,  then  the  doubt  is 
t'lrowni  into  the  defendant's  scale;  but  the  jury  must  not  so  hold  the  beam  as  to 
cause  it  to  tremble  citlier  in  favor  of  the  Commonwealth  or  the  defendant.' 
Now,  if  we  apply  this  illustration  of  the  reasonable  doubt  which  operates  to  ac- 
quit a  prisoner,  to  the  evidence  of  his  iusauity,  and  say  that  his  proof  of  the  fact 


t;i 
w 


'  Myers  v.  Com.,  83  Pa.  St.  141 ;  Pannell  r. 
Com.,  m  Id.  260  (1878) ;  Sayres  t:  Com..  88  Jd. 
201  (1879);  Brown  r.  ("om.,  78  Pa.  St.  123 
(1875);  Com.  r.  Wiiincmore,  1  Brewst.  :J56 
(1867);  Com.  r.  Hart,  2  Brewst.  .517  (1S(«); 
Ortwein  v  Com.,  76  Pa.  St.  414  (1875) ;  Lyncli 


r.  Com..  77  Pa.  St.  206  (1874) ;  Coyle  r.  Com., 
ante,  p.  441. 

•■'  S.!  Pa.  St.  141. 

3  oriwein  r.  Com.,  76  Pa.  St.  414;  Lynch 
r.  Com.,  77  Id.  206;  Brown  v.  Com.,  78  Id. 
122. 


jury  should 
t,  but  tlu'if 
nduriincc  uf 
livcrlniitlic 
Hontcuci!  ill 
,  leaving;  no 
1.     It  must, 
in/TC'iuli  iii- 
itniclL'dtlif 
risoncr  was 
indent,  and 
.^  of  lii.s  (le- 
ch as  (lows 
nd  ii  doiilit. 
■iufllck'iit  to 
•s.^     {SiUiity 
II  act  wlii(  li 
provnif^  liis 
iry,  and  tW 
L'uco  raists 
londcrancc, 
j?ht  may  l)t' 
•.     In  cases 
juc  no  other 
satisfactory 
lian  a  mere 
n  tiie  two 
beyond  a 
he  prepon- 
in  detininji 
rcasoiuiljlo 
—  one  Hot 
1)0  faiu'i- 
nind  with 
aracteris- 
il)!c  doubt, 
n  said,  l)y 
doubt  is 
yearn  as  to 
efcndant.' 
ites  to  ac- 
)f  the  fact 

■le  V.  Com., 


414;  Lynoh 
om. ,  Td  JU. 


BUUDEN    ON    TIIE    ACrUSKI). 


'i>'2l 


Uule  in  Vir-ilnitt  tind  West  Vir;iinia. 


«.hall  Ih"  l)eyond  a  rcasonaltlo  doubt,  and  if  tlie  l)cam  waver,  it  is  to  l)e  found 
airainst  his  defj'uce,  wo  discover  tliat  it  implit-s  a  hiitlicr  decree  of  proof  to  cs- 
taltlisli  tlie  defence  of  iiisaidty  tlian  tlio  law  warrants.  It  must  be  not  only  sat- 
isfactory, but  1)0  satisfactory  l)eyond  a  reasonable  doul)t.  Tlie  beam  must  not 
waver  when  preponderatln};  to  tlie  defendant's  .scale,  but  it  must  <io  down 
i|uickly.  It  sei'iiis  to  us,  therefore,  that  this  expressioii,  so  often  repeated  to 
the  jury,  must  have  impressed  tliein  with  a  belief  that  a  hiirh  measure  of  proof 
i>f  the  insanity  of  the  prisoner  was  reciuired.  Tlie  distinction  may  appear  nice; 
vet  we  must  not  overlool<  the  effect  of  iaii'ruaire  upon  eomiiion  minds,  when  the 
■.take  is  life.  Justice  cannot  suffer  it  to  l)e  imperiled  l)eyoiid  a  just  measure  of 
litlief  in  those  who  are  the  triers,  ('oiiimon  Minds  do  not  analyze  accurately  the 
(ie-rrecs  of  belief  or  tlie  nature  of  tlie  (loul)ts  wiiich  affect  it.  We  think,  tliere- 
[ore,  there  was  error  in  statinij;  tlie  dc'^rce  of  lielief  in  reirard  to  the  defence  of 
insanity  too  stronirly."  In  Pannell  v.  Commmtn-filth,^  tlu;  court  was  asked  to 
I  liarue  that  "if  the  jury  l)elieve  that  at  the  time  tlie  homicide  was  committed 
ilie  defendant  was  insane,  he  must  lie  acquitted."  llie  court  fiave  this,  l)ut 
added  "  that  the  jury  must  be  satislied  by  satisfactory  and  c(»iclutiirii  proof  of 
ilie  insanity  of  tlie  defendant."  On  appeal  this  was  held  erroneous.  "That 
tiie  proof  of  insanity  must  be  .satisfactory  and  not  merely  doubtful,  to  justify  an 
;u(|uittal,"  said  tlie  Supreme  Court,  "  is  undoubtedly  correct ;  but  we  do  not 
know  any  ca.se  in  whidi  it  has  been  held  that  it  must  be  coiwliisive.  To  require 
it  to  be  absolutely  conclusive  is  askin<?far  too  hijih  a  dcjjree  of  certainty.  It  is 
not  necessary  that  the  proof  of  insanity  should  be  so  conclusive  as  to  remove 
all  doubt.  It  may  be  establislied  by  satisfactory  and  fairly  pre|.onderatinf;  testi- 
mony." \n  Satirps  \.  Commomccnlth,'^  tlie  court  instructed  the  jury  that  "  the 
( videuce  which  is  intended  to  establish  the  defence  of  insanity  must  be  satisfac- 
tory to  the  jury,  and  the  conclusion  such  as  fairly  results  from  the  evidence." 
This  instruction  was  approved  on  appeal. 

ij  45.  Virgrlnla. —  Insanity  as  a  defence  must  be  proved  upon  the  whole  evi- 
dence to  the  satisfaction  of  the  jury.^ 

§4(1.  West  Virgrlnla.  —  In  Strauder  v.  State,*  W\c  trial  court  instructed  the 
jury  as  follows:  "  To  entitle  the  jirisoner  to  an  acquittal  upon  the  <?round  that 
lie  was  insane  at  the  time  of  the  commission  of  tlie  offence  charged  in  the  indict- 
ment, such  Insanity  must  be  proven  to  the  satisfaction  of  the  jury,  though  In 
passing  upon  this  question  they  may  look  at  the  whole  evidence  in  the  case,  as 
well  that  for  the  State  as  the  prisoner."  On  appeal  tliis  instruction  was  ap- 
proved. "This  conclusion  is,  I  tliink,"  said  GitKKX,  I'.,  "sustained  not  only 
by  the  wciglit  of  authority  but  also  by  sound  reason.  When  the  State  proves  the 
corpus  delicti,  and  that  the  act  was  done  by  the  accused,  it  has  made  out  its  case. 
.\nd  if  tiie  prisoner  relies  on  the  defence  of  insanity,  he  must  prove  It  to  the  sat- 
isfaction of  the  jury.  This  rule  is  necessary  to  protect  the  public  Interests  and 
is  just  to  the  accused." 


1  86Pa.  St.  260(1878). 
•  SS  I'a.  St.  2;)1    (1879) ;  reported  below, 
Commonwealth  v.  Sayres,  12  Phila.  553  (1879.) 


'  Boswell  t<.  Com.,  20  Gratt.  860;  Dcjar- 
nctte  t'.  Com.,  75  \%.  S(;7;  ISar  .igalu|i<j  v. 
Com.,  3.'U;ratt,  M)7. 

*  II  \V.  Va.  715;  see  post,  p.  87:5. 


.')1>2 


TIIH   BURDEN   OF  PROOr  OF   INSANITY. 


NotCH. 


§47.  English  Rule.  —  In  Kii^land  the  Ixirdt'ii  of  proof  of  Insanity  Is  on  the 
prisontr.'  In  V.'m/.  v.  Ldiilmi,-  tju'  prisoner  was  indicted  for  tiu-  murder  of  h\> 
wife.  Tile  defence  was  Insanity.  It  appeared  from  the  evidence  on  tlie  part  of 
liie  proNceulion,  tliat  on  the  7lli  of  May,  tlie  prisoner  and  his  wife  were  walliini; 
aloni;  tlie  road  between  Leaminuton  and  lianlierry,  and  according  to  tlie  dyiiiL; 
<teclaration  «if  the  deceased,  conilrnu'tl  by  other  cviilence,  the  prisoner,  who  had 
been  for  some  time  ciiaslnijhis  wife,  lireda  |iisto|  at  her  —  she  fell  —  tlic  prisoner 
pnllcd  lur  np  and  they  procecdt'd  u  few  y.ards,  when  lie  pnslied  her  down  aiil 
Inflicted  a  wonnd  on  her  throat  witli  u  knife,  lie  then  ;:{)t  over  the  hed;r<'  Into  a 
Held,  and  ran  some  distance  ;,iitil  he  was  overtaken  by  a  person  who  had  seen 
the  woman  fall.  The  prisoner  wiped  the  blood  off  his  hands,  saying  he  had  met 
with  a  misfortnne  and  ent  his  tinker.  He  wonid  not  tell  wliat  he  had  done  with 
the  pistol  and  knife,  bnt  said:  "  I  did  It.  I  intended  to  do  it,  and  that  will  piii 
an  end  to  it.  I  liave  been  nnhappy  since  riiristmas."  He  afterwards  l>ci:an  to 
talk  about  his  family  affairs.  To  anotlur  witness  who  came  up  soon  after,  ami 
wlio  calh<l  the  prisoner's  attention  to  th«  blood  on  hl.s  hands,  saying,  «•  There  i-i 
your  wife's  blood,  are  yon  not  ashamed  of  yourself  ?  "  the  prisoner  replied  :  "  If 
yon  knew  ail  the  cireumstances,  yon  would  not  blame  me  so  much."  At  the 
time  the  prisonc  sliot  and  cut  his  wife,  he  must  have  known  that  persons  wore 
witliin  a  short  distance,  having  just  before  met  tliem  in  the  road.  The  woman 
livi'd  until  the  'J!)th  of  .May.  On  the  8th  the  prisoner  had  an  interview  with  his 
wife,  who  said  to  him:  "  I  foriiive  you  all  vou  h:ive  done,  but  !  shall  never  see 
yo\i  any  more."  The  prisoner  afterwards  oh  n'rved  to  the  constable:  •'  I  wonder 
what  my  wif*-  meant  when  she  siiid  she  should  never  see  mo  any  more.  Do  y:v.; 
suppose  she  means  if  slie  were  to  die,  I  should  be  limned,  or  if  she  -rets  well,  I 
shall  be  transjjorted  for  life  ?  "  lie  repeated  this  on  the  followini;  morning,  and 
also  said,  lu;  liopcd  she  would  get  well  again  for  the  sake  of  her  family.  The 
prisoner  had  threatened  to  murder  his  wife  before  the  7tli  of  Miy;  on  the  day 
before  he  -as  heard  sharpening  a  knife,  and  tluMleeeased  was  afterwards  seen 
running  out  of  the  house,  followed  by  the  prisoner  witli  a  knife  resembling  one 
found  tlie  following  day  near  the  spot  where  the  muriler  was  committed.  Tlie 
prisoner  at  the  lime  of  the  murder  was,  it  appeared,  going  to  Banbury  to  get 
Avork.  The  deceased's  object  In  going  tliere  was  to  consult  her  friends  as  to  a 
.separation  between  herself  and  her  husband  in  coiise(]uence  of  his  threats  of 
violence,  but  the  object  of  her  journey  was  concealed  from  her  husband.  Tlie 
prisoner  had  been  confined  for  two  months  in  Warwick  gaol,  in  the  early  part  of 
the  year,  fi>r  debt,  having  previously  kept  in  the  house- for  ye.irs  to  avoid  his  cred- 
itors; he  had  been  unfortunate  in  building  si)ecnlations.  These  were  the  mate- 
rial facts  of  the  ciise,  proved  on  the  part  of  the  part  of  the  prosecution,  tending 
to  throw  any  light  on  the  state  of  the  prisoner's  mind.  Roi.rK,  R.,  in  summing 
up  the  case,  said  as  there  was  no  doubt  that  the  prisoner  had  killed  his  wife,  and 
the  only  question  Wiis  wl'.  ther,  when  doing  so,  lie  was  a  responsible  agent,  ho 
should  confine  his  ob-orvations  to  this  question.  The  duty  which  now  was  in- 
cumbent on  the  jury  was  the  most  difllcult  that  could  devolve  on  a  jury  or  judge. 
Insanity  was  the  most  difllcult  (piestlon  which  could  enuiiire  the  attention  of  any 
tribunal.    It  was  difllcult  to  deflue  It  in  words,  or  even  in  idea.    The  oplnlou  of 


»  Reg.  V.  Turton,  C  Cox,  SS)  (186-t). 


*  4  Cox,  149  (1849). 


nURDKN    0\   TIIK    ACCUSED. 


r)->3 


Tilt'  Uiilu  ill  KimlaiKl. 


ity  is  "11  till' 

iinliT  of  lli^ 

tlic  part  of 

iiTc  Willlxlli:; 

to  tlif  (iyiiii,' 

ir,  wiio  hati 

llic  prisoiur 

•r  down  ail  I 

lit'diic  Into  a 

.lio  liad  seen 

I  111'  liad  met, 

i(i  done  Willi 

hat  will  put 

ds  I)('i;aii  to 

)ii  after,  ami 

I,  "There  is 

replied:   ♦'  If 

•h."     At  the 

iiTsons  were 

The  woman 

lew  ■with  his 

ill  never  see 

;   •'  I  wonder 

pp.     Do  yo;; 

jrets  well,  I 

lorninu;,  ami 

iiidly.     The 

;  on  the  day 

wards  seen 

d)ling  one 

tied.    Tlie 

nry  to  fiei 

nds  as  tf)  a 

threats  of 

!Uld.     The 

riy  part  of 

(1  hi.s  ered- 

the  mate- 

rni,  tendim; 

n  snmmini,' 

s  wife,  and 

e  a<ront,  he 

iW  was  in- 

y or  judge. 

tion  of  any 

opiuiou  of 


tlie  jildpoH  was  taken  by  the  House  of  Lords  a  few  years  hack,  as  to  what  was  to 
constitute  a  (lellnition  of  insanity,  and  it  created  very  yreat  dilllculty,  but  after 
irreat  and  anxious  deliheration,  they  came  to  the  eon;liision  that  the  old  descrip- 
tion was  till!  best,  vi/.. :   lli.d.  insanity  slionld  constitnle  a  defence  only  wiien  a 
party  was  in  such  a  state  of  mind  arlslni;  from  disease  as  to  b«!  incapable  of  de- 
eiilin;;  between  ri^iit  and  wroiii;,'  but  tliat  this  d.'llnitioii  was  imperfect,  .as  .all 
ilellnitions  must  bi ,  and   would  re<|uire  to  be  inoditled  witli  reference  to  each 
p.irtieular  ease.     Appiyiiiij  tliat  law  to  the  present  c.ise,  he  tlioimht  wh.it  tlie  jury 
liad  to  consider  was,  whellier  tlie  evidence  was  sncli  as  to  satisfy  tlieiii  that  at 
the  time  tiu;  act  was  eominitled  by  the  prisoner  he  w.is  inca|)able  of  iiiiderstand- 
inu  ri;;ht  from   wrtm;:,  as  tliat  lie  could  not  appreciate  the  n.iture  of  tlie  act  he 
was  coiiiinittiuLi.     J'criiaps  it  would  be  ii'Aua  lo(»  far  to  say  tliat  a  party  was  re- 
>|H)nsible  in  every  case  wliere  he  had  a  ^rliiiinicriui:  knowledire  of  what  w.as  ri^tlit 
and  wronn.     In  cases  of  this  di'scription,  tlnre  was  one  cardinal  rule  which 
shonld  never  be  departed  from,  viz.:  tint  the  burden  of  provimr  iniioeeiice  nsteil 
on  tlio  party  accused.     Kvcry  iinin  committing  an  outniire  on  tin;  person  or 
property  of  another  must  l)e,  in  the  first  instance,  taken  to  be  a  responsilile  be- 
iuil.     Sneli  a  presumption  was  necessary  for  the  seeurily  of  inaiikind.     A  man 
iroini;  alxnit  the   world  inariyin;;,  dealiiii:,  aetinii  as    if  he    w.as   sane,  must  be 
presumed  to  be  sam;  till  he  proves  the  contrary.     The  <|nesiion  therefore  for  the 
jury  would  be,  not  whetlier  the  prisoner  w;is  of  sound  mind,  but  whether  he  iiad 
made  out  to  their  satisf.iction  that  In;  wsis  not  of  souml  mind.     On  tin;  other 
hand,  liowever,  they  mi;iiit  arrive  at  the  conclusion,  from  the  nature  of  his  con- 
duct and  acts  up  to  the  time  of  tlie  act  in  i|iiestion,  or  siiortly  precediim  it,  lli:it 
ho  was  insane,  though  he  was  not  capable  of  provinii  it  by  positive  testimony,  as 
such  was  tlie  nature  of  the  mind,  th:it  it  mi;:lit  be  one  minute  s.ine  and  the  next 
insane,  and  therefore  it  mi^rlit  be  impossilde  for  a  party  to  ^'ive  positive  evidence 
of  its  condition  at  tlie  particular  inoinent  in  (|uestioii. 

lie  would  now,  with  a  view  to  enable  tliem  to  form  an  opinion  on  this  snl)ject, 
direct  their  attention  to  tliu  evidence  as  to  the  slate  of  tlie  prisoner's  mind. 

After  fjoim^  throni?h  the  evidence,  his  lordship  said  he  confessed  tlmt,  to  hl.s 
mind,  the  evidcMice  carried  a  conviction  almost  irresistilile  tliat  the  man  was 
Idiorin*?  under  some  mental  delusions.  So  iiiany  people  could  not  be  all  so  de- 
ceived as  to  arrive  at  that  conclusion  witliont  some  jrood  uronuds  for  it.  There 
were  two  attorneys  at  Hanbury,  the  suiieriiiteiident  of  the  Leaininyrton  police, 
Pearson,  tlie  liair-dresser,  the  prisoner's  brother  and  sister  and  iiepliew,  and  a 
comparative  stran,^;er,  from  London,  all  a^reeint?  that  his  manner  and  conduct 
left  an  impression  that  he  was  not  in  Ids  rijjjht  mind.  A  question  asked  by  tlie 
counsel  for  the  prosecution  of  tlie  witnesses  for  tlie  prisoner,  namely,  whether 
lliey  thought  liiin  capable  of  judging  between  right  and  wrong,  seemed  to  him  to 
lie  very  irrelevant,  for  that  was  what  no  witness  thouixht  of  or  was  prejjared  to 
answer.  All  that  witnesses  thought  of  was  whether  or  not  a  person  w.as  in  his 
senses,  and  the  other  was  a  mere  technical  niotle  of  expression  adopted  by  the 
judges.  It  was  probable  tliat  the  prisoner  was  feigning  madness,  but  all  the  cir- 
cumstances showed  that  it  was  very  iinprobal)le.  The  conclusion,  then,  seemed 
Irresistible  that  he  was  to  some  extent  laboring  under  a  delusiou,  but  he  quite 


1  MoNaghten'8  Case,  10  01.  &  F.  200. 


524 


THE    HUKUEN    OF    I'KOOF    OF    INSANITY. 


NutC'8, 


concurred  with  tlic  (•(niuscl  for  tlic  prost'cntU)ii  lliat  he  was  not  fxcinpt  from  ro- 
s|)(  iisiliility,  li('<'aiisc  Ih>  was  lal)()rii>^'  iiidUt  a  (Uliisloii  as  toliis  property,  iiiiluBs 
tliat  liail  tilt;  effect  of  inakiii:;  lilni  iiicapalile  of  iiii(lerstan(llii<{  the  wickedness  of 
inurderlnu  Ills  wife,  lint  when  that  was  t!ie  «|U(  stlon  they  liad  to  consider,  lie 
could  not  .say  that  it  was  allo^etlier  liiiiiiaterlal  that  he  was  insane  on  one  point 
only.  Indeed,  his  Insanity  on  that  point  iiii;;lit  guide  tlieiii  to  ii  conclur'oii  as  to 
his  Hanity  on  the  point  involved  In  this  case,  and  In  this  view  of  the  matter  tliere 
were  two  circumstances  detailed  in  the  evidence  of  great  Importance.  These 
were  tlie  want  of  the  motive  for  tlie  connnission  of  the  crime,  and  its  l)eing  com- 
mitted under  circumstances  which  rendered  detection  almost  inevitahle.  His 
lordship,  after  going  through  the  parts  of  Ids  evidence  which  .supported  tliese 
positions,  coiicliiiled  by  telling  the  jury  tliat  they  could  come  to  no  otlur  conclu- 
sion than  that  the  i»rlsoner  liad  taken  away  tlie  life  of  his  wife,  and  that  tlii.s  was 
murder,  unless  he  satisfied  tlieiii  that  he  wa.s  not  capable  at  the  time  of  upprcci- 
elating  his  acts. 

Verdict,  not  [luilty,  f»i  '/"'  (jrnvnd  of  insanity. 
In  Tlcg.w  Stokes,^  the  prisoner,  a  soldier,  was  Indicted  for  the  murder  of  Mary 
Ann  (ii'.rrard.  He  was  tried  lieiore  Mr.  Daron  Rolkk  at  tlie  York  S|)rlng  Assizes  of 
IStS.  The  fact  of  the  murder  was  not  disputed.  On  the  jinvloiis  l.'()tli  of  Jan- 
uary the  |)risoiier,  in  tlie  Leeds  b.irracks,  took  up  his  musket  as  if  to  clean  '■ 
with  a  rag,  leveled  It  at  the  decea.sed,  tired  and  killed  her  on  the  spot,  her  hus- 
haiid  and  child  being  in  the  room  and  two  other  soldiers  being  present.  It  ap- 
peared In  ev'deiiee  that  the  prisoner  was  a  man  of  singular  habits;  that  he  seldom 
spoke  to  the  other  .soldiers;  was  very  "  secluded,  sulky  and  sullen,"  and  wa> 
described  as  "a  close-minded  man,"  and  a  "man  of  very  nasty  temper."  He 
had  fretiueiitly  complained  of  illness,  and  had  made  efforts  to  get  Into  flic  lios- 
|)ital,  but  he  was  rejected  as  a  man  having  no  visible  disorder  or  sickness.  It 
also  appeared  that  some  months  jircviously  a  bayonet  had  been  wrenched  from 
him  in  tlie  nlglit-time  by  his  fellow-soldiers,  as  they  supposed  he  wa.s  about  to 
destroy  himself.  On  being  arrested  the  prisoner  made  no  resistance,  but  held 
out  his  hands  and  gave  himself  up  to  the  .sergeant,  who  told  him  he  was  a  priso- 
ner. He  declared  that  he  had  loaded  his  musket  designedly,  .saying  that  he  h.id 
no  chance  of  shooting  her  before;  that  he  was  glad  she  was  dead,  as  he  could 
now  die  in  peace,  as  lie  had  had  no  rest  for  nights.  It  was  proved,  too,  that  for 
some  nights  before  the  murder,  while  under  the  excitement  of  liquor,  the  pri.s- 
oner  was  raging  in  the  guard-room,  and  while  handcuffed  had  attempted  to  burn 
himself,  and  afterwards  to  kill  himself  by  striking  hisliead  with  a  poker.  There 
ha<l  been  no  quarrel  of  any  kind  between  the  husbiwid  of  the  deceased  and  the 
prisoner,  as  far  as  was  known.  When  asked  why  he  had  killed  the  woman,  he 
said:  "  No  one  on  earth  should  know  bnt  the  priest,"  adding  that  ho  rejoiced  in 
her  death,  and  could  then  die  happy.  He  also  said  there  was  "  u  man  of  the 
company,  absent  on  furlough,  that  he  would  also  have  shot  had  be  been  there;  " 
but  it  did  not  appear  from  the  evidence  whether  there  was  a  man  on  furlough  or 
not.  The  medical  witnesses  were  cross-examined  at  considerable  length  on  the 
general  character  and  characteristics  of  the  different  classes  of  insanity.  The 
opinions  of  Dr.  Pritchard  on  Insane  Impulses '  were  cited,  who  says :  "  The  will  is 


1  3C.&K.  185  (1848). 


>  Lib.  Med.  (ed.  Dr.  Tweedie),9  Prac.  Med.  118. 


lUTUDEN   OF    ritOOF   ON    IMtOSECUTlON. 


525 


Th«  Third  and  Lust  Tlieory. 


npt  from  ro- 
"Tt.v,  unless 
ckrdiu'ss  of 

COIlsldtT,  ln' 

m  one  point 
lu>  'on  ns  to 
n.'itter  tlicrc 
nee.  Tlusc 
iH'lnj;  coni- 
ital)k«.  Ili.s 
)orted  tlit'so 
Iiir  conclu- 
lat  this  was 
of  apprccl- 

insanity. 
ilcr of  JIary 
;  Assizes  of 
)th  of  Jan- 
ti)  elean   i' 
t,  her  hus- 
nt.     It  ail- 
he  sekloiM 
,"  and  was 
ipor."     II,. 
to  Ihc  hos- 
■kncss.     It 
iched  from 
IS  about  to 
',  but  held 
IS  a  priso- 
lat  he  had 
s  he  could 
o,  that  for 
,  the  pris- 
ed to  burn 
T.     Tliero 
d  and  the 
I'oman,  lie 
ejoiced  In 
lan  of  the 
n  there;  " 
rlouf^h  or 
th  on  the 
ity.    The 
'he  will  Is 

id.  118. 


occasionally  under  the  Intluence  of  a  disordered  inipidk^e,  which  sndileidy  drives 
the  persons  affected  to  tlie  perpetration  of  acts  of  the  most  rrvoltlni;  character, 
and  to  tlie  ctMnniJNHion  of  wliicii  lie  lias  no  motive."  Also  tlmse  of  M.  l%M|uiro| 
on  the  same  sulijecl,  wlio  remarks  tiial  "  numerous  and  will  aullientieatetl  cases 
have  demonstrated  the  fact,  tluit  while  some  nuiduien  conmdlhondcide  under  the 
iiillnence  of  delirium  or  llluslims,  wldle  olliers  perpetrate  similar  acts  willi  pre- 
niedilation  auti  desl;:n,  inlluenced  Ity  an  Intense  feeliui!  of  mal«  volenec  wliieh 
may  be  part  of  the  pneral  perversion  of  their  moral  feelin;;s,  Hk  re  is  n  tlilrd 
class,  wlio  are  under  neitlier  illU' Ions,  nor  moral  jierversinn,  if  we  in(|uire  into 
tlie  •general  state  of  their  affections  and  moral  fei  ;im;>,  and  wlio  are  driven  to 
commit  homicide  by  a  sudden  and  merely  blind  and  instinctive  impulse,  witlioiit 
ct)nscionsness  of  the  nature  of  the  act."  T.ivlor's  Med.  .Iiirlsprudence,  tit.  Hom- 
icidal Monoinaniii  was  also  cited;  and  Mu  opinions  in  llie  several  works  were 
assented  to  as  «|uestions  of  sci«nce  by  the  njciiical  witnesses.  Itoi.ii,,  H.  (in 
sunnnin<;  up)  —  If  tin-  prisoner  seeks  !<)  excuse  hlm.self  upon  the  jilea  of  Insan- 
fly,  it  is  for  him  to  make  it  clear  tlia'  lie  w.is  insiiiK  at  tlie  time  of  comiinl'l.isj 
tlie  offence  cliar^ied.  Tlie  diikh  n  sts  on  liiiii  am"  the  jury  must  be  satistled  tliat 
lie  actually  was  in.sam.  If  tlie  matter  b(  l<  !i  in  doiilit,  it  wi'l  be  their  duty  to 
convict  him;  for  every  man  must  lie  presnimil  to  lie  respousiiile  for  liis  acts  till 
tlie  contrary  is  clearly  sliown.  A  case  occurred  some  time  aiio,  at  l lie  Central 
Criminal  Court,  before  Ai.dkuson,  IJ.,  and  tin-  jury  hesitated  as  to  their  xerdict, 
on  the  ^iroiiud  that  tliey  were  not  satislied  wlietlier  tiie  prisom  r  was  or  was  not 
of  sound  mind  wlien  lie  committed  tlie  crime,  and  that  learmd  jiid^c  tld  them 
that  unless  tliey  were  satislied  of  liis  insanity  it  would  lie  tl'cir  duty  to  lind  a 
verdict  of  f^'d'^y.  Kvery  man  is  luld  resi»onsil)le  for  his  acts  by  the  law  of  this 
country,  If  he  can  dis<'erii  ri^xlit  from  wroiii;.  Tlii>  .  ubjeet  wa>,  a  few  yearsajjo, 
carefully  considered  by  ali  the  judiies,  and  the  law  is  clear  upon  tlie  subject.  It 
is  true  that  learned  speculators,  in  tlieir  writiniis,  liave  laid  it  down  that 
men,  with  a  consciousness  tliat  they  were  doiii:;  wronii,  were  irresistibly 
iiiipelled  to  comnnt  Home  unlawful  act.  But  wlio  eual)led  them  to  ilive  into  the 
human  heart  an»l  see  the  real  motive  that  promi)ted  the  commission  of  such 
deeds?  It  has  been  iirsed  that  no  motive  has  beiii  shown  for  the  commission  of 
tills  crime.  It  is  true  that  there  is  no  motive  ajiparcnt  but  a  very  iiiadetpiate 
one;  but  it  is  danj^erous  j;round  to  take  to  say  that  a  man  must  be  insane  be- 
cause  men  fail  to  discern  the  motive  for  his  act.  It  has  also  bei;n  .said  by  tin- 
prisoner's  counsel  that  the  conduct  of  the  prisoner  was  that  of  a  madman  In 
eonimiitiii;;the  act  at  such  a  lime,  in  tlie  jireseiice  of  the  woman's  luistjand,  wlio 
had  arms  within  his  reach;  but  It  would  be  a  mo.st  daiificrons  doctrine  to  lay 
down,  that  becau.se  u  man  committed  a  desperate  offeiiee,  \\\\h  the  clianee  of 
instant  death,  or  the  certainty  of  future  punishment  before  him,  he  was  therefore 
Insane  —  as  if  the  perpetration  of  crimes  were  to  be  excused  by  their  very  atroc- 
ity. 
The  jury  found  the  prisoner  guilty,  and  sentence  of  death  was  passed  upon  him. 

§  48.  Burden  of  proof  on  Prosecution  —  Third  Theory.  —  The  third  theory  is 
that  the  Imrden  of  proof  rests  on  the  State  to  prove  the  .sanity  of  tlie  pri.soner. 
The  presumption  of  suuity  will  be  iutlulged  iu  the  absence  of  cvideuce  to  the 


523 


THE    BURDEN    OF   PROOF   OF    INSANITY. 


Notes. 


contrary.  If  the  defendant  introduces  no  evidence  which  tends  to  prove  insanity, 
the  presumption  stands.  But  if  lie  gives  evidence  tending  to  overtlirow  tlie 
presumption  of  his  sanity,  casting  loul)t  and  un(;ertainty  upon  it,  it  is  tlie  duty 
of  the  Stat;-  by  adlrmative  evidence  to  prove  his  sanity  beyond  a  doubt.  This 
theory  is  maintained  in  tlie  following  States: 

§  40.  Illinois.  —  In  Fisher  v.  People,^  it  was  said:  "The  jury  in  all  cases 
where  such  a  defence  is  interposed  sliould  be  distinctly  told  that  every  man  is 
presumed  to  be  sane  until  tlie  contrary  is  sliown  —  that  is  his  normal  condition 
Before  sucli  a  plea  can  be  allowed  to  prevail,  satisfactory  evidence  should  be 
offered  tiiat  the  accused,  in  the  language  of  the  criminal  code,  was  affected 
with  insanity,  and  at  the  time  he  committed  tlie  act,  was  incapable  of  upprc- 
ciating  its  enormity.  Tliis  rule  is  founded  in  long  experience,  and  is  essential 
to  tlie  safety  of  the  citizen.  Sanity  being  tlie  normal  condition,  it  mu.st  be 
shown  l)y  sudlcient  proof  that  from  some  cause  it  has  ceased  to  be  the  condition 
of  the  accused."  But  in  IIopps  v.  PcapJe,''  tills  case  was  overruled,  and  it  was 
laid  down  that  the  burden  was  on  the  State,  and  that  if  the  jury  entertained  a 
reasonable  doubt  of  the  prisoner's  insanity  they  should  acquit.  Three  years 
later,  the  judge  who  delivered  the  opinion  in  Hupps  v.  People,  thought  it  neces- 
sary to  explain  that  case.  "What  we  designed  to  say  in  tiiat  case,"  said  he, 
"  was  simply  tliis,  that  .sanity  is  an  ingredient  in  crime  as  essential  as  tlie  overt 
act,  and  if  sanity  is  wanting  tliere  can  l)e  no  crime,  and  if  tlie  jury  entertain  a 
reasonalile  doubt  on  the  question  of  iiLsanity,  the  prisoner  is  entitled  to  the 
benefit  of  the  doubt.  We  wish  to  be  understood  as  saying  as  in  tiiat  case  that 
the  burden  of  proof  is  on  the  prosecution  to  prove  guilt  beyond  a  reasonal>le 
doubt,  wliatever  tlie  defence  may  be.  If  in-sanity  is  relied  on,  and  evidence  given 
tending  to  establish  that  unfortunate  condition  of  mind,  and  a  reasonable, 
well  founded  cloul)t  is  tliereby  raised  of  the  sanity  of  the  accused,  every  prin- 
ciple of  justice  and  humanity  demand  that  the  accused  shall  have  the  benefit 
of  the  doul)t.  We  do  not  desire  to  be  understood  as  holding  tlie  i)rosecutiou  to 
the  proof  of  .sanity  :a  any  case,  bnt  we  do  hold,  where  evidence  cf  insanity  has 
been  introduced  by  the  accused,  and  a  reasonable  doubt  of  his  sanity  is  thereby 
createil,  the  accused  cannot  be  convicted  of  the  crime  charged.  We  deemed  it 
necessary  to  say  this  much  in  explanation  of  the  ruling  in  tlie  case  of  IIopps, 
as  some  expressions  used  therein  may  have  a  tendency  to  mislead."* 

§  50.  Indiana.  —  "If,  upon  the  whole  evidence  in  the  cause,  the  jury  have 
a  reasonable  doubt  wlietlier  tlie  accused  upon  trial  was  sane  when  he  com- 
mitted the  homicide  or  act  charged  against  him,  they  must  have  a  reasonable 
doubt  whether  he  purjjosely  and  maliciously  eonimitted  the  act;  and  hence,  a 
reasonable  doubt  whether  he  eonimitted  the  crime  detlned  by  statute."*  An 
instruction  to  the  jury  tliat  "the  jury  are  to  presume  the  defendant  innocent 
until  his  guilt  is  established  by  the  evidence  beyond  a  reasonable  doubt,"  is  not 


'  23111.283  (I860), 
2  31111.385(1865). 
0  Chase  v.  People,  40  III,  362  (1866), 


*  Polk  V.  State,  19  Ind.  170  (1862) ;  Stevens 
V.  State,  31  Ind.  483  (1869) ;  Uuetig  v.  .Stute, 
66  Ind.  94  (1879) ;  eec  post,  p.  87S. 


BUKOKV    OF   rUOOF   0\   STATE. 


527 


Kansas,  Michigan,  Mississippi,  Ncbraslta  and  New  Ilampshiro. 


Inconsistent  with  an  instniotion  tliat  "  cvi-ry  man  is  presumed  to  be  sane  and 
to  intend  the  natural  and  ordinary  consequences  of  liis  acts.'" 

§51.  Kansas.  —  The  same  rule  has  been  adopted  in  Kansas.*  In  State  v 
ifaAn,*  the  i)risoner  aslied  tlie  court  to  instruct  the  jury  that,  "in  order  to 
entitle  the  defendant  to  an  acquittal,  he  is  required  only  (o  ratse  a  reasonable 
doubt  as  to  his  sanity,"  and  tiie  court  niodilled  tlu-  instruction  and  gave  it  in 
these  words:  "  In  order  to  entitle  tlie  defendant  to  an  ac(|uittal,  he  is  required 
only  by  evidence  to  estahlish  a  reasonable  doubt  as  to  his  sanity."  In  the  Supremt; 
Court  this  was  held  to  be  correct. 

§  52.  Michieran.  —  And  tlic  same  rule  prevails  in  Michigan.* 

§53.  Mississippi.  —  Sanity  is  presumed  in  the  absence  of  testimony  relating 
thereto,  but  whenever  the  (piestion  is  put  in  issue  by  evidence  such  as  engenders 
11  reasonable  doubt,  it  devolves  on  the  prosecution  to  remove  it  and  establish 
the  sanity  of  tlie  prisoner  to  tiie  satisfaction  of  the  jury,  beyond  all  reasouable 
doubt  arising  out  of  all  the  evidence  in  the  case.^ 

§54.  Nebraska.  — Where  evidence  of  insanity  is  produced  by  the  prisoner, 
unless  the  jury  are  satisfied  tluit  the  act  complained  of  was  not  the  product 
of  mental  disease,  they  must  acciuit.* 

§  55.  New  Hampshire.  —  The  same  rule  was  adopted  in  this  State  in  ISfil.' 
In  State  v.  PiA.e,"  the  judge  instructed  tlie  jury  that  sanity  was  presumed,  but 
that  when  any  evidence  was  introduced  tending  to  show  insanity  the  State  must 
satisfy  the  jury  beyond  a  reasonable  doubt  that  the  prisoner  u  sane.  The 
majority  of  the  Supreme  Court  approved  this  rule.  But  Mr.  Justice  Doe  was 
not  satisfied  with  this  liberal  rule ;  he  thought  there  should  be  no  legal  presump- 
tion  of  sanity  at  all.  «<  Malice,"  said  he,  "  was  alleged  in  the  indictment,  and 
lliat  allegation,  as  well  as  every  other  material  averment  of  the  indictment,  was 
traversed  by  the  general  issue.  Ou  the  question  of  malice,  the  State  had  the 
afllrmative  and  the  burden  of  proof;  and  the  State  was  required  to  prove  the  alle- 
{ration  of  malice  as  well  as  every  other  material  averment,  beyond  all  reasonal)le 
doubt.  Sanity  being  an  essential  element  of  nuilice,  must  be  proved  by  the  State 
beyond  all  reasonable  doubt.  This  rule  is  not  peculiar  to  cases  in  which  malice  is 
formally  alleged.  Sanity  is  an  indispensable  ingredient  of  all  crim?.  If  the  crime 
is  denied,  sanity  is  denied,  and  the  party  alleging  it  must  prove  it.'  It  was  held  in 
that  case,  that  the  presumptions  of  sanity  and  of  malice  are  presumptions  of 
fact  that  do  not  change  the  burden  of  proof,  but  merely  authorize  the  jury  to 


'  Greenley  v.  State,  00  Ind.  141  (1877). 

2  State  V.  Crawford,  11  Kns.  32;  State  v. 
Roddick,  7  Kas.  144  (1871)-. 

3  25  Kas.  1S2  (1881). 

<  People  r.  Garbiitf,  17  Mi"''.  9  (1868). 
What  is  a  "reusoniibie  doubi, '  was  well 
ilcilncd  ill  People  v.  Finley,  38  Mich.  48a 
(W78). 


6  Cunningham  v.  State,  56  Miss.  26!)  (1879) ; 
Ncwconib  V.  State,  ;i7  Miss.  38,3  (1859) ;  Rus- 
sell r.  State,  53  Miss.  307  (1^76). 

6  Wriglit  t'.  People, 4  Neb.  409  (1876) ;  Ilawe 
V.  People,  U  Neb.  .537. 

'  State  V.  P.uitlett,  43  N.  U.  224  ;  State  v. 
Jones,  SOX.  11.  aii'.t. 
«  49\,It.  31t!)  (1870). 
«  State  f.  Burllett,  43  N.  11.  224. 


528 


THE   BURDEN   OF   PROOF   OF    INSANITY. 


Notes. 


find  sanity  and  malice  without  any  direct  testimony  of  witnesses  upon  tlieso 
points.    Tile  instruction  jjiven  in  tliis  case  is  a  departure  from  State  v.  Bartldt; 
for  Avlien  tlie  jury  were  told  tliat  every  person  of  mature  ajie  is  presumed  to  lie 
.sanetliey  would  naturally  understand  that  thev  received  a  lejial  presumption  from 
the  court,  and  not  that  the  presumption  was  one  of  the  facts  for  them  to  pass 
upon.    The  presumption  was  laid  down  witli  this  important  qualillcation,  tliat  it 
existed  only  so  lonjij  as  there  was  no  evidence  of  insanity,  and  vanished  at  tliu 
moment    the  sliijhtest  particle  of  evidence  appeared  tending  to  sliow  insanity. 
Such  a  legal  presumption  would  i)e  irregular,  exceptional  and  anomalous.     If 
there  was  a  legal  i)resumption  of  sanity,  it  operated  throughout  the  trial,  to 
keep  the  l)Hr(len  of  proving  insanity  on  the  defendant,  or  to  support  the  burden 
which  belonged  to  the  State.    If  it  did  not  establish  sanity  beyond  reasonabK' 
doubt,  it  was  immaterial.     If  it  did  establish  sanity  beyond  reasonable  doul)t, 
it  shifted  tlie  burden  of  proof  contrary  to  tlie  doctrine  of   State  v.  BarthHt, 
Shifting  the  burden  of  proof  upon  the  defendant,  and  allowing  him  to  throw 
it  baclc  upon  the  State  by  a  scintilla  of  testimony,  would  naturally  be  followed 
by  allowing  the  State  to  throw  it  back  again  upon  the  defendant  Ijy  another 
scintilla,   and  so  on  througli  an   interminable    subdivision  of   the  evldenci:. 
There  is  no  legal  guilt  in  a  homicide  solely  caused  l)y  a  mental  disease.     Men- 
tal capacity  to  commit  an  offence,  includes  sanity.     And  if  there  is  a  legal 
prestimption  of  innocence,  as  the  books  say,  how  is  it  overpowered  in  the  absence 
of    all  evidence,  by  a  legal  presumption  of   sanity?     When  the  two  presuni|)- 
tions  come  in  contlict  without  a.ssistance,  how  does  the  law  ascertain  which 
prevails?  '     If  it  is  necessary  to  almlish  one  of  the  presumptions  to  avoid  their 
conflict,  the  presumption  of   innoee>..ce  can  well  be  spared,  for  it  is  entirely 
useless.     The   State,  alleging  guilt,  must  prove   it.     The  burden  of   proof  is 
attached  to  the  allirmative.     The  accused  does  not  need  a  presumption  of  inno- 
cence, and  it  is  of  no  advantage  to  him.    There  is  no  legal  presumption  of  guilt, 
and  the  defendant  is  as  well  protected  l)y  the  rule  which  puts  the  burden  of  proof 
on  the  party  alleging  an  allirmative,  as  he  would  be  by  a  |)resumption  of  inno- 
cence.    Greenleaf,  indeed,  says  that  the  legal  presumption  of  innocence  is  to  i)e 
regarded  by  the  jury  as  a  matter  of  evidence.'    But  this  is  an  incorrect  view. 
A  legal   presumption  is   not  evidence;    it  establishes  a  point  where  there   is 
no   testimony  and  no  inference  of    fact  from  the  al)sence  of  testimony,  and 
also  when  all  the  testimony  is  so  l)alanced  that  the  point  is  not  ilecided  i)y 
the  testimony.    Tutting  upon  the  State  the  burden  of  proving  guilt,  and  giving 
to  the  defendant  a  presumption  of  innocence  as  evidence  tending  to  disprove 
the  guilt  which  the  State  must  prove,  would  be  like  doubling  the  weight  of  any 
testimony  tlie  defendant  nught  introduce,  and  weighing  at  once  against  the 
State  and  again  in  favor  of  the  defendant.     The  burden  of  proof  afllxed  to  the 
afflrmative,  generally  renders  a  legal  presumption  of  law  unnecessary;  but  it 
seems  sometimes  to  be  supposed  that  there  is  a  necessity  for  such  a  presumption 
for  or  against  every  fact  alleged  and  denied  in  pleading;  and   more  so-called 
legal   presumptions  have   been  constructed   than  can   be    conveniently  used. 
There  arc  certain  natural  or  usual  causes,  effects,  conditions  and  customs, 


'  Green  borough  v. 
Gr.  OH  Kv.,  sect.  ;<,i. 


Underhill,  12  Vt.(>04;  1 


=  1  Gr.  on  Ev.,  sect.  34. 


Mil.    JUSTICE    DOE  S    VIEWS. 


529 


No  rrt'i-umption  of  Sanity. 


i  upon  thoso 

!e  V.  Bartlrti; 

L'suini'd  to  Ik' 

imptioti  from 

tlit-m  to  pa.ss 

;atiou,  that  it 

iiished  at  tliu 

low  insanity. 

oniaious.     If 

tlie  trial,  to 

't  tlic  burrleu 

A  reasonai)lr 

maiile  dotiht, 

e  V.  Bartli'tt, 

lim  to  tlirow 

r  l)e  foilowid 

t  by  another 

lie  evldeuce. 

■lease.     Mcu- 

*e  is  a  legal 

II  the  absence 

ivo  presunip- 

ertain  vliich 

>  avoid  their 

t  is  entireh 

of   proof  is 

ion  of  inno- 

on  of  guilt, 

en  of  proof 

ion  of  iiiiio- 

enceis  to  l)e 

orrect  view. 

re  there   is 

imony,  and 

decided  l)y 

and  giving 

to  ilisprove 

ight  of  any 

against  the 

flixcd  to  the 

ary;  but  it 

resumption 

re  so-callud 

ently  used. 

d  customs, 


generally  within  the  reach  of  the  experience  or  the  observation  of  men,  which  a 
jury  are  justified  in  lliuling  l»y  an  inference  or  presumption  of  fact,  when  tlicre 
is  no  testimony  sliowing  an  exceptional  instance  in  the  case  on  trial.'  Whei  it 
is  proved  tliat  one  man  has  l\illed  anotlur  with  a  deadly  weapon,  under  aome 
circumstances  tlierc  may  l)e,  as  a  matter  of  fact,  a  fair  inference  of  malice  and 
intent  to  kill;  but  in  England,  and  generally  in  this  country,  such  inferences 
have  been  improperly  changed  into  legal  presumptions  and  used  to  change  the 
burden  of  proof  throughout  the  trial. '^  It  is  not  necess-^^y  In  this  climate  to 
offer  testimony  to  show  that  the  ground  was  frozen  the  last  January,  or  that  It 
was  not  frozen  the  last  August.  Seedling  fruit  tri'cs  do  not  generally  bear  fruit 
of  the  best  (luality;  and  without  any  testimony  of  witnesses  as  to  the  product 
of  a  particular  seedling,  a  jury  would  be  authorized  to  presume  the  fact.  lu 
such  ca.ses  the  absence  of  testimony  tending  to  show  an  exception,  may  be  sat- 
isfactory evidence  tending  to  show  the  operation  of  the  known  general  rule. 
The  inference  drawn  by  the  jury  from  the  absence  of  particular  testimony  is  a 
presumption  of  fact.  But  many  such  presumptions  liave  l)een  uuneces.sarily  pro- 
mulgated by  the  court,  and  improperly  called  j)resiuui)tions  of  law, — the  court 
having  a  great  advantage  of  position  iu  encroaching  upon  the  province  of  the 
jury.  The  presumption  of  sanity  is  not  an  artillcial  or  legal  jjresumption,  but  a 
natural  inference  of  fact  to  l)e  made  by  a  jury  from  the  al)sence  of  evidence  to 
show  that  a  party  did  not  enjoy  that  soundness  wiiich  experience  proves  to  be 
the  general  condition  of  the  human  mind.^  The  State  has  no  more  need  of  a 
legal  presumption  of  sanity  than  the  defendant  has  of  a  presumption  of  inno- 
ceuce." 

§  50.  New  York.  —  In  O^Brien  v.  People,*  the  court  refused  to  charge  the  jury 
tliat  "where  in.sauity  is  interposed  as  a  defence,  the  afllrmative  of  the  ,ar,\ie  is 
with  the  People,  and  they  must  estal)lish  the  sanity  of  tlie  i)risoner  at  the  time  of 
tile  commission  of  the  alleged  crime  by  a  preponderance  of  the  evidence."  In 
BviAherton  v.  People,^  the  Court  of  Appeals  said :  "Crime  can  l)e  committed  only 
by  human  beings  who  are  in  a  condition  to  be  responsible  for  tiieir  acts;  and 
upon  this  general  proposition  the  prosecutor  holds  the  allirmative,  and  the 
liurden  of  proof  is  upon  him.  Sanity  being  the  normal  and  usual  condition 
of  mankind,  the  law  presumes  that  every  individual  is  in  that  state.  Hence,  a 
jirosecutor  may  rest  upon  tliat  presumption  without  other  proof.  The  fact  is 
deemed  lo  be  \n'0\{n\  pr una  facie .  Whoever  denies  tliis,  or  Miter[)Oses  a  defence 
based  upon  its  untruth,  must  jtrove  it;  the  bun'-u,  not  of  tlie  general  issue  of 
crime  by  a  competent  per.sou,  but,  the  burden  of  overthrowing  the  |)resumption 
of  sanity,  and  showing  in.sauity,  is  upon  the  person  who  alleges  it;  ami  if  evi- 
dence is  given  tending  to  establish  in.sauity,  then  the  general  (luestion  is  pre- 
sented to  the  court  and  jury  whether  the  crime,  if  committed,  was  committed 
by  a  person  responsible  for  his  acts,  and  upon  this  (|Uestion  tlie  presumiition 
of  sanity  aud  the  evidence  are  all  to  be  considered ;  and  the  prosecutor  holds  the 


'  U.  V.  Burdett,  4  B.  &  Aid.  121;  K.  r. 
nosscr,  7  C.  &  P.  648;  Ottawa  v.  Graham,  28 
111.  73. 

Ante,  p.  431. 
34 


3  Sutton  r,  Sadler,  3  C.  B.  (N.  s.)  87, 96. 
♦  48Bnrb.  274  (lS(i7). 
6  75  N.  Y.  15!)  (1878). 


630 


THE   BURDEN    OF   PKOOF   OF   INSANITY. 


Notes. 


affirmative,  and  if  a  rcusonai)le  doubt  exists  as  to  wliether  the  prisoner  Is  sane  oi 
not,  lio  is  entitled  to  tlic  benefit  of  the  doubt  and  to  an  aquittal.  Tlie  question 
may  be  stated  in  a  variety  of  language.  Tliere  Is  no  rigid  rule  prescribing 
the  particular  terms  to  bo  employed,  if  the  substance  of  the  rule  Is  preserved. 
The  judge  in  this  case,  among  many  others  not  criticised,  u.sed  this  exprcs- 
siou:  'The  alleiiation  of  insanity  is  an  adirmative  issue  vhlch  the  defendant  is 
bound  to  prove,  and  you  must  be  satisfied  from  the  testimony  introduced  by 
him  that  be  was  insane.'  And  he  also  charged  that,  '  if  there  is  a  \vell  founded 
doubt  whether  this  man  was  insane  at  tiie  time  he  fired  the  pistol,  you  will 
ac(|uit  liim.'  Tal<e  the  two  paragraphs  of  tlio  charge  together,  there  was  no 
error.  The  prisoner  was  l)ound  to  prove  that  he  was  not  sane;  and  whether 
insanity  is  called  an  afllrmative  issue,  or  it  is  srated  that  the  burden  of  proof  of 
insanity  is  upon  the  prisoner,  in  order  to  overcome  the  presumi)tion  of  sanity,  Is 
not  very  material,  if  the  jury  are  told,  as  they  were  in  this  case,  that  a  reasou- 
aljle  doubt  upon  that  question  entitled  the  prisoner  to  an  accjuittal.  The  jury 
could  not  have  misunderstood  their  dutyiinder  these  instructions,  nor  have 
been  misled  by  them,  and  if  an  exception  had  been  taken  it  must  have  been 
overruled."  In  Wafjuer  v.  People,^  the  court  was  asked  to  charge  that,  "  where 
the  evidence  establishes  an  hypothesis  consistent  with  the  prisoner's  insane 
state  of  mind,  it  is  the  duty  of  the  jury  to  adopt  that  hjniothcsis  in  accounting 
for  the  killing."  To  which  the  court  responded:  "Of  course  that  Is  so,  if  yoe 
have  any  doubts  as  to  the  degree  of  the  offence  committed."  The  prisoner,  who 
was  being  tried  for  the  murder  of  his  wife,  was  convicted  and  sentenced  to 
death.  On  appeal,  tiie  judgment  was  alllrmed.  "What  was  meant  precisely  l)y 
this  re(iuest,"  said  Hunt,  J.,  "  it  is  difilcult  to  comprehend.  The  case  is  probably 
imperfect,  as  the  answer  is  not  entirely  responsive  to  the  proposition.  It  was 
l)rol)ably  intended  to  request  a  charge  that,  where  the  evidence  estiiblished  'a 
state  of  facts '  consi.stent  with  the  prisoner's  insane  condition  of  mind,  it  was 
the  duty  of  the  jury  to  give  the  prisoner  the  l)enefit  of  that  evidence,  or  give 
due  weight  to  these  facts  in  accounting  for  the  killing.  If  so,  the  request  in 
the  abstract  was  correct  and  the  proposition  implied  was  reasonable.  It  was 
quite  unimportant,  liowever,  in  the  present  case,  for  two  reasons:  First,  the 
court  had  already,  with  great  clearness  and  accuracy,  laid  down  the  law  upon 
the  subject  of  insanity.  Among  other  statements,  the  judge  had  used  this 
language  to  the  jury:  'Every  man  is  presumed  to  be  sane  and  to  possess  a 
sufficient  degree  of  reason  to  be  responsible  for  his  acts.  When  the  question 
of  insanity  is  presented  upon  the  evidence,  the  prisoner  is  entitled  to  the  benelit 
of  any  doubt  which  may  arise  upon  tlie  question;  tliat  is,  tlie  jury  must  be 
satisfied,  beyond  all  reasonable  doubt,  that  he  was  sane  when  he  committeil  the 
act;  but  if  the  jury  are  satisfied,  beyond  the  reasonable  doubt,  that  the  prisoner 
knew  that  the  nature  and  quality  of  the  act  he  was  doing  was  wrong,  the  law 
holds  him  responsible.  I  have  been  requested  to  charge  you  that,  if  the  pris- 
oner committed  the  act  in  a  moment  of  frenzy  he  cannot  be  convicted  of  muriler 
in  the  first  degree.  I  not  only  charge  that  i)ropositiou,  but  if  his  mind  was  iu 
that  condition  he  cannot  be  couvictetl  of  any  offence.    The  true  test  for  respou- 


1  4  \h\}.  .Vpi).  Dec.  508. 


BUKDEX   OF   PKOOF   ON    PKOHECUTION. 


531 


Rule  iu  New  York  and  Tennessee. 


sibility  for  acts  committed  is  commonly  knoAvn  as  the  test  of  right  and  wrong. 
if  the  jury  are  .satislied  that  tlie  prisoner  knew  tlie  diff<renee  l)etween  right 
and  Avrong,  in  regard  to  tlie  particular  act  in  ([uestion,  tlun  tlie  law  holds  him 
responsible  for  ids  act.  If  they  are  not  so  satislied,  of  course  it  would  be  their 
(hity  to  ac(|uit  him  al)solutely.'  This,  I  think,  gave  the  prisoner  the  full  benellt 
of  the  law,  as  emitraced  iu  his  special  reipiest  as  intended  to  have  been  made. 
Hut  again,  the  charge  of  tlie  judge  on  this  point,  and  his  answer  to  tlie  special 
re«iuest,  iu  detail  and  its  entire  scope,  were  gratuitous  and  beyond  the  righ^^s  of 
tlie  prisoner.  The  testimony  in  the  case  does  not  furnish  a  single  fitct,  idea,  or 
suggestion  on  which  a  claim  of  insanity  can  be  based.  The  evidence  discloses 
tliat  on  July  22d  the  prisoner  liad  been  engaged  at  his  work,  and  in  the  after 
|),irt  of  the  day  went  into  the  room  where  his  wife  was  stayijig.  After  tlie 
lapse  of  a  ^;hort  period  of  time,  slirieks  and  screams  were  heard,  the  bystanders 
rushed  in  and  found  the  prisoner  in  the  act  of  ta!<ing  the  life  of  his  wife.  She 
was  upon  the  floor,  the  prisoner  standing  or  kneeling  al)ove  her,  iuflictiug  fre- 
<iuent  ijlows  with  a  hatcliet,  which  he  left  Imbeilded  in  her  l)rain.  lie  fled  a 
.short  distance,  was  pursued,  arrested,  and  wlien  asked  wliy  he  had  committed 
siicli  a  deed,  simply  answered  that  he  had  a  cause  for  it.  Tliis  is  the  whole  of  the 
(  vidence  on  this  point.  We  know  nothing  of  tli«!  provocation  to  tiie  deed,  real 
or  imaginary.  We  are  ignorant  of  what  took  place  at  the  last  fatal  interview. 
We  only  know  the  residt.  The  prisoner  was  not  greatly  excited.  He  gave  no 
evidence  then,  or  before,  or  since  of  any  aberration  of  mind,  or  even  of  eccen- 
tricity. He  was  an  ordinary  uuiuarked  m;in,  e.xliibiting  the  usual  evidence  of 
capacity  and  of  sanity,  with  no  eviileuce  of  delusion,  of  delirium,  or  of  igno- 
rance of  his  moral  or  social  duties.  He  simply  murdered  his  wife,  cruelly, 
lirutally  and  remor.sele.s.sly.  Tlie  fact  that  he  had  been  previously  a  man 
of  good  character  formed  no  defence  to  the  act,  and  furnished  no  evidence 
of  in.sanity.  The  case  called  for  no  charge  on  tlie  subject  of  insanity,  and  no 
exception  lies  for  the  want  of  it.'  The  judgment  of  the  court  below  should  be 
idlirmed,  anti  tlie  record  remitted  to  the  Supreme  Court  for  further  proceedings." 
But  the  doubt  which  existed  iu  this  State  by  the  uncertain  and  conflicting 
rulings  on  this  (picstion' was  effectually  put  to  rest  by  the  recent  decision  of 
the  Court  of  Appeals,  in  O'Counell  v.  People,^  In  that  case  it  is  said  that  the 
prosecution  must  satisfy  the  jury  "  upon  the  whole  evidence  that  the  prisoner  was 
mentally  responsilile;  for  the  affirmation  of  the  issue  tendered  by  the  indict- 
ment remained  with  the  prosecution  to  tlie  end  of  the  trial."  The  presumption 
of  sanity  stands  until  repelled.  If  the  prisoner  gives  no  evidence  as  to  his 
insanity,  the  presumption  stands,  but  if  he  gives  evidence  tending  to  overthrow 
the  presumption  the  prosecution  must  produce  answering  tcstiniuuy. 

§  57.  Tennessee.  —  In  Tennessee,  sanity  when  questioned  by  evidence,  must  be  • 
proved  beyond  a  reasonable  doubt  by  the  State.* 


1  See  WUlis  v.  People,  .32  N.  Y.  716. 

2  See  Lake  v.  People,  1  Park.  495  (iaV4) ; 
People  f.  McCann,  3  Park.  272  (1857),  re- 
verseU  in  People  v.  MoCaiin,  16  N.  Y.  68 
(1857) ;  Moett  v.  People,  85  X.  Y.  373. 


3  87  N.  Y.  380. 

«  Lawless    v.  State,   4   Lea,   179    (1870) ; 
Dove  V.  State,  3  Heisk.  348  (1872). 


532 


THE    BURDKN   OF   PROOF   OF   INSANITY. 


Notes. 


§  58,  Texas.  —  In  a  case  In  the  Court  of  Appeals  of  this  State  It  was  said: 
"Wo  do  not  doom  It  necessary  or  incumbent  upon  us  to  unravel  or  attempt  to 
answer  the  misty  mazes  and  the  metaphysical  disquisitions  indulged  by  the 
opposing  theorists  al)out  sanity  being  essential  to  criminal  iutent,  and 
criminal  Intent  being  essential  to  punishable  crime,  nor  their  equally  ab- 
struse and  obscure  views  as  to  which  side  has  the  burden  of  proof  when  the 
faanity  of  the  defendant,  from  whatever  cause,  acquires  a  status  in  the  case." 
The  court  held  tliat  "tlie  evidence  of  insanity,  to  warrant  an  acquittal,  should 
be  sufficiently  clear  to  convince  the  minds  and  consciences  of  the  jury."  •  But 
in  a  more  recent  case  it  Is  laid  down  that  the  burden  is  on  the  prisoner  in  such 
cases  to  establish  his  insanity  by  a  preponderance  of  the  evidence.' 


1  Webb  V.  State,  9  Tex.  Ai)p.  490  (1880) ; 
EinK  V.  State,  Id.  653;  Johnson  v.  State,  10 


Id.  577  (1881) ;  Clark  V.  State,  8  Id.  350  (1880) , 
Carter  v.  State,  12  Tex.  500  (1854). 
*  Jones  V.  State,  13  Tex.  App.  1  (1883). 


CHAPTER    III. 

DRUNKENNESS. 


DRUNKENNESS  NO  EXCUSE  —  BURDEN  OF  PROOF. 

McKenzie  V.  State. 

[20  Ark.  335.] 
In  the  Supreme  Court  of  Arkansas,  December  Term,  1870. 
Hon.  W.  W.  WiLSiiiRE,  Chief  Justice. 

"  LaFAYKTTK  GUKUd,  1 

"  WiM.IA.M  M.   IIaukison,  I 

"  TitoMAs  M.  BowEN  ^  Associate  Justices. 

"  Joiix  McCluhk.  I 

1.  Dninkenness  is  no  Excuse  for  Crime. 

3.  The  Burden  of  Proof  is  on  the  prisoner  who  pleads  insanity  as  a  defence;  and  the  Jury 
are  the  judges  of  the  weight  of  the  testimony  adduced  tliereon. 

Appeal  from  Sebastian  Circuit  Court. 

Du  Val  &  King,  for  appellant,   Montgomery,  Attorney-general,  for 
appellee. 

GUEGG,  J.  

(Omitting  rulings  on  other  points. ) 

The  second  ground  is,  that  the  finding  of  the  jury  was  not  warranted 
by  the  evidence,  the  substance  of  which  follows :  — 

John  Speet  testified  that  he  came  to  Noble's  brewery,  in  Fort  Smith,, 
and  McKenzie,  the  appellant,  and  Brown,  the  deceased,  were  sitting 
near  each  other  at  the  door  of  the  Brewery.     Brown  said  to  McKenzie^ 
"  let  us  go  home."     McKenzie  called  him  a  d— d  son  of  a  bitch,  and 
told  him  to  kiss  (an  indecent  part  of  his  person).     Brown  then  said,  "  I 
do  not  wear  any  pistol."     McKenzie  said,  "You  are  not  able  to  wear 
any  such  things."     McKenzie  then  put  on  his  shoes  and  got  lip  from, 
his  seat  inside  the  door,  stepped  back  about  two  steps,  raised  his  coat, 
drew  a  revolver  from  his  side,  and  said,  "  You  d— d  son  of  a  bitch,  don't 
bother  me  any  more,"  and  shot  Brown,  who  fell.     Brown  was  then 
about  three  steps  outside  the  door.     Mrs.  Noble  testified  that  as  soon 
as  the  pistol  fired,  she  went  into  the  brewery  and  saw  the  man  in  the 
back  room  with  a  pistol  in  his  hand,  and  saw  the  man  lying  dead  out  at  the 

(  533  ) 


534 


DKUNKKNNT.SS. 


MrKenxie  v.  State. 


door.  Frank  Wt'.'^'y  testified  that  he  was  near  the  brewery  ;  saw  Hi  )wii 
standing,  and  saw  liim  fall  and  die,  about  throe  steps  out  of  the  door  ; 
did  not  see  ]McKcn/ie  any  more  until  an  ofHcerhad  sirrosted  him.  Mrs. 
Brown  testified  that  she  saw  the  accused  and  her  husband,  the  deceased, 
on  llic  17th  of  June,  18(;7,  near  Fort  Smith,  on  the  Van  Buren  road,  and 
in  about  three  hours  thereafter  she  saw  the  body  of  the  deceased  lying 
near  Noble's  brewer}- ;  that  on  the  morning  of  the  same  day,  she  heard 
the  accused  tell  deceased  that  he  would  kill  him  that  day  ;  that  the  ac- 
cused then  had  no  pistol,  ])ut  half  an  hour  afterwards  she  saw  him  with 
a  pistol  and  lead  in  his  hand  ;  that  she  and  others  came  to  town  with 
accused  and  deceased,  in  a  wagon,  soon  after  diinier ;  she  knew  of  no 
difficulty  between  the  accused  and  deceased ;  they  talked  together  on 
the  road ;  the  accused  told  deceased  to  shut  his  mouth,  that  he  knew 
notlung,  but  she  supposed  they  were  joking.  Crawford  testified  that  he 
knew  the  accused  and  deceased;  saw  them  at  Fishback's  farm,  where 
they  lived,  in  the  forenoon  ;  they  were  playing,  slapping  each  other  and 
running  around,  and  he  heard  the  accused  say,  "  I  will  kill  you  before 
night."  ]\fcKenzic  seemed  to  be  drunk ;  saw  him  with  a  pistol;  they 
started  to  town  soon  after  dinner;  in  the  evening  he  heard  that  Brown 
l.ad  been  killed.  Other  witnesses  testified  as  to  the  killing,  the  wound, 
etc  ;  but  the  most  material,  for  the  prosecution,  was  the  above  alluded 
to.  All  the  witnesses  showed  that  they  knew  of  no  previous  quarrel  be- 
tween the  parties. 

The  defenda.it  introduced  several  witnesses.  The  first  testified  that 
the  appellant  WIS  of  singular  habits  of  mind;  another  said  he  regarded 
him  as  very  much  broken  down,  phj-sically  and  mentally  ;  had  not  con- 
sidered him  in  iiis  right  mind  for  ninety  days,  and  not  more  responsible 
than  II  lunatic ;  that  when  drunk  he  is  different  from  other  persons ; 
never  heard  him  say  anything  angry  or  vicious ;  he  seemed  prostrated  ; 
he  went  Avith  one  Taylor,  and  they  were  up  much  night  and  day.  The 
next  witness  testified  that  he  was  a  graduate  of  Maryland  Univer- 
sity, and  had  practised  medicine  for  twenty  years ;  had  for  several 
months  known  the  accused,  and  he  had  concluded  lie  was  8imi)lc- 
minded  ;  and  if  talking  to  medical  men,  he  would  call  him  insane  —  not 
in  the  full  sense  of  that  term  ;  he  was  of  the  opinion  he  was  iml)e(;ile  to 
such  an  extent  as  at  times  to  render  him  unconscious  of  an}'  act,  and 
that  this  imbecility  was  increased  bv  the  excessive  use  of  intoxicating 
drinks ;  he  was  of  opinion  the  accused  would  generally  know  the  differ- 
ence between  right  and  wrong,  and  would  be  responsible  for  his  acts ; 
but  it  is  probable,  in  his  case,  that  the  use  of  intoxicating  drinks  to  any 
great  extent  would  render  him  totally  insane.     The  next  witness  said  he 


M   KKXZIK    r.    .STAli:. 


b,io 


EvhU'iiff  of  lusauity, 


aw  Bk  )wn 
the  door ; 
in.  Mrs. 
defeased, 
road,  and 
asod  Iviiiii 
she  heard 
lat  the  ai- 
r  him  with 
town  with 
new  of  no 
igcther  on 
t  he  knew 
ied  that  lie 
rni,  whtre 
otlicr  and 
'Oil  before 
stol ;  they 
11  at  Brown 
ie  wound, 
vc  alluded 
uarrel  be- 

ified  that 
regarded 

I  not  con- 

jsponsible 
persons ; 

•ostrated ; 
ay.  The 
UnivcT- 

^r  several 
sirai)le- 

me  —  not 

nbeoile  to 
'■  act,  and 
oxicatins; 
he  differ- 
his  acts ; 
ks  to  any 
33  said  he 


had  practised  medicine,  etc.,  seventeen  years,  and  had  known  the  r.c- 
cused  six  months,  and  he  was  of  the  opinion  his  mind  was  very  inucU 
impaired  from  some  bad  habits,  or  the  conunission  of  some  crime,  that 
had  preyed  upon  his  mind,  so  as  to  in-oducc  mental  'mbecility ;  and  that 
that  would  be  greatly  increased  by  excessive  use  of  .t  ong  drnk.     The 
next  testified,  that  he  had  seen  freaks  in  the  accused  that  made  him 
think  that  he  was  not  a  man  of  sound  mind  ;  and  again,  he  had  thought 
liim  a  very  intelligent  man  ;  ho  is  a  man  of  no  sense  when  on  a  spree,  no 
reason  or  control  of  hini.self  Avhen  under  the  influence  of  liquor ;  he  saw 
liim  once  when  he  was  putting  a  band  on  a  gutter,  and  told  him  he  was 
not  putting  it  on  very  straight;  he  made  no  reply,  but  picked  it  up  and 
kissed  it;  and  that  witness  went  and  told  the  foreman  that  he  was  "  a 
perfect -una."     This  was  in  March,  18(57;  the  accused  said  but  little 
when  sober,  and  at  such  times  he  considered  that  he  would  know  right 
from  wrong.     Jackson  Brooks  testiiied  that  he  saw  the  accused  at  the 
brewery ;  he  was  about  the  bar  pretty  much  all  day,  and  he  '^aw  him 
drinking  "  right  smart ;  "  thinks  he  was  sober  in  the  morning,  but  about 
three  o'clock  he  was  pretty  tight;  this  was  the    17th  of  June,  1807. 
The  next  witness  said,  he  came  to  town  with  the  accused,  and  he  took  a 
glass  of  beer  at  the  "  Last  Chance,"  and  again  diank  at  the  brewery, 
and  was  pretty  drunk  ;  this  was  the  only  time  he  ever  saw  him  drunk. 
The  State  then  introduced  a  witness,  w  ho  said  he  had  for  several  months 
known  the  accused,  and  regarded  him  not  very  bright  —  hardly  medium 
sense.     The  next  witness  said  he  and  the  accused  were  both  carpenters, 
and  worked  together  in  the  government  shop ;  had  known  him  since  De- 
cember, 18G6  ;  was  foreman  over  him,  and  could  not  say  he  ever  thought 
he  wanted  sense ;  he  was  a  good  man  and  a  good  meclianic ;  that  he 
knew  the  witness  who  said  he  told  him,  as  foreman,  that  the  accused 
was  a  "perfect  luna,"  and  did  not  remember  of  his  ever  having  feuch 
talk  to  him.     The  next  witness  said  the  accused  had  worked  for  him  a 
month  and  a  half,  and  he  thought  him  an  ordinarily  sensible  man.     The 
next  witness  said  he  was  a  carpenter ;  had  frequently'  seen  the  accused  ; 
worked  in  the  shop  with  him,  and  never  saw  anything  in  him  that  indi- 
cated insanity.     The  next  w  itness  stated  the  same.     The  next  said  he 
had  been  with  the  accused  every  day  for  two  weeks  before  the  kiUing, 
and  saw  no  evidence  of  insanity.     The  widow  of  the  deceased  then  tes- 
tified that  she  had  never  seen  any  indications  of  the  accused  being  insane, 
and  that  about  a  week  before  the  killing  she  heard  the  accused  sa}',  if  Le 
were  to  commit  murder  he  would  claim  to  be  insane,  and  when  he  got 
out  of  it  he  would  be  as  smart  as  any  of  them. 


530 


DKUNKKNNESS. 


McKenzio  i'.  Stuto. 


\7c  have  V.ius,  at  length,  referred  to  the  8ul)stanoeof  the  evidence,  bo- 
cnusc  the  principal  question  ht-re  presented  is  as  to  the  snfllciency  of 
this  evidence  to  sustain  the  verdict  of  murder  in  the  first  defrrco.  The 
rule  is  well  understood  that  where  the  State  proves  beyond  a  reasonable 
doubt  that  the  accused  perpetrated  the  nnirder  by  lying  in  wait,  or  by 
other  kind  of  wilful,  deliberate,  malicious,  and  premeditated  killing,  it 
is  murder  in  the  first  degree.  The  intention  is  manifested  by  tiie  cir- 
cumstances connected  with  the  act  of  killing.  Kxi)ress  malice  is  that 
wliich  is  capable  of  proof,  and  malice  is  implied  wiien  no  considerable 
provocation  appears,  or  when  all  the  circumstances  of  the  killing  mani- 
fest an  abandoned  and  wicked  disposition,  and  this  court  has  decided 
that  the  length  of  time  is  not  material,  so  that  the  killing  was  the  result 
of  a  Avilful,  corrupt,  and  malicious  r<tent  to  take  life ;  a  design  thus 
formed  before  the  act  of  killing  is  suflicient.' 

There  can  be  no  question,  leaving  the  insanity  out  of  view,  but  that 
the  evidence  here  shows  a  wilful,  intentional  killing,  and  not  only  a  want 
of  considerable  provocation,  but  without  tlie  slightest  provocation. 
Take  the  entire  testimonv,  and  there  is  not  the  sliyrhtest  word  or  act. 
from  the  deceased  towards  him,  in  any  way  calculated  to  injiu'e  him  or 
arouse  his  passions.  On  the  other  hand,  there  is  some  evidence  going  to 
show  that  he,  before  and  at  the  time  of  the  killing,  was  haboring  malice 
toward  tiie  deceased.  A  settled  intent  to  commit  the  most  diabolical 
crimes  may,  and  often  does,  remain  secret  until  an  opportunity  offers 
to  carry  the  wicked  purpose  into  effect.  And  b}"  concealing  the  malice, 
and  cause  of  ill-will  that  exists,  a  wicked  one  can  better  hope  to  accom- 
plish his  purpose  and  escape  punishment ;  hence  it  is  wise  for  the  law 
to  presume  that  every  one  Intends  the  first  and  natural  consequences  of 
his  act. 

In  this  case  two  witnesses  testify  to  threats  made  on  the  morning  be- 
fore the  killing.  One  cf  these  same  witnesses  testified  that  a  week  before 
the  accused  declared  what  he  would  do  in  case  he  should  commit  mur- 
der, and  the  fact  of  his  preparing  himself  with  a  deadly  weapon,  imnic- 
diutciy  after  making  the  threats,  his  impolitic,  if  not  insulting,  words 
while  going  to  Fort  Smith,  and  the  unprovoked  attack  and  killing  of 
the  deceased,  certainly  well  justified  th^:-  jury  in  finding  that  the  killing 
was  wilful,  malicious,  and  premeditated. 

To  refute  this  very  violent  presumption  against  him,  the  prisoner  at- 
tem[)ted  to  set  up  that  he  was  then  insane,  and  not  conscious  of  the  act 
he  did. 


1  Bivena  v.  State,  11  Ark.  4C0,  Burgess  v.  Com.,  Vu.  Cases,  483,  and  6  Rand.  (Va.)  121. 


nUUDKN    OF    PROOF   ON    I'IMSONKIl. 


537 


DniukiMiness  no  Dtfoiic*' 


vidoiK'c,  br- 
iflleiency  of 
jfiree.  Tlie 
L  reasonable 
wait,  or  by 
il  killing,  it 
b^'  11  le  cir- 
iilici'  is  that 
onsidcrable 
illing  mani- 
as dt'cidcd 
s  the  result 
lesign  thus 

w,  but  that 
3nly  a  want 
rovocation. 
ord  or  acl 
ure  hira  or 
ce  going  to 
"ing  maUie 
;  diabolical 
tiity  offers 
he  malice, 
to  aecom- 
ir  the  law 
luences  of 

»rning  be- 
H'k  before 
imit  mur- 
3n,  inime- 
)g,  words 
illing  of 
he  killing 

soner  at- 
>f  the  act 


a.)  121. 


The  legal  presumjUion  is  in  favor  of  sanity,  and  that  the  party  in- 
tended to  do  what  was  the  natural  conscfiuence  of  his  act,  and  if  lie 
made  no  denial  of  the  killing,  but  assumed  that  he  was  excusable,  he 
thereby  took  the  burden  of  proof;  and  if  he  failed  to  produce  evi- 
dence sufHcient  to  change  the  presumption  raised  against  him  by 
(he  proof  of  the  killing,  I'le  penalty  of  the  law  would  be  legally  ad- 
judged against  him,  and  tlio  jury  is  the  only  proper  tribunal  to  deter- 
inin»'  the  weight  of  the  oviaenee,  and  this  verdict  was  not  a  finding 
without  evidence. 

It  was  by  the  physicians  and  some  others  testifii'd  that  the  accused 
was  imbecile  —  a  man  of  weak  mind,  and  liable  t(i  be  much  affected 
from  excessive  use  of  strong  drink  ;  but  while  this  may  havelieeii  proba- 
ble, even  if  it  had  been  most  likely-,  it  is  by  no  means  conclusively 
shown  that  such  result,  as  an  excusable  insanity.  avouM  follow  from  the 
free  use  of  intoxicating  licpiors  ;  and  in  that  conflict  of  evidence  the  jury 
alone  could  determine. 

If  it  had  been  shown  that  drunkenness  would  nccessaril}'  produce  in- 
sanity in  the  accused,  the  proof  is  by  no  means  conclusive  that  at  the 
time  of  the  killing  he  had  been  laboring  under  the  inlluence  of  ardent 
spirits  long  enough  or  to  an  extent  suiricicnt  to  produce  that  insanity. 
One  witness  spoke  of  Jiis  drinking  some  the  day  before  the  killing.  An- 
other supposed  he  was  «lrinking  in  the  morning  before  the  killing  in  the 
afternoon ;  but  one  who  had  been  with  him  for  two  weeks,  except  the 
previous  day,  said  he  was  sober  for  that  whole  time.  Different  other 
witnesses  testified  that  he  was  sober  in  the  forenoon  of  that  day  and 
when  he  came  to  town.  Brooks  testified  that  he,  at  the  time  of  the  kill- 
ing, was  drunk,  or  as  he  termed  it,  "  pretty  tight;  "  that  he  had  seen 
him  about  the  brewery  J(e«r?>/  all  da;/,  and  had  seen  him  drink.  This 
statement  is  not  well  sustained  by  other  witnesses.  It  was  shown  by  a 
immlier  of  them  that  he  did  not  come  to  town  until  afternoon,  and  that 
the  killing  was  about  three  o'clock,  and  this  made  it  quite  clear  that  he 
was  not  there,  nearly  all  day,  and  that  Brooks  did  not  fairly  state  the 
facts.  Except  a  glass  of  beer  no  one  else  testified  that  he  had  been 
drinking  after  coming  to  town. 

To  place  no  stress  upon  the  evidence  tending  to  show  he  was  sane, 
and  if  not  at  the  time,  up  to  near  the  time  of  killing,  and  we  do 
not  see  how  the  jury  on  either  point, — being  drunk,  or  being  insane, 
if  drunk,  —  could  well  have  found  in  the  accused's  favor;  and  would 
it  not  endanger  the  rights  of  society  beyond  what  the  law  will  allow, 
to  hold  that  any  one  who  voluntarily  beclouds  his  mind  with  intoxi- 


538 


I)Ui;nkknm:.sh. 


Cliolce  V.  iSttttc. 


cuting  drinks  may  thereby  he  excused  in  talking  the  lifi>  of  an  innocent, 
man  ?  ' 

The  testimony  shows  a  most  wanton  and  unnecessary  killing  of  a  fel- 
low-man, and  while  hi.s  attempt  to  prove  Ids  own  insanity  at  the  time  of 
the  killing  was  such  as  may  have  afforded  him  a  hope  of  acquittal,  yet 
it  was  strongly  rehutted,  so  nuich  so  as  to  remove  any  doubt  thatmlglit 
have  been  raised  as  to  his  criminal  intent  and  responsibility,  and  the 
jury  having  so  decitled,  the  judgment  and  the  sentence  of  the  court  be- 
low must  be,  and  the  same  is  in  uU  things,  atHrmed. 

Affirmed. 


DRUNKENNESS  — VOLUNTARY  DRUNKENNESS  NO  EXCUSE  — TARTICU- 
LAR  RKMIT  AND  WRONC}  TEST  — OINOMANIA  — MORAL  INSANITY  — 
EVIDENCE  —  STATEMENTS  OF  PRISONER  —  REPUTATION  —  ORDER 
OF  PROOF  — EXPERTS  — OPINIONS. 

Choice  v.  State. 


[31  Gtt.  424.] 

In  the  Supreme  Court  of  Georgia,  August  Term,  1860. 

Hon.  JosKPU  11.  Lc.MPKiN,  Chii'f  Justice. 

"       n""A.M.F.LvON,        |j„^^,, 

"     ChaklksJ.Jkxkins,  * 

1.  Insanity— Evidence— statements  of  Prisoner.  —  Where  the  defence  to  an  indict- 

ment for  murder  is  insanity,  evidence  of  (v  subsequent  conversation  with  llie  prisoner 
and  of  the  tests  made  at  that  time,  are  not  admissiblo  to  show  liis  insanity. 

2.  Order  of  Proof— Evidence  of  Malice  in  Rebuttal. —Where  the  prosecution   has 

proved  a  homicide,  and  tlie  prisoner  introduces  evidence  tending  to  show  liis  insanity, 
the  prosecution  may,  in  rebuttal,  offer  evidence  of  express  malice. 

3.  Evidence  of  Non-Experts.  — The  opinions  of  persons  not  experts  as  to  the  sanity  of  the 

prisoner  are  admissible,  if  accompanied  by  the  facts  upon  wliich  they  arc  founded. 

4.  The  Opinions  of  Witnesses,  that  the  prisoner  appeared  to  bo  drinking  are  admis- 

sible. 
6.  The  Opinions  of  Physicians  as  to  the  sanity  of  the  prisoner  on  facts  hypothetically 
stated  are  admissible. 

6.  Evidence  of  Insanity  by  Reputation.  — The  insanity  of  the  prisoner  cannot  be  shown 

by  evidence  of  reputation. 

7.  Intoxication— No  Defence  When  Voluntary.— If  ft  niftn's  mind,  unexclted  by 

liquor,  is  capable  of  distinguishing  between  right  and  wrong,  and  he  voluntarily  de- 
prives himself  of  reason  by  intoxication,  such  intoxication  is  no  excuse  for  a  crime 
committed  in  that  condition. 

1  See  Bishop  on  Criminal  Law,  Vol,  1,  sects.  434  and  499,  and  note  1. 


CHOICE    V.  8TATI:. 


/i.lS) 


nil  iiinoccnl 

«  « 

If?  of  ft  fcl- 
tlic  timo  of 
luittftl,  yet 
.  that  might 
y,  and  tlic 
3  court  be- 

Ifflrmed. 


TARTICU- 
^SANITY  — 
<  — ORDER 


SylliibU!*. 


0. 


to  an  indict- 
lie  prisoner 

ecutlon   hns 
liis  insanity, 

sanity  of  the 
founded. 

arc  ail  mis - 

pothetically 

ot  be  shown 

lexcited  by 
intarily  de- 
for  a  crime 


rt.  Same.  —  Kor  doeA  it  mako  any  dltTrrnnce  lliat  11  inuii,  cither  l)y  a  former  Injury  to 

tlio  liead  or  brain,  or  n  non.Htitiitional  inllruiity,  li«  niorit  apt  to  l)u  inadiliMicii  l)y  iii|iior 
iliaii  aiiotiiur  man.  If  liu  lia^  IukhI  niiMimry  lunl  iliNcrullun  wiit'ii  ^cll)L'r,  ajiil  voliiiiiarlly 
dv|irivoH  liini.'iulf  ot  rcaHiin.  lie  \»  ruH[MinMl)lt;  for  \\\»  aclH  wliiitt  in  tintt  I'onditinn. 

J.  An  Inordinate  thirst  for  liauor.proiJurod  I»ythfhal)ili>fdrln1»in(ir,  i^  no  exruse  for  the 
conNUi|Uun('UM  of  hiicIi  indiiigcnrc.    Tlio  dinuaho  caiiud  oinomania  quuHtionud. 

10.  Moral  Inaanlty  or  irrct<|)oM8il)iliiy  for  crime  from  Inability  to  control  the  will  from  the 

Inibit  of  Indulguncu,  lias  no  foundation  in  tliu  law. 

11.  Test  of  Insanity —  Particular  Riffht  and  Wronu  Test.  — If  a   man  has  rapacity 

cnouKh  to  dlMtinguish  between  the  right  and  wrong  of  his  act,  he  1m  a  subject  for  pun- 
Ishuieut. 

Indictment  for  muider  in  Fulton  Superior  Court.  Tried  before  Judge 
Bi;i,i.  at  the  October  term,  IK;')!),  on  an  indictment  found  in  the  previous 
April  term,  chtirging  William  A.  Choice  with  the  murder  of  Calvin 
Welsh.     The  jury  returned  a  verdict  of  guilty.     'J'he  piisoner  appealed. 

B.  II.  Hill,  A.  /?.  Wright^  and  Calhoun  &  Son,  for  the  appellant. 

Thomas  L.  Cooper,  Attorney-General,  for  the  State. 

Lumpkin,  C.  J.,  delivered  the  opinion  of  the  court: 

To  avoid  being  tedious  I  was  strongly  inclined  to  pass  all  the  minor 
points  in  this  case.  Tiiey  were  not  dwelt  upon  by  the  able  counsel  in 
the  argument.  On  account  of  the  importance  of  the  case,  however,  I 
concluded  that  every  assignment  of  error  had  best  be  noticed.  I  shall 
dispatch  them  with  as  much  brevity  as  possible. 

When  the  bill  of  exceptions  was  presented  to  Judge  Bt:i.L  for  his  signa- 
ture, he  made  in  his  own  handwriting,  several  corrections  of  the  facts 
us  therein  stated.  To  these  additions  counsel  for  the  plaintiff  in  error 
object ;  and  it  becomes  necessary,  therefore,  to  dispose  of  this  prelim- 
inary point  before  proceeding  further.  After  verdict,  a  rule  nisi  was 
moved  for  a  new  trial.  The  motion  was  ordered  to  be  entered  upon  the 
minutes.  Upon  hearing  tho  :xpplication,  it  was  refused.  It  is  now  in- 
sisted that  the  rule  nixi,  by  being  placed  upon  the  minutes,  became  a 
locord,  imparting  absolute  verity,  and  that  it  is  not  competent  for  the 
presiding  judge  to  alter  or  modify  the  statement  of  the  facts  as  set 
forth  in  the  rule  nisi,  when  he  comes  to  certify  subsequently  to  the  bill 
of  exceptions.  Is  tliis  position  tenable?  The  rule  nisi  was,  upon  the 
hearing,  denied ;  i)erhaps  partly  because  the  statements  in  it  were  not 
true  and  consistent  with  what  transpired  on  the  trial ;  at  any  rate  this  is 
u  sufficient  reason  for  refusing  such  an  application.  The  only  effect  of 
placing  the  motion  upon  the  minutes  was  to  show  that  such  a  motion  had 
been  made  at  that  term  of  the  court,  and  upon  the  grounds  therein 
stated.  That  could  not  be  controverted.  But  it  did  not  concede  that 
the  facts  therein  stated  were  true. 


540 


DRUNKENNESS. 


Choice  V.  State. 


1.  It  is  complained  that  the  court  erred  in  refusing  to  allow  the  wit- 
ness, Dan'el  S.  Printup,  to  state  in  evidence  tlie  following  facts :  That 
a  short  time  after  the  homicide  was  committed,  he  visited  the  prisoner, 
and  for  the  purpose  of  testing  his  sanity,  among  other  things,  informed 
prisoner  that  it  might  be  very  important  in  his  defence  to  know  from 
whom  he  procured  the  pistol  with  which  he  shot  deceased,  for  the  two- 
fold purpose  of  proving  by  the  person  from  whom  he  procured  it,  his 
condition  of  mind  at  the  time ;  and  also  to  show  that  the  pistol  was  not 
the  property  of  the  prisoner ;  and  it  could  not  be  ascertained  from  any 
other  person  from  whom  it  was  procured ;  and  that  he  said  nothing  to 
the  prisoner  but  what  showed  that  it  would  be  to  his  interest  to  disclose 
the  fact  if  he  knew  it ;  when  the  prisoner  replied,  that  he  had  no  re- 
collection whatever  of  having  a  pistol,  nor  any  person  from  whom  he 
could  or  did  procure  it ;  and  had  no  recollection  of  shooting  or  even 
seeing  the  deceased.  And  also  in  refusing  to  allow  said  witness  to  state 
the  means  adopted  by  B.  H.  Hill  to  test  the  sanity  of  the  prisoner  at  the 
time  of  committing  t'>e  act,  before  he  was  eniployed  to  defend  pris- 
oner, and  in  refusing  to  allow  the  counsel  to  state  before  the  court  what 
facts  he  did  propose  to  prove  on  this  subject. 

To  this  first  ground  of  alleged  error  in  the  bill  of  exceptions  the 
judge  api)ends  this  note :  "  The  counsel  only  offered  to  prove  a  conver- 
sation with  the  prisoner,  by  himself,  some  three  months  after  the  homi- 
cide." Let  us  look  at  this  ground  for  a  moment,  apart  from  the 
qualifying  statement  added  by  tlie  judge;  if  the  prisoner  were  sane  at 
the  interview  between  Col.  Printup  and  himself,  and  he  is  deserving  of 
the  reputation  which  he  has  always  sustained,  of  being  a  young  man  of 
more  tlian  ordinary  talents,  it  would  have  occurred  to  a  much  duller  in- 
tellect, in  the  twinkling  of  an  eye,  to  have  feigned  entire  ignorance  and 
forgetfulness  of  the  whole  transaction,  as  much  more  available  to  his 
defence  than  any  information  he  could  communicate  upon  the  points  to 
which  his  attention  was  directed. 

What  tests  were  aj^plied  by  Mr.  Hill,  ihe  powerful  and  indefatigable 
champion  of  the  accused,  we  are  not  informed.  We  know  that  Mr. 
Hill  do'^'!  r.ot  profess  to  be  an  expert ;  and  if  he  did,  we  are  not  aware 
that  the  law  recognizes  any  such  mode  as  the  one  pursued  in  this  case 
for  testing  the  sanity  of  culprits.  It  is  not  tlie  conduct  or  declarations 
of  the  party,  at  the  time  of  the  act,  which  are  sought  to  be  proven  as  a 
part  of  the  res  getitce,  but  matters  transpiring  subsequently.  In  the 
hands  of  honorable  men  —  and  tlie  character  of  those  concerned  in  this 
matter  are  above  suspicion  —  a  precedent  like  this  might  not  be  so  mis- 


INSANITY   TO    HKBIT   MALICE 


541 


Evidence  in  Rebuttal  by  State. 


chievous.  It  is  a  practice,  however,  so  liable  to  abuse  that  we  think  it 
safer  to  discourage  an  innovation.  We  were  glad  that  no  point  was 
made  in  the  argument  upon  the  refusal  of  the  court  to  allow  counsel  to 
state  before  the  court,  and,  of  course,  in  the  hearing  of  the  jury,  what 
facts  he  did  i>ropose  to  prove  as  to  the  matter  we  liave  been  discussing. 

2.  The  second  assignment  of  error  is  in  the  court's  refusing  to  allow 
prisoner  to  prove  that,  owing  to  the  diseased  condition  of  prisoner's 
mind,  the  family  and  friends  about  Rome  had  long  refused  to  allow  him 
to  have  deadly  weapons.  To  which  the  court  adds:  "  I  have  no  recol- 
lection of  any  offer  to  prove  any  control,  or  attempt  to  control,  the  de- 
fendant in  carrying  weapons,  or  any  refusal  to  permit  him  to  carry 
them.  The  witness  did  testify  that  the  family  had  endeavored  to  pre- 
vent prisoner  from  carrying  a  i>istol."  As  the  presiding  judge  refuses 
to  certify  that  the  facts  stated  in  the  ground  are  true,  it  is  needless  to 
review  it.  It  is  a  very  immaterial  matter  at  best.  For  what  prudent 
family  would  not  have  dreaded  to  see  deadly  weapons  in  the  hands  or 
about  the  person  of  William  A.  Choice  —  one  who,  while  in  his  cups,  as 
all  the  proof  demonstrates,  was  so  dangerous  to  both  friend  and  foe. 

3.  The  third  complaint  is  in  allowing  the  State  to  prove,  in  rebuttal, 
by  Luther  J.  Green,  the  difficulty  between  prisoner  and  deceased,  the 
night  before  the  homicide,  us  evidence  of  express  malice,  and  in  allow- 
ing the  evidence  of  Thomas  Gannon  and  Samuel  Wallace  to  prove  the 
same  point.  The  State  having  proved  the  homicide  closed,  as  the  law 
would  imply  malice  from  the  killing.  To  rebut  this  presumption,  the 
plea  of  insanity  was  interposed,  and  a  large  amount  of  evidence  ad- 
duced to  support  it.  An  insane  person  is  not  supposed  to  act  from 
malice.  Does  lo  not  weaken  the  force  and  effect  of  the  prisoner's 
defence  io  show  express  malice  ?  Who  would  not  more  readily  believe 
that  the  prisoner  was  insane  had  he  shot  a  friend  or  an  indifferent  per- 
s  )n,  as  he  frequently  threatened  to  do,  l)ut  as  usual,  failed  or  forbore, 
instead  of  one  against  whom  he  manifestly  harbored  a  spirit  of  revenge 
for  V  supposed  insidt  or  injury?  A  drunken  mi\n  rarely  if  ever  shoots 
or  stabs  another,  unless  he  cherishes  some  resentment  towards  him.  It 
is  quite  otherwise  with  the  insane.  A  drunken  man  reasons  from  cor- 
rect data;  whereas  the  insane  draw  right  conclusions  from  false  data. 
In  this  view  of  the  testimony,  it  was  strictly  in  rebuttal.  But  this 
question  has  been  repeatedly  decided  by  this  court;  that  is,  that  the 
introduction  of  testimony,  whether  cumulative  or  in  the  rebuttal,  orfor 
any  other  purpose,  is  entirely  within  the  discretion  of  the  circuit  courts. 
We  said  in  one  case,  that  in  no  case  could  we  consent  to  reverse 
the  circuit  judge  for  letting  in  testimony  which  was  relevant,  at  any 


542 


DRUNKENNESS. 


Choice  V.  State. 


8tage  of  the  case.*  In  this  last  case  the  court  say:  "  The  State  relied 
upon  the  facts  first  proven,  as  making  out  a  clear  case  of  malice,  the 
malice  ingreilient  being  implied,  as  it  clearly  was  reasonably  to  be  im- 
plied from  all  the  circumstances  of  the  killing.  The  prisoner  then  put 
in  evidence  facts  which  went  to  some  extent  in  rebutting  the  presump- 
tion of  malice.  The  State  then  asked  leave  to  strengthen  its  case  by 
proving  express  malice ;  and  it  being  granted,  the  prisoner  excepted. 
I  confess,"  says  tlie  learned  judge  who  wrote  out  the  opinion,  "my 
inability  to  see  upon  what  ground.  Surely  it  is  not  necessary  to  discuss 
this  point." 

4.  The  next  assignment  is,  that  the  court  erred  in  allowing  Luther  J. 
Glenn  and  J.  A.  Hayden  to  give  their  opinions  as  to  the  sanity  or 
insanity  of  the  prisoner;  and  in  allowing  them  to  give  their  statements, 
that  the  prisoner  was  drinking,  when  such  statements  were  made  as 
conclusions,  and  not  as  facts.  The  judge  subjoins  a  note  to  this  excep- 
tion to  this  effect:  "  I  heard  no  objection  to  this  testimony  at  the  time 
it  was  given.  The  opinions  of  witnesses,  other  than  exi)erts,  as  to  the 
question  of  the  sanity  or  insanity  of  the  defendant,  was  first  introduced 
by  defendant's  counsel,  and  at  their  instance  ;  and  after  objection  made 
by  the  State's  counsel,  was  admitted  by  the  court  with  the  distinct 
avowal,  that  as  the  question  was  somewhat  unsettled,  if  the  defendant's 
counsel  insisted  on  it,  the  evidence  would  be  admitted,  with  the  condi- 
tion, that  the  rule  should  work  alike  in  favor  of  both  sides ;  and  the 
defendant's  counsel  expressly  accepted  the  condition."  Perhaps  it 
would  be  better  to  dismiss  this  point  without  a  word  of  comment.  Unless 
the  memory  of  the  judge  is  greatly  at  fault,  this  ground  should  never 
have  been  incorporated  in  this  bill  of  exceptions.  When  parties  stipu- 
late expressly  with  each  other  and  with  the  court,  that  a  certain  course 
shall  be  pursued  in  the  management  of  a  cause,  that  agreement  should 
be  considered  binding,  more  especially  when  the  record  shows,  as  it 
does  most  abundantly  in  this  case,  that  the  defendant  has  reaped  the  full 
benefit  of  the  rule  of  evidence  thus  agreed  to.  Still  that  it  may  not  be 
said  that  au}"^  injustice  has  happened  or  fallen  to  the  accused  for  want 
of  recollection  in  the  presiding  judge,  I  propose  to  examine  this  fourth 
ground  to  some  extent.  It  has  been  the  settled  doctrine  of  this  court, 
from  its  organization,  that  the  opinions  of  witnesses,  other  than 
experts,  are  admissible  as  to  matters  of  opinion,  especially  as  it  respects 
sanity  or  insanity,  provided  such  opinions  be  accompanied  by  the  facts 


'  Bryan  t>.  Walker,  20  Ga.  480;  Lumpkiu  i».  Williatns,  19  Ga.  5(59;  Walker  v.  Walker,  14 
Ga.  242;  Bird  v.  state,  Id.  43. 


OPINIONS  AS   TO   INSANITY. 


543 


Opinious  of  Non-Experts  Admissible. 


State  relied 
malice,  the 
y  to  be  iiii- 
er  then  put 
le  presump- 
its  case  by 
r  excepted, 
nion,  "my 
y  ^o  discuss 

I  Luther  J, 
!  sanity  or 
tatcinents, 
■e  made  as 
this  excep- 
at  the  time 
i,  as  to  the 
introduced 
3tion  made 
le  distinct 
efendant's 
the  condi- 
;  and  the 
Perhaps  it 
t.    Unless 
uld  never 
ties  stipu- 
lin  course 
;nt  should 
«ws,  as  it 
^d  the  full 
ay  not  be 
for  want 
!iis  fourtli 
his  court, 
her   than 
t  respects 
the  facts 


upon  which  they  were  founded.  >     Our  books  are  full  of  precedents  upon 
this  point. 

As  for  mj'self  I  would  rely  as  implicitly  upon  the  opinions  of  practical 
men,  who  form  their  belief  from  tlieir  observation  of  the  appearance, 
conduct  and  conversation  of  a  person,  as  I  would  upon  the  opinions  of 
physicians  who  testify  from  facts  proven  by  othei-s,  or  the  opinions  even 
of  the  keepers  of  insane  hospitals.  But  the  question  in  all  such  cases 
is,  not  which  is  the  most  reliable  evidence,  but  the  inquiry  is  shall  the 
witnesses  be  restricted,  in  their  testimony,  to  a  simple  statement  of  facts 
coming  within  their  knowledge,  leaving  the  jury  to  draw  an  inference 
of  sanity  or  insanity,  or  may  the  judgment  of  the  witnesses,  founded 
on  opportunities  of  personal  observation,  be  also  laid  before  the  jury, 
to  assist  them  in  forming  a  correct  conclusion  ?  One  who  has  seen  and 
conversed  with  an  insane  person,  and  observed  his  countenance  and 
behavior  has  an  impression  made  upon  his  mind  whicli  is  incom- 
municable. This  court  is  committed  to  the  rule,  that  the  jury,  in  such 
case  is  entitled  to  the  benefit  of  this  impression.  It  may  be  said  that 
Col.  Glenn's  opportunity  of  observing  and  judging  of  the  capacity  of 
Choice  was  too  limited.  But  it  has  been  truly  remarked  that  so  differ- 
ent are  the  powers  and  habits  of  observation  in  different  persons  that 
no  general  rule  can  be  laid  down  as  to  what  shall  be  deemed  a  sufficient 
opportunity  for  observation  other  than,  in  fact,  it  has  enabled  the 
observer  to  form  a  belief  or  judgment  thereon.  Col,  Glenn  had  known 
prisoner  for  several  years,  though  not  intimately  ;  had  met  with  him  in 
the  last  three  days  before  his  arrest  by  Webb;  learned  from  him  that 
he  was  p.bout  going  to  New  York,  having  engaged  to  travel  for  a  house 
in  that  city ;  always  considered  him  sane,  and  a  man  of  more  than 
ordinary  intelligence. 

Before  dismissing  finally  this  fourtli  exception,  upon  which  1  am  luLy 
conscious  of  having  occupied  too  much  time  already,  I  would  suggest 
liiat  it  does  not  fairly  represent  the  testimony  of  Glenn  and  Hayden. 
Their  testimony,  when  taken  altogether,  is  wholly  unexceptionable, 
(ilenn,  for  instance,  says,  "prisoner  from  his  appearance  had  been 
drinking."  And  Hayden  upon  his  cross-examination,  swore  that, 
"although  he  did  not  see  Choice  drinking,  yet  he  judged,  from  his 
manner  and  appearance,  that  he  had  been  drinking ;  had  seen  him  fre- 
liuently  in  that  condition  before. "  By  reading  the  testimony,  it  will  be 
M'en  that  expressions  similar  to  that  excepted  to  abounds  on  every 


Walker,  14 


1  Potts  V.  House,  6  Ga.  324 ;  Walker  v.  Walker.  U  Ga.  242 ;  Bryan  v.  Walker ,  20  Ga.  480; 
(joodwyn  v.  Goodwyn,  20  Ga.  600. 


544 


DRUNKENNESS. 


Clioice  V.  State. 


page  of  it.  Tlie  witness  Gregory  says:  "Saw  prisoner  a  short  time 
before  lie  left  Rome  for  Atlanta;  hail  been  drinking  several  days  ;  does 
not  know  that  lie  was  drinking;  was  acting  like  a  man  who  had  been 
drinking."  Agiiin  by  the  samo :  ''Thought  at  the  time  he  left  Rome, 
the  exciting  cause  of  prisoner's  insanity  was  liquor. "  Echols  testified: 
"  Prisoner  appeared  to  be  drinking  ;  witness  supposed  him  to  be  drunk." 
Bartlett  sworn  :  '' Hid  seem  like  a  drunken  man."  After  such  expres- 
sions as  these,  selected  almost  at  random  fnmi  the  answers  of  the 
prisoner's  witnesses,  it  would  seem  ratiier  captious  to  object  to  the 
statements  of  Gleiui  and  Ilayden  that  the  prisoner  "  appeared  to  be 
drinking."  Such  impressions  both  in  ordinary  life  and  in  the  courts, 
convey  to  the  mind,  with  suilicient  certainty  the  condition  of  a  person, 
so  as  to  enabli'  one  to  pronounce  a  decision  thereon,  with  a  reasonable 
assurance  of  its  truth.  Reall}'  no  other  rule  is  practicable.  If  the  wit- 
ness must  be  confined  to  a  simple  narration  of  facts  ;  how  the  person 
leered  or  grinned,  how  he  winked  his  eyes  or  squinted,  how  he  wagged 
his  head,  etc.,  all  of  which  drunken  men  do,  you  shut  out,  not  only  the 
ordinary,  but  the  best  mode  of  obtaining  truth. 

We  reiterate  then,  what  we  Inive  said  from  the  first,  —  that,  legally 
and  philosophically  considered,  there  is  no  merit  in  this  objection.  And 
in  the  case  before  us  what  benefit  would  it  be  to  the  cause  of  the  ac- 
cused to  exclude  this  truth?  Did  not  Choice  himself  state  to  D.  II. 
Branan,  when  sober  and  sane,  that,  "  he  was  drinking  that  night;  that 
Webb  knew  that  he  was,  and  ought  not  to  have  treated  him  so?"  Why 
I  ask,  should  Mr.  Webb  know  it,  any  more  than  Glenn  and  Ilayden, 
except  from  his  conduct  and  appearance?  But  all  the  proof  shows  that 
such  was  his  condition  the  night  before  the  homicide  was  committed. 

5.  In  the  next  place,  it  is  complained  that  when  the  State  had  closed 
its  rebutting  testimony,  the  defendant  reintroduced  Dr.  H.  W.  Brown 
and  Dr.  W.  F.  Westmoreland  to  prove  that  the  additional  facts,  proven 
in  the  rebutting  testimony,  did  not  change  their  opinions  of  the  insanity 
of  the  prisoner  at  the  time  of  the  killing.  Each  witness  stated  that  he 
did  hear  some  of  the  witnesses  in  rebuttal ;  when  the  defendant  moved 
these  facts  be  read  ti  them  from  the  evidence  as  taken  down,  which  the 
cjurt  would  not  allow  to  be  done.  To  this  assignment  of  error  the 
court  adds:  "  This  motion  was  made  as  to  Dr.  Westmoreland,  who 
stated  that  he  was  present  while  the  witnesses  were  being  examined, 
b  it  did  not  hear  all  their  testimony.  I  had,  at  the  request  of  defend- 
ant's counsel,  permitted  portions  of  the  testimony  to  be  read  over  in  the 
hearinor  of  the  medical  witnesses  as  a  foundation  for  their  further  exam- 
ination;  and  refused  to  allow  it,  any  further,  stating  that  ccusel  might 


OPINIONS   OK  EXPEUTS,    HOW   GH  EN 


545 


Grades  of  Murder, 


short  time 
(lays ;  does 
)  liiui  been 
left  Rome, 
Is  testified : 
be  drunk." 
ich  expres- 
*Ms  of  tlie 
ject  to  t!ie 
ared  to  be 
he  courts, 
'  a  i)erson, 
reasonable 
[f  the  wit- 
he person 
le  wagged 
>tonly  the 

at,  legally 
ion.     And 
of  the  ac- 
to  D.  H. 
ight;  that 
'?"     Why 
Hay  den, 
iliovvs  that 
imitted. 
ad  closed 
iV.  Brown 
;s,  proven 
e  insanity 
tl  that  he 
nt  moved 
which  the 
error  the 
md,  who 
xamined, 
f  defend- 
'er  in  the 
er  exam- 
sel  might 


state  the  facts  hypothctically,  and  ask  the  witnesses'  opinion  on  them." 
Wo  understand  the  law  to  be  this:  Medical  men  are  permitted  to  give 
their  oj)iiiion  as  to  the  sane  or  insane  state  of  a  person's  mind,  not  on 
tlieir  own  observations  only,  but  on  the  case  itself,  as  proved  by  other 
witnesses  on  the  trial.  And  while  it  is  improper  to  ask  an  expert  what 
is  his  opinion  upon  the  case  on  trial,  he  may  be  asked  his  opinion  upon 
a  similar  case  hypotiietieally  stated.  And  this  tlie  court  expressly 
offered  to  permit  the  defendant's  counsel. to  do.  What  moie  could  be 
asked?  The  judge  was  not  bound  to  read  or  suffer  to  })c  read,  the 
testimony  as  taken  down.  He  had  already  allowed  this  indulgt-nce, 
at  the  request  of  the  counsel ;  still  it  was  a  matter  of  favor  and  not  of 
right. 

I  shall  for  the  present,  pretermit  the  sixth,  seventh,  eighth,  ninth  and 
tenth  grounds  of  error,  and  consider  them  together  hereafter,  in  connec- 
tion with  the  fifteenth  and  sixteenth  assignments. 

().  The  next  error  which  I  shall  discuss,  is  the  eleventh  ground  in  the 
motion  for  a  new  trial ;  because  the  court  charged  the  jury,  that  they 
should  not  find  tlie  prisoner  guilty  of  any  grade  of  homicide  l)elow mur- 
der, and  that  he  was  guilty  of  murder  or  not  guilty  at  all.     The  ground 
is  not  correctly  stated  in  the   motion  for  a  new  trial,  but  differs  in  the 
material  point  from  the  charge  as  given  to  the  jury;  and  this  discrep- 
ancy illustrates  the  propriety  of  the  view  expressed  in  the  beginning  of 
this  opinion  upon  the  preliminary  question.     Judge  Bull  would  have 
been  justified  in  refusing  the  motion  for  a  new  trial  upon  this  gioiind, 
because  it  does  not  state  correctly  his  charge  given.     Instead  of  saying 
to  the  jury,  by  way  of  direction,  that  they  should  not  find  the  prisoner 
guilty  of  any  grade  of  homicide  below  murder,  and  that  he  was  guilty  of 
UHuderor  not  guilty  at  all,  the  charge  was  this:   "  There  are  several 
grades  of  homicide  lecognized  by  the  law,  involving  different  degrees  of 
punishment;  such  as  murder,  voluntary  and  involuntary  manslaughter, 
and  justifiable   homicide.     The  defendant  in  this  case  is  indicted  for 
murder,  and  in  the  opinion  of  the  court  there  can  be  do   intermediate 
verdict  between  that  of  guilty  of  murder,  and  that  of  not  guilty  ;  and 
it  is,  therefore,  unnecessary  to  charge  you  on  the  minor  grades   of 
liomicile."     In  the  one  case,  his  charge  is  in  the  form  of  a  direc- 
tion ;  in  the  other  it  is  the  expression  of  an  opinion  merely,  and  for 
that  reason,  declining  to  instruct  the  jury  as  to  the  minor  grades  of 
homicide,   but  at  tlie   same   time   leaving  the  jury  untrammelled  by 
his  judicial  fiat. 

And  we  concur  fully  in  opinion  with  the  presiding  judge,  that  the 
killing  was  murder,  or  excusable  on  account  of  the  insanity  of  the  ac- 
33 


540 


OKI  NKEXXESS. 


("Iioici;  r.  State. 


cused.  If  Wra.  A.  Choice  was  sufficiently  rational  to  be  criminally  re- 
sponsible for  his  acts,  the  killing  of  Calvin  Webb,  was,  in  the  eye  of  the 
law,  murder  without  provocation,  and  without  one  mitigating  circum- 
stance ;  if  insane,  he  was  entitled  to  a  verdict  of  accpiittal ;  and  there 
can  be  no  intermediate  ground.  And  for  the  court  to  have  charged  the 
jury  as  to  manslaughtei',  would  have  been  foreign  from  the  case  made 
by  the  jjleadings  and  the  proof.  No  such  defence  was  set  up  for  the 
accused;  no  such  request  was  made  of  the  court.  In  Bond  v.  State^^ 
this  court  held,  that  it  was  not  error  to  iefuse  or  omit  to  give  in  charge 
to  the  jury  portions  of  the  Penal  Code,  which  have  no  application  to 
tlie  issue  submitted  upon  the  pleadings  and  proof.  And  the  court  in 
that  case  say:  "  We  ask  wiiat  had  the  law  of  manslaughter  to  do  with 
this  case  ?  "  What  a  mocker}-  and  farce  for  the  presiding  judge  to  have 
instructed  the  jury  as  to  involuntary  manslaughter!  And  yet  he  is 
charged  with  "manifest  error"  in  omitting  to  add  this!  He  would 
have  been  guilty  of  manifest  folly  if  he  had.  Had  there  been  any  evi- 
dence in  the  case  before  us,  ui)on  which  the  jury  might  have  mitigated 
the  offence  from  murder  to  a  lower  grade  of  homicide,  it  would  have  been 
different.  There  was  not  a  scintilla  of  proof  to  that  effect.  "Without 
the  shadow  of  an  excuse,  Choice,  with  deliberate  aim,  shoots  down  an 
unoffending  citizen,  in  the  peace  of  the  State.  If  the  law  is  adminis- 
tered, his  life  must  atone  for  it,  if  he  be  su])ject  to  punishment;  if  he 
be  not,  it  is  fit  and  proi)er  that  he  go  free  altogether  as  would  the  infant 
and  the  idiot. 

7.  It  is  alleged  as  error  in  the  court,  that  it  refused  to  allow  the  defend- 
ant to  prove  by  Printup,  Hooper,  and  others  the  family  and  neighborhood 
reputation  of  prisoner,  as  injured  permanently  in  his  mind,  by  reason 
of  the  injury  he  had  received.  No  authority  is  produced  to  justify  the 
proof  of  a  particular  fact  by  general  reputation  —  a  fact,  too,  in  which 
tlie  public  were  not  concerned.  We  know  of  no  rule  which  would  allow 
the  introduction  of  this  kind  of  hearsay  testimony.  In  Wright  v. 
Talham,"  the  question  was  much  discussed,  whether  letters  addressed 
to  a  person  whose  sanity  was  in  issue,  were  admissible  to  prove  that  he 
was  treated  as  insane  by  the  writers  of  the  letters  ;  and  after  undergo- 
ing several  investigations  before  the  Court  of  the  King's  Bench  and  Ex- 
cheque  Chamber  it  was  finally  decided  by  a  large  majority  of  the  House 
of  Lords,  that  such  letters  were  inadmissible,  unless  connected  by  proof 
with  some  act  of  the  person  implicated,  in  regard  to  the  letters  them- 
selves or  their  contents. 


»  17  Ga.  m. 


1  Ad.  &  El.  3.  8. 


mm 


DiaXKEWESS  PLEADED    IN    DEFENCE. 


547 


Errors  Alleged  in  Instruction  of  Court. 


minally  re- 

!  eye  of  the 

iig  circuni- 

juul  there 

lunged  the 

eiise  matle 

up  for  the 

:  V.  State,^ 

3  in  charge 

ilicatioii  to 

le  court  in 

to  do  Willi 

Ige  to  have 

yet  he  is 

He  would 

!n  any  evi- 

I  mitigated 

[  have  been 

"Without 

3  down  an 

s  adminis- 

2nt;  if  he 

the  infant 

he  defend- 
^hborhood 
by  reason 
justify  the 
,  in  wliioh 
)uld  allow 
Wright  v. 
addressed 
7e  that  he 
undergo- 
1  and  Ex- 
;he  House 
I  by  proof 
ers  thcm- 


H.  The  sixtli  error  alleged  in  the  motion  for  a  new  trial,  is  because 
tiie  judge  failed  to  include  in  his  charge  to  the  jury,  the  law  on  tiie 
material  facts  proven  in  the  evidence,  and  insisted  on  in  the  argument 
of  counsel ;  and  especially  in  failing  to  charge  the  jury  whether  the  pris- 
oner was  or  was  not  responsible  for  crime,  if  by  reason  of  tiu!  injury  to 
his  brain  or  otherwise  (mark  that  expression ! )  he  was  aflllcted  with  the 
disease  called  oinomania,  and  by  reason  of  this  disease,  was  irnisistibly 
impelled,  by  a  will  not  his  own,  to  drink;  and  being  so  impelled,  did 
drink,  and  thus  became  insane  from  drink,  and  while  thus  insane,  he 
committed  homicide.  The  court  also  erred  in  not  charging  the  jury, 
that  if  they  believed  the  prisoner  had  suffered  by  injury  or  otiierwise 
(mark  that  again),  a  pathological  or  organic  change  in  the  brain  wiiich 
produced  the  disease  of  oinomania,  and  by  this  disease  was  irresistibly 
impelled  to  drink  liquor,  and  from  the  liquor  thus  drank  became  insane, 
and  while  thus  insane,  killed  deceased,  he  was  not  guilty  of  murder. 
And  — 

Seventhly,  because  the  court  erred  in  charging  the  jury,  that  if  the 
prisoner  labored  under  a  disease  of  the  brain,  which  did  not  render  him 
insane,  but  notwithstanding  the  disease,  knew  right  from  wrong  when 
sober,  and  then  drank  liquor,  which  produced  madness  or  insanity,  and 
killed  the  deceased,  he  was  not  guilty  of  murder. 

Eight'hly,  because  the  court  erred  in  refusing  to  charge  the  jury,  in 
language  or  substance,  as  requested  by  defendant's  counsel,  in  writing 
as  follows:  If  the  jury  believe  that  prisoner  was  insane  when  he  left 
Ivome  and  came  to  Atlanta,  and  continued  insane  until  he  killed  de- 
ceased, the  fact  that  he  drank  liquor  in  the  meantime  cannot  render  him 
liable,  but  he  must  be  acquitted  of  murder. 

Ninthly,  because  the  court  erred  in  charging  the  jury  that  insanity, 
produced  proximately  l»y  drunkenness  is  no  excuse  for  crime. 

Tenthly,  because  the  court  erred  in  charging  the  jury  that  insanity 
was  an  excuse,  unless  such  insanity  was  [)roduced  by  liquor. 

Fifteenthly,  because  the  court  erred  in  submitting  to  the  jujy  the 
question  of  drunkenness,  as  explanatory  of  his  conduct  at  the  time  of 
the  homicide ;  and  that  the  defendant  could  not  protect  himself  from 
the  responsibility  of  one  crime,  when  committed  during  insanity  pro- 
duced by  another  crime  voluntarily  assumed.     And  — 

Sixteenthly,  because  the  charge  of  the  court,  as  a  whole,  and  in  each 
part,  was  error,  in  that  it  submitted  to  the  jury  questions  not  made  by 
the  issues  and  the  facts,  and  did  not  submit  to  the  jury  the  questions 
made  by  the  issues  and  the  facts. 


M8 


DKLXKKXNKSS. 


Cliolce  V.  Statf, 


Now,  what  is  substantially  the  response  of  Judge  Bull  to  all  this? 
*•  I  will  not,  gcutlcinen  of  the  jury,  confuse  you  or  myself  by  attempting 
to  notice  all  these  learned  distinctions.  The  simple  rule  laid  down  by  the 
law  is,  that  if  a  man  has  capacity  and  reason  sufficient  to  enal)le  him  to 
distinguisli  between  right  and  wrong,  as  to  the  particular  act  in  question  ; 
if  he  has  knowledge  and  consciousness  that  the  act  he  is  doing  is  wrong, 
and  will  deserve  punishment,  he  is,  in  the  eye  of  the  law,  of  sound  mind 
and  memory,  and  consequently  the  subject  of  punishment.  For  the 
Code  declares  that  a  person  shall  be  considered  of  sound  mind  who  is 
not  an  idiot,  a  lunatic,  or  affected  by  insanity  ;  or  who  hath  arrived  at 
the  age  of  fourteen  years,  or  before  that  age,  if  such  person  knew  the 
distinction  between  good  and  evil.  But,  though  it  is  the  general  rule, 
that  insanity  is  an  excuse,  there  is  an  exception  to  this  rule,  and  that  is 
when  the  crime  is  committed  by  a  party  in  a  fit  of  intoxication,  though 
the  party  may  be  as  effectually  bereft  of  his  reason  by  drunkenness  as 
by  insanity  produced  by  any  other  cause.  For  drunkenness  shall  not 
be  an  excuse  for  any  crime  or  misdemeanor,  unless  such  drunkenness 
was  occasioned  by  the  fiaud,  artifice  or  contrivance  of  another.  Nor 
does  it  make  any  difference,  that  a  man  by  constitutional  infirmity, 
or  by  accidental  injur}'  to  the  head  or  brain,  is  more  liable  to  be  mad- 
dened by  liquor  than  another  man.  If  he  has  legal  memory  and  discre- 
tion when  sober,  and  voluntarily  deprives  himself  of  reason,  he  is 
responsible  for  his  acts  in  that  condition.  But  if  a  man  is  insane  when 
sober,  the  fact  that  he  increased  the  insanity  by  the  superadded  ex- 
citement of  liquor,  makes  no  difference.  An  insane  person  is  irrespon- 
sible, whether  drunk  or  sober." 

I  pause  to  remark  how  fully  does  this  concluding  proposition  meet 
the  eighth  ground  of  alleged  error  in  the  motion  for  a  new  trial,  to-wit : 
that  if  the  jury  believed  that  Cl^oice  was  insane,  when  he  left  Rome  and 
came  to  Atlanta,  and  until  he  killed  deceased,  then  the  fact  that  he 
drank  liquor  in  the  meantime  cannot  render  him  liable,  but  he  must  be 
acquitted  of  murder.  Certainly,  responds  the  judge  ;  for  an  insane  man 
is  irrespo!islbii ,  whether  drunk  or  sober? 

But  to  proceed  with  the  charge :  ' '  These  are  rules  for  determining 
the  question  of  insanity  and  the  degree  and  nature  of  irresponsibility  to 
the  law.  The  law  presumes  every  man  of  sound  mind  till  the  contrary 
appears,  and  the  burden  of  proof  is  on  the  defendant,  that  at  the  time 
of  the  commission  of  the  act,  he  was  not  of  sound  mind.  And  it  ought 
to  be  made  to  appear  to  a  reasonable  certainty,  to  your  reasonable 
satisfaction,  that  at  the  time  of  the  commission  of  the  act,  the  party  did 
not  know  the  nature  and  quality  of  the  act,  or  if  he  did,  did  not  know 


DliUNKEXNESS    XO   EXCUSE    FOR   CHIME. 


5411 


Admirable  discussion  by  ].iim|il<in,  C.  J. 


0  all  this? 
ittempting 
own  by  the 
l)le  him  to 

question ; 
;  is  wrong, 
Duufl  mind 
For  the 
nd  wiio  is 
arrived  at 

1  knew  the 
eral  rule, 
nd  that  is 
)n,  though 
ienness  as 

shall  not 
jnkeuness 
icr.  Nor 
inflrmit}-, 
>  be  mad- 
id discre- 
)n,  he  is 
sane  when 
idded  ex- 
irrespon- 

;ion  meet 
1,  to-wit: 
lome  and 
t  that  he 
must  be 
sane  man 

ermininsr 
iibility  to 
contrary 
the  time 
1  it  ought 
lasonable 
aarty  did 
lot  know 


the  act  'vas  wrong ;  and  it  devolves  upon  you  to  decide  whether  the 
defendant  has  by  proof  rebutted  this  legal  presumption  of  sanity.  If, 
after  mature  deliberation,  you  are  satisfied  beyond  n  doubt,  that  the 
prisoner  is  guilty,  you  will  find  so  ;  if  not,  you  will  find  him  not  guilty." 

Would  that  I  could  transcribe  this  admirable  ciiarge  entire.  For,  in 
our  judgment,  it  submits  to  the  jury,  full  and  fairly  the  law  upon  the 
only  questions  made  by  the  issues  and  the  facts  in  this  case. 

Whether  any  one  is  born  with  an  irresistible  desire  to  drink,  or 
whether  such  thirst  m.ay  be  the  result  of  accidental  injury  done  to  the 
brain,  is  a  theory  not  j'ct  satisfactorily  established.  For  myself  I 
capitally  doubt  whether  it  ever  can  be.  And  if  it  were,  how  far  this 
crazy  desire  for  liquor  would  excuse  from  crime,  it  is  not  for  me  to  say. 
That  this  controlling  thirst  for  liquor  may  be  acciuired  by  the  force  of 
habit,  until  it  becomes  a  sort  of  second  nature,  in  common  language,  I 
entertain  no  doubt.  Whether  even  a  long  course  of  indulgence  will 
produce  a  pathological  or  organic  change  in  the  brain,  I  venture  no 
opinion.  Upon  this^  proposition ,  however,  1  plant  myself  immovably ;  and 
f lom  it  nothing  can  dislodge  me  but  an  act  of  the  Legislature,  namely : 
that  neither  moral  nor  legal  responsibility  can  be  avoided  in  this  way. 
This  is  a  new  principle  sought  to  be  engrafted  upon  criminal  jurispru- 
dence. It  is  neither  more  nor  less  than  this,  that  a  want  of  will  and 
conscience  to  do  right  will  constitute  an  excuse  for  the  commission  of 
crime ;  and  that,  too,  where  this  deficiency  in  will  and  conscience  is  the 
result  of  a  long  and  persevering  course  of  wrong  doing.  If  this  doctrine 
be  true,  — I  speak  it  with  all  seriousness,  —  the  devil  is  the  most  irre- 
sponsible being  in  the  universe.  For,  from  his  inveterate  hostility  to 
the  author  of  all  good,  no  other  creature  has  less  power  than  Satan  to 
do  right.  The  burglar  and  the  pirate  may  indulge  in  robbing  and  mur- 
der, until  it  is  as  hard  for  an  Ethiopian  to  change  his  skin,  as  for  them 
to  cease  to  do  evil ;  but  the  inability  of  Satan  to  control  his  will,  to  do 
right,  is  far  beyond  theirs ;  and  yet,  our  faith  assures  us  that  the  fate 
of  Satan  is  unalterably  and  eternally  fixed  in  the  prison-house  of  God's 
enemies.  The  fact  is,  responsibility  depends  upon  the  possession  of 
will,  not  the  power  over  it.  Nor  does  the  most  desperate  drunkard, 
lose  the  power  to  control  his  will,  but  he  loses  the  desire  to  control  it. 
No  matter  how  deep  his  degradation,  the  drunkard  uses  his  will,  when 
he  takes  his  cup.  It  is  for  the  pleasure  of  the  relief  of  the  draught 
tliat  he  talces  it.  His  intellect,  his  appetite  and  his  will,  all  work  ration- 
ally, if  not  wisely,  in  his  guilty  indulgence,  and  were  jou  to  exonerate 
tlie  inebriate  from  responsibility,  you  would  do  violence  Ixjth  to  his 
consciousness   and  to  his  conscience ;  for  he  not  only  feels  the  self- 


550 


DRUNKENNESS. 


C'liolcf  V.  Stato. 


prompted  tise  of  every  rational  power,  involved  in  aceountability,  bnt 
lie  feels  also,  precisely  what  this  new  pliilosopliy  denies,  —  his  solemn 
and  actual  wrong-doing,  in  the  very  act  of  indnlgeiiee.  Converse  seri- 
ously with  the  greatest  drunkard  this  side  of  actual  insanity, — just 
compose  him,  so  as  to  reach  his  clear,  constant  experience,  and  he  will 
confess  that  he  realizes  the  guilt,  and  the-efore  the  responsibility'  of  his 
conduct.  A  creature  made  responsible  oy  (lod,  never  loses  his  respon- 
sibility, save  by  some  sort  of  insanity.  There  have  always  existed 
amongst  men  a  variety  of  cases,  wherein  tiie  will  of  the  transgressor  Is 
universally  admitted  to  have  little  or  no  power  to  dictate  a  return  to 
virtue.  But  mankind  have  never,  in  any  age  of  the  world,  exonerated 
the  party  from  responsil)ility,  except  when  they  were  considered  to  have 
lost  rectitude  of  intellect  by  direct  mental  alienation. 

Mr.  M.  N.  Bartlett  testified  that  prisoner  after  one  of  his  sprees,  would 
swear  that  he  would  quit  drinking,  and  be  stated  to  ISIr.  Wilkes,  that 
vicious  associations  would  lead  3'oung  men  to  drink ;  and  he  thought 
there  was  no  security  where  a  young  man  took  to  his  cups.  Here  was 
both  consciousness  and  conscience.  He  did  not  seek  to  shield  himself 
from  responsibility,  because  lie  had  lost  the  power  to  control  his  will, 
any  more  than  David  did  from  the  crime  of  "blood-guiltiness,"  because 
overpowered  l)y  his  lust,  he  had  caused  the  life  of  Uriah  to  be  sacrificed 
in  order  th.at  he  might  possess  himself  of  his  beautiful  wife. 

On  the  trial  of  Kleim,  before  Judge  Euwauds,  of  spiritual  rapping 
notoriety,  in  IS  to,  we  find  the  first  clear  legal  recognition  of  this  mural 
insanity  doctrine  —  a  doctrine  which  destroys  all  responsil)iiity  to 
human  and  divine  law ;  and  one  originating,  as  I  verily  believe,  in  an 
utter  misconception  of  man's  moral  and  physical  nature ;  an  offshoot 
from  that  Bohon  Upas  of  humanism,  which  has  so  pervaded  and 
poisoned  the  Northern  mind  of  this  country,  and  which,  I  fear,  will 
cause  the  gh^rious  sun  of  our  Union  to  sink  soon  in  the  sea  of  fratricidal 
blood !  And  this  is  the  doctrine  which  is  intended  to  be  covered  by  the 
term  "  or  otherwise  "  twice  repeated  in  the  sixth  ground  of  the  motion 
for  a  new  trial,  and  to  which  attention  was  dii-ected  by  the  words  in 
parenthesis,  in  copying  that  ground.  Had  the  court  been  requested,  in 
writing,  to  give  charges  upon  this  doctrine  favorable  to  the  prisoner  he 
ought  to  have  declined.  For  in  the  judgment  of  this  court  no  such 
principle  has  been  recognized  in  criminal  law,  whatever  may  be  the 
opinion  of  medical  writers  and  others  upon  the  subject. 

When  Choice  killed  Webb,  he  was  sober,  or  drunk,  or  insane.  If  he 
was  sober,  or  the  homicide  was  committed  in  a  mere  fit  of  drunkenness, 


CAPACITV   TO    COMMIT   CKIMK    AND   MARK    CONTKACTS. 


551 


Less  I{u(|uirv(l  lii  Former  Cumc. 


ability,  hut 
■  liis  solemn 
inverse  seri- 
iiity,  — just 
and  he  will 
)ility  of  liis 
Ills  rospoii- 
iiys  oxistod 
isfjressor  is 
a  return  to 
exonerated 
red  to  have 

rocs,  would 
'ilkes,  that 
lie  thought 

Here  was 
M  himself 
ol  his  will, 
,"  because 

sacrificec] 

al  rapping 
this  mural 
sil)ility  to 
eve,  in  an 
n  offshoot 
itled  and 
fear,  will 
fratricidal 
ed  by  the 
he  motion 
words  in 
nested, in 
'isoner  he 
t  no  Bucli 
»y  be  the 

le.     If  he 
okenness, 


which  is  no  excuse  for  crime,  in  cither  of  these  events,  the  offence  was 
confessedly  murder.  But  his  defence  is,  thai  he  was  insane.  It,  then, 
l)ccomes  important  to  inciuire,  what  was  tiic  degree  of  insanity  under 
which  ho  lal)ored?  For  the  hvw,  acting  upon  the  assumption,  jjcrhaps, 
that  all  men  are  more  or  less  insane,  and  that  it  is  a  question  of  degree  only, 
has  established  a  standard  or  test  by  which  courts  are  to  be  governed  in 
the  trial  of  criminal  cases. 

Judge  Blll  ciiarged  the  jury  tliat  the  rule  was  this :  that  "  if  a  man 
has  capacity  and  reason  sutlicient  to  enalde  him  to  distinguish  be- 
tween right  and  wrong,  as  to  the  particular  act  in  question  ;  if  he 
has  knowledge  and  consciousness,  that  the  act  ho  is  doing  is  wrong, 
and  will  deserve  punishment,  he  is  in  the  eye  of  the  law,  of  sound  mind 
and  memory,"  and,  therefore  criminally  responsible  for  his  acts.  Did 
he  stale  the  rule  correctly?  This  must  be  decided  b^' authority — to 
which  I  must  say,  very  little  reference  has  been  made  in  tlie  argument  — 
and  not  by  the  speculations  of  Kay  and  "Winslow,  Bucknill  and  Tuke, 
and  other  medical  writers,  however  ingenious  they  may  be. 

And  it  is  worthy  of  notice  that  a  less  degree  of  capacity  is  required 
in  criminal  cases  than  in  civil  contracts.  It  may  be  an  anomaly,  still, 
this  difference  was  distinctly  maintained  in  Bellingham's  Case,  who 
was  tried  for  the  murder  of  the  Hon.  Spencer  Pcrcival,  in  1812,  and 
was  convicted  ;  by  Lord  Euskine  on  the  trial  of  Jlddjield  for  shooting  at 
the  King  in  1800,  Indeed  the  amount  of  capacity  which  would  make 
one  responsible  for  criminal  conduct,  would  stop  far  short  of  binding 
him  upon  a  civil  contract.  • 

Lord  IIai.k,  in  his  Pleas  of  the  Crown,'  says:  'There  is  a  partial 
insanity  and  a  total  insanity.  Some  persons  that  have  a  competent 
ijasun,  in  respect  to  some  subjects,  are  yet  under  a  peculiar  dementia  in 
respect  to  some  particular  discourses,  subjects  or  applications  ;  or  else 
t  is  partial  in  respect  to  degrees ;  and  this  is  the  condition  of  every 
man,  especially  melancholy  persons  who,  for  the  most  part  discover 
their  defect  in  excessive  fears  and  griefs,  and  yet  are  not  wholly  dcsti- 
t  ite  of  the  use  of  reason ;  and  this  partial  insanity  seems  not  to  excuse 
them  in  committing  any  offence,  for  its  matter  capital ;  for  doubtless, 
most  persons  that  are  felons  of  themselves  and  others,  are  under  a  de- 
gree of  partial  insanity,  when  they  commit  these  offences.  It  is  very 
difficult  to  define  the  invisible  line  that  divides  perfect  and  partial  in- 
sanity, but  it  must  rest  upon  circumstances,  duly  to  be  weighed  and 
considered  by  the  judge  and  jury ;  lest  on  the  one  side  there  be  a  kind 

'  p.  30. 


552 


DRUNKENNESS. 


riiuicc  V,  state. 


of  inburnaiiity  towards  the  defects  of  human  nature,  or  on  the  other, 
too  great  an  iiuhilgence  given  to  great  eriines.  Siu^h  a  person,  as 
laboring  under  melanelioly  distempers,  hath  yet,  ordinarily  as  great 
understanding  as  ordinarily  a  child  of  fourteen  years  hath,  is  such  a 
person  as  may  l)e  guilty  of  treason  or  felony." 

Arnold  was  tried  in  172.S  '  for  shooting -it  Lord  Onslow.  Inthiscnse, 
Mr.  Justice  TuAcY  laid  down  the  rule  to  he  '•  that  it  is  not  any  kind  of 
frantic  humor,  or  something  unaccountahlc  in  a  man's  actions  that 
points  him  out  to  be  such  n  madman,  as  is  exempted  from  ])unislr.nent ; 
it  must  be  a  man  that  is  totally  deprived  of  his  understanding  auu  mem- 
ory, and  doth  not  know  what  *  i  is  doing,  no  more  than  an  infant  — 
than  a  brute  or  a  wild  beast." 

The  trial  of  Jlatl/icld  took  place  in  the  King's  Bench  l)efore  Lord 
Kenyon  in  1800,  and  is  fully  reported  in  27  Howell's  State  Trials.- 
Some  of  the  grounds  occupied  by  Lord  Euskine,  and  in  which  the 
court  accpiiesced,  were  substantially : 

"  That  it  is  unnecessary  that  reason  should  be  entirely  subverted  or 
driven  from  her  seat,  but  that  it  is  sulllcient,  if  distraction  sits  upon 
it,  along  with  her,  hold  her  trembling  hand  upon  it,  and  frightens  lier 
from  her  propriety ;  that  there  is  a  difference  between  civil  and 
criminal  responsibility ;  thut  a  man  nffected  by  insanity  is  respon- 
sible for  his  criminal  acts,  where  he  is  not  for  his  civil ;  that  a  total 
deprivation  of  memory  and  understanding  is  not  requisite  to  constitute 
insanity." 

In  Bellingharu's  Case,  to  which  I  have  already  alluded,  and  which  is 
reported  in  1  Collinson  on  Lunacy,^  tried  in  1812,  Lord  Mansfield, 
charged  the  jury  that  "  the  single  question  for  them  to  determine  was, 
whether  when  he  committed  the  offence  charged  upon  him  he  had  suffi- 
cient understanding  to  d>stii\Tiiish  good  from  evil,  right  from  wrong ; 
and  that  murder  was  a  crime,  not  only  against  +he  law  of  God,  but 
against  the  law  of  his  cointry."  The  defendant  was  convicted  and 
executed,  notwithstanding  he  labored  under  many  insane  delusions,  as 
the  facts  in  the  case  show.  lie  determined  to  assassinate  the  premier, 
that  he  might  thus  secure  an  oi)portunity  of  bringing  his  imaginary 
grii-vances  before  the  country,  and  obtain  a  triumph  over  the  attorney- 
general.  And  the  test  applied  in  this  case  by  Lord  Mansfield,  of  the 
power  of  distinguishing  right  from  wrong,  has  ever  since  been  adopted 
as  the  only  one  to  mark  the  line  between  sanity  and  insanity,  responsi- 
bility and  irresponsibility. 


i8Hargr;ivi's.-;;;li'  Tv.iilv 


s  1).  1218. 


»  p.  650. 


TEST   OF    INSANITY 


r>y^ 


Tliu  KngllHh  Cases  Reviewed. 


the  other, 
)crsoM,  as 
■  as  great 
is  sucli  a 

I  this  case, 
y  kind  of 
-ions  that 
lish'.nciit ; 
iiiiii  nicra- 
iufant — 

3re   Lord 

a  Trials.'-' 
vhich  the 

>vorted  or 
sits  upon 
[htons  her 
civil  and 
I  respon- 
it  a  total 
onstitute 

which  is 

INSFIELD, 

line  was, 

lad  suffi- 

1  wrong ; 

iod,  but 

3tcd  and 

ions,  as 

)remier, 

aginary 

torney- 

,  of  the 

adopted 

^sponsi- 


Mr.  Justice  Lk  Blanc,  reiterated  the  test  prescribed  liy  I^-ord  Mans- 
KiKLi),  in  King  v.  Bolder.^  Lord  Lynkiiikst  did  tlic  same  tiling  in  the 
late  case  of  King  v.  ({fford,-  and  in  the  still  more  recent  case  of 
(Ireea  Smiths'-^  <>(  lurring  in  IH.'l?,  Rlr.  Justice  PAUicii  told  the  jury  that 
as  regards  tlie  effect  of  insiuiity  or  responsibility  for  crime  "it  is 
merely  necessary  that  the  party  sIdiiUI  liave  suHlcicnt  knowledge  and 
reason  to  discriminate  between  right  and  wrong."  With  one  other 
citation,  I  shall  conclude  tiiis  branch  of  the  discussion. 

In  1813,  took  place  the  trial  of  McNaghtcn  for  killing  Dnimmond, 
which  excited  thnuigli  England  a  great  degree  of  interest.  J.ord  Chief 
.lust ice  TisDALL  in  this  case  instructed  the  jmy  that,  before  convicting 
the  prisoner,  they  must  be  satistied  that  wlicn  committing  the  criminal 
act  he  had  that  competent  use  of  his  understanding  as  that  he  was  doing 
a  wicked  and  wrong  tiling;  that  he  was  sensible  it  was  a  violation  of 
ilie  law  of  Clod  and  man.  Tliis  trial  occasioned  tiie  submitting  of  cer- 
tain questions,  b3'the  House  of  Lords,  lo  fifteen  judges  (tliat  being  the 
iuiml)er,  instead  of  twelve  as  formerly)  with  a  view  to  eliciting  their 
opinions  in  regard  to  criminal  resi)onsibility.  Those  questions  and 
answers  were  designed  to  settle  the  law  of  England  on  the  subject. 

Question  1 :  Wliat  is  the  law  respecting  alleged  crimes,  committed  by 
persons  afflicted  with  insane  delusions,  with  respect  to  one  or  more  par- 
ticular subjects  or  persons;  as  for  insance,  when  at  the  time  of 
the  commission  of  the  alleged  crime,  the  accused  knew  he  was 
acting  contrary  to  law,  but  did  the  act  complained  of  with  tlieview  and 
umler  the  influence  of  some  insane  delusion,  of  redressing  or  avenging 
s  )nie  supposed  grievance  or  injury,  or  of  producing  some  supposed 
public  benefit?  Answer:  Tfie  ojjinion  of  the  judges  was  that,  not- 
withstanding the  party  committed  a  wrong  act  while  laboring  under  the 
idea  that  he  was  redressing  a  supposed  grievance  or  injury,  or  under 
the  impression  of  obtaining  some  public  or  private  benefit,  he  was  liable 
to  punishment.  Question  2  :  What  are  tlie  proper  questions  to  be  sub- 
mitted to  the  jury  when  a  person  alleged  to  be  affected  with  insane  de- 
lusions, resp.icting  one  or  more  particular  subjects  or  persons,  is 
charged  with  the  commission  of  a  crime  —  murder,  for  example  —  and 
insanity  is  cet  up  as  a  defence?  Answer:  Before  a  plea  of  insanity 
should  be  allowed,  luidoubted  evidence  ought  to  be  adduced  that  the 
accused  was  of  diseased  mind,  and  that  at  the  time  he  committed  the 
act  he  was  not  conscious  of  right  and  wrong.  Every  person  was  sup- 
posed to  know  what  the  law  was,  and,  therefore,  nothing  cotild  justify 


650. 


1  1  Collinson  on  Lunacy,  673. 
•«('.&  P.  168. 


•'  See  Btatement  of  the  rape  in  Taylor, 


513. 


554 


DRUNKENNESS. 


Choice  V.  State. 


a  wrong  act  except  it  was  clearly  proved  that  the  part}'  did  not  know 
right  from  wrong.  Question  3:  If  a  person,  under  an  insane  delusion 
as  to  existing  facts,  C()mn]i:s  an  offence  in  conseciuence  thereof,  is  he 
thereby  excused  ?  Answer :  If  the  delusion  were  only  partial,  the  party 
accused  was  equally  liable  with  a  person  of  sane  mind.  If  the  accused 
killed  another  in  self-defence,  he  would  be  entitled  to  an  acquittal ;  but 
if  the  crime  were  committed  for  any  supposed  injury  he  would  be  liable 
to  ti»e  punishment  awarded  by  the  laws  to  his  crime. 

The  charge  of  the  court,  then,  tested  by  a  full  review  of  the  Englisb 
cases  from  Lord  Hale  to  the  present  time,  and  with  which  all  the  best 
considerec'  American  cases  agree,  is  fully  sustained.  And  humanitar- 
ians should  deliberate  maturely  before  they  lend  their  aid  to  break  down 
a  rule  which  h;i9  received  the  sanction  and  approbation  of  the  wise  and 
good  for  centuries.  One  other  point  and  we  fire  done.  Was  the  ver- 
dict of  the  jury  contrary  to  the  evidence? 

9.  Under  the  act  of  1853-04,  it  is  not  only  the  privilege,  but  made 
the  imperative  duty  of  this  court,  to  express  an  opinion  upon  the  testi- 
mony in  this  case,  because  several  of  the  grounds  in  the  motion  for  a 
new  trial  are,  thK,t  the  verdict  was  contrary  to  and  decidedly  against 
the  weight  of  the  evidence.  I  have  carefully  examined  the  evidence 
again  and  again,  and  speaking,  as  it  were,  from  the  jury-box,  rather 
than  the  bench,  I  will  state  succinctly  the  conclusions  at  which  I  have 
arrived :  The  proof  has  utterly  failed  to  establish  that,  apart  from  liquor, 
the  a(!cident  of  1850  has  inflicted  any  permanent  injury  upon  the  brain 
of  the  accused.  During  the  eight  j-ears  which  intervened  betweeri  the 
accident  of  1850  and  the  homicide,  where  was  WiUiam  A.  Choice,  and 
what  was  his  miumer  of  hfe?  He  was  no  recluse,  but  from  Lis  educa- 
tion, social  position,  and  emplo3ments,  he  mingled  much  in  societv. 
lie  had  been  a  clerk  at  IVIilledgeville  ;  and  Dr.  Gordon,  in  his  testimou}', 
states  as  a  reason  wh^'  he  noticed  hini  while  there,  was  that  he  had  often 
heard  him  spoken  of  as  a  man  of  a  high  order  of  talents,  and  that  his 
prospects  were  bright  for  making  a  star  comodian.  Having  heard  such 
reports  often,  and  also  having  seen  his  name  favorabl}-  spokew  of  by 
the  press,  he  was  induced  to  exan)ine  him  critically.  There  were,  per- 
haps, few  men  of  his  age  more  generally  known.  "Where  are  all  his 
acquaintances  —  the  cloud  of  witnesses  that  might  have  been  brought 
forward  to  testify  to  his  insanity?  Not  to  distinct  facts,  these  miglit 
have  been  forgotten  ;  but  who  would  state  that  they  had  known  him  for 
years,  that  they  had  repeatedly  conversed  with  him,  and  heard  others 
converse  with  him,  that  ai)art  from  the  influence  of  liquor  and  when 
entirely  sober,  they  had  noticed  in  these  conversations  that  he  was  inco- 


CIIOIC  K    V.  STATK. 


555 


The  Evidence  lievkwed. 


id  not  know 
ane  delusion 
ereof,  is  he 
,al,  the  party 
the  accused 
quittal;  but 
jld  be  liable 

the  English 

all  the  best 

hunianitar- 

break  down 

lie  wise  and 

l^as  the  ver- 

i,  but  made 
3n  the  tcsti- 
lotion  for  a 
idly  against 
;he  evidence 
-box,  rather 
hich  I  have 
from  liquor, 
3n  the  brain 
between  the 
Choice,  and 
1  his  educa- 
in  societv. 
3  testimony, 
le  had  often 
md  that  his 
heard  such 
>okew  of  by 
}  were,  per- 
t  are  all  his 
icn  brought 
;hese  miglit 
>wn  him  for 
eard  others 
r  and  when 
le  was  inco- 


herent and  silly ;  that  when  wholly  free  from  the  use  of  stimulants,  he 
was  wild,  irrational,  and  crazy.  Some  few,  it  is  true,  have  spoken  ;  but 
where  are  the  five  hundred  who  keep  back  ?  On  the  contrary,  you  are 
met  at  every  step  in  the  evidence  with  such  expressions  as  the  f  oliowino- : 
"Think  prisoner  was  drunk  at  tlie  time  of  the  difliculty  in  the  bar- 
room."    "Has  known   Clioice  intimately  for  several  years,  and  ccm- 

siders  him  a  man  of  promise  and  talent,  but  subject  to  eccentricities 

never  seen  him  when  he  considered  him  insane;  witness  thinks  him, 
when  drinking,  the  most  dangerous  man  he  ever  saw.  lias  never  seen 
him,  only  when  under  the  influence  of  liquor,  insane."  "Mr.  Choice 
is  a  very  violent  man  when  drinking."  "  Wlien  i)risoner  threatened  to 
kill  witness,  three  or  four  years  ago,  he  had  been  drinking  at  the 
time — ,vhen  under  the  influence  of  liquor  he  is  a  very  violent  man," 
The  proof  of  insanity,  apart  from  liquor,  in  this  case,  is  too  meagre  to 
raise  a  reasonable  doubt  as  to  the  capacity  of  the  accused  to  commit 
crime,  "Who  cannot  count  from  one  to  twenty  men  within  tiie  cirt  le  of 
their  acquaintance,  wlio  never  suffered  any  injury  on  the  head  or  else- 
where, and  whose  rationality,  except  when  drinkinir,  was  never  ques- 
tioned, concerning  whom  more  proof  could  be  adduced  to  convict  them 
of  insanity,  than  the  record  in  this  case  furnishes  to  prove  the  insanity  of 
Choice?  It  may  be  that  owing  to  the  accident  of  ]8r)0,  the  defendant 
was  not  only  more  easily  affected  by  liquor,  but  also,  that  he  had  less 
power  to  control  his  appetite  for  drink.  Stdl  this,  if  true,  would  not 
excuse  him.  A  man  may  have  i)artial  or  general  insanity,  and  that, 
too,  from  blows  upon  the  head,  yet  if  he  drink  and  bring  on  temporary 
fits  of  drunkenness,  and  while  under  the  influence  of  spirits  takes  life, 
he  is  responsible  "There  are  men,"  says  Mr.  Justice  Stoi.'y,  "  soldiers 
who  have  been  severely  wounded  in  the  head  especially,  who  well  know 
tliat  excess  makes  them  mad ;  but  if  such  persons  wilfully  deprive 
themselves  of  reason,  they  ought  not  to  be  excused  of  one  crime  by 
the  voluntary  perpetration  of  another."  ^ 

It  is  insisted  particularly  that  the  finding  was  against  the  medical 
testimony  in  this  case ;  without  repeating  it,  I  would  state  generally, 
that  the  strength  of  this  evidence  is  greatly  overstated  in  the  argument, 
as  tl'e  brief  of  it  will  show.  As  it  respects  this  species  of  testimony 
generally,  the  doctrine  is  this:  It  is  competent  testimony,  and  where 
thecx^.  rience,  honesty  and  iini)artially  of  the  witnesses  are  undeniable,  aH 
in  this  case,  the  testimony  is  entilled  to  great  weight  and  consideration. 
Not  that  it  is  so  authoritative  that  the  jury  are  !)()und  to  be  governed  by 

■  United  Staten  v.  Urew,  5  Alusun.  iH. 


556 


DRUNKENNESS. 


Choice  V.  State. 


it,  —  it  is  intended  to  aid  and  assist  the  jury  in  coming  to  correct  conclu- 
sions in  the  case.  With  somothing  short  of  a  hundred  more  opinions  to 
write  out  during  the  recess,  to  say  nothing  of  numerous  other  pressing 
engagements,  we  have  l)estowed  upon  this  case  all  the  time  and  con- 
sideration at  our  command.     And  what  is  the  case? 

Choice  comes  down  from  Rome  to  Atlanta.  He  engages  in  a  drunken 
debauch,  as  has  been  the  habit  and  manner  of  his  life.  Webb,  the 
deceased,  a  constable  serves  bail  process  upon  him  for  ten  dollars. 
Choice  is  greatly  incensed,  and  such  was  the  sense  of  injury  which  he 
felt  that  he  si)oke  complainingly  of  Webb's  treatment  to  Brannan,  when 
he  was  brought  up  from  ^Milledgoville,  the  April  afterwards.  Mr.  Glenn 
who  happened  to  be  present,  interposed  his  kind  offices,  and  agreeing  to 
pay  the  debt  the  parties  separated,  while  Choice  professed  to  acquiesce 
in  the  suggestion  of  Mr.  Glenn  that  the  officer  had  done  nothing  more 
than  his  duty.  It  is  clear  that  he  was  still  writhing  under  the  indignity, 
as  he  felt  it  to  be,  that  had  been  offered  him.  He  said  to  Thos.  Gannon 
"  What  do  you  suppose  that  damned  ])ailiff  done?  He  arrested  me  for 
ten  dollars,  and  would  not  take  my  word  for  the  amount;  "  and  after 
soliciting  a  knife  or  a  pistol,  he  said  he  would  cut  the  bailiff's  heart  or  Dr. 
Dowsing's, — tiie  creditor's  heart.  Rising  next  morning  from  the 
carouse  of  the  overnight,  he  commenced  drinking  again,  and  coming  up 
with  Webb,  who  was  walking  between  tiie  Trout  House  and  Atlanta 
Hotel  towards  the  depot,  — he  fires  a  pistol  at  him,  and  thus  takes  his 
life.  The  only  thing  said  by  deceased  was  "Don't  shoot,"  and  the 
only  words  uttered  b}'  Choice  were,  '•  Damned  if  I  don't  kill  you  any- 
how." When  Webb  staggered  and  fell.  Choice  started  off,  saying, 
"  You  will  take  that,"  or  "  Damn  you  take  that." 

In  his  interview  with  Mr.  Wilkes  in  the  calaboose,  Choice  ascribes  his 
situation  to  drink,  which  made  him  a  fool  and  a  madman  ;  but  made  no 
allusion  to  any  permanent  injury  to  his  brain  in  1850.  Choice  under- 
stood himself  much  better  than  the  intelligent  witnesses  who  testified, 
and  this  whole  record  demonstrates  to  my  mind  that  he  was  right. 
Unless  his  offence  can  be  excused  or  mitigated  by  the  plea  and  proof  of 
drunkenness  the  verdict  of  the  jury  was  fully  justified  by  the  facts. 
The  prisoner  has  had  a  fair  trial.  The  law,  in  the  judgment  of  this 
court,  has  been  correctly  administered,  and  when  we  have  said  this,  our 
duty  is  discharged. 

Whereupon  it  is  considered  and  adjudged  by  the  court,  that  the 
judgment  of  the  court  below  be  affirmed. 


rrect  conclii- 
■e  opinions  to 
her  pressing 
ae  and  con- 

in  a  drunken 
Webb,  the 
ten  dollars, 
ry  which  lie 
annan,  when 
Mr.  Glenn 
i  agreeing  to 
to  acquiesce 
otliing  more 
le  indignity, 
lios.  Gannon 
.'sted  me  for 
"  and  after 
heart  or  Dr. 
\g  from  the 
J  coming  up 
md  Atlanta 
IS  takes  his 
,"    and  the 
11  you  aiiy- 
3ff,  saying, 

ascribes  his 
ut  made  no 
alee  under- 
10  testified, 

was  right. 
nd  proof  of 

the  facts, 
lent  of  this 
id  this,  our 

t,  that  the 


DRUNKENNESS    ITO    EXCUSE    FOR    CRIME. 


557 


Shannahau  v.  Commonwealth. 


VOLUNTARY  DRUNKENNESS    DOES   NOT  MITIGATE   CRIME. 

Shannahan  V.  Commonwealth. 

[8  Bush.  4(!3;   8  Am.  Rep.  4G5.] 
In  the  Court  of  Appeals  of  Kentucky,  1871. 

Hon.  William  S.  Phyou,  Chvf  Justice . 
"    MouDECAi  R.  Hardin,  \ 

'-  Judges. 


Belvaku  J.  Pp:tek.s, 
William  Lindsay, 


1.  Tbe  voluntary  drunkenness  of  a  murderer  neither  cxcu.ses  the  crime  nor  mitigates 

the  punisbmeut. 

2.  One  in  a  state  of  voluntary  intoxication  is  subject  to  ttie  same  rules  of  conduct  and 

principles  of  law  as  a  sober  man,  and  where  a  provocation  i^;  olfered,  and  the  one  oflfer- 
ing  it  is  killed,  if  it  mitigates  the  offence  of  the  man  drunk,  it  should  mitigate  the  offence 
of  the  man  sober. 

3.  On  the  question  of  malice  evidence  of  the  prisoner's  intoxication  is  admissible. 

A.  H.  Field,  for  appellant. 

John  Rodman.,  Attorney -General,  for  appellee. 

Appeal  from  a  sentence  and  conviction  under  an  indictment  for 
murder.     The  opinion  states  the  case. 

Pryok,  C.  J.^The  appellant,  Matthew  Shannahan,  was  indicted  in 
the  Jefferson  Circuit  Court,  for  the  murder  of  C.  W.  Montgomery,  and 
under  the  indictment  w\as  tried  by  a  jury  and  found  guilty  as  charged, 
and  by  the  judgment  of  that  court  condemned  to  be  hung,  and  from 
tliat  judgment  he  prosecutes  this  appeal. 

It  will  be  necessaiy  to  recite,  in  substance,  the  facts  proven  upon  the 
trial  in  order  to  determine  the  propriety  of  the  refusal  by  the  court 
below  to  give  certain  instructions  asked  for  by  counsel  for  the  appellant, 
and  the  giving  of  instructions  in  lieu  thereof. 

It  appears  from  the  evidence  that  the  appellant,  on  the  22d  of 
August,  in  the  year  1870,  about  twelve  or  one  o'clock  of  that  day,  an- 
nounced his  intention  of  going  to  see  Montgomery  (the  deceased)  for 
tbe  purpose  of  getting  his  (appellant's)  stone-hammer,  saying  "  that 
^Montgomery  had  taken  it  away."  The  appellant  had  been  informed 
that  the  deceased  was  working  for  a  man  by  the  name  of  Shanks.  He 
went  to  the  grocery  of  Shanks  and  inquired  for  Montgomery,  and  was 
told  that  he  was  in  the  woods  at  work  some  half  mile  d'stant  from  the 
house.  While  at  Shank's  he  took  a  dram,  purchased  a  quart  of  whiskey, 
and  started  in  the  direction  of  the  woods  where  Montgomery  was  at 


558 


DKLNKENNKISS. 


Shuunuhitn  v.  Coiiiiiiuinvcalth. 


labor,  aiul  upon  his  arrivsil  tluTo  found  iMonlsroniery  and  a  man  by  the 
name  of  Applegatc  at  work.  The  aijpelhint  and  the  deceased,  as  the 
witness  Applej^ate  states,  met  each  other  in  a  friendly  manner,  and 
engaged  in  conversation  relative  to  deceased  having  previously  worked 
for  him,  and  appellant  offered  to  emi)loy  him  again.  The  three  drank 
the  quart  of  whiskey,  and  late  in  the  evening  returned  to  Shank's  gro- 
cery, where  they  took  another  drink  and  had  the  quart  bottle  refilled. 
A pplegate  left  them  late,  and  says  that  when  he  left  them  they  were 
still  friendly  and  drinking.  The  appellant  and  deceased  left  Shank's 
house  after  night,  and  went  in  company  to  Brown's  residence,  where 
deceased  was  boarding,  and  reached  there  about  half  past  eight  o'clock 
at  night.  From  Shank's  house  to  Brown's  is  a  distance  of  about  five 
hundred  ynnls.  Upon  their  arrival  at  Brown's  he  refused  to  permit  the 
appellant  to  remain  all  night;  but  upon  the  suggestion  of  the  deceased, 
that  if  he  persisted  in  refusing  he  w»»uld  sleep  with  api)ellant  in  the 
stable,  Brown  consented  that  the  appellant  might  remain  all  night. 
The  two  then  entered  the  family  room  of  Brown,  placed  the  quart 
bottle  of  whiskey  on  the  mantle,  with  about  one-third  of  its  contents 
gone,  and  conversed  with  Brown  fifteen  or  twenty  minutes.  They  then 
left  b^'  a  stairway  for  their  bed-room  upstairs,  and  when  they  reached 
the  floor  above  Brown  says  he  heard  a  scutlle  and  fall,  and  JMontgomeiy 
cried  out,  '"You  have  killed  vie."  He  hurried  to  the  room  and  nut 
the  appellant  coming  down  the  stairway  with  a  knife  in  his  hand  and 
witness  ordered  him  not  to  leave.  He  made  his  escape  through  the 
back  door  leading  to  the  rear  of  witness'  premises,  and  was  in  a  few 
<iay8  afterward  arrested.  The  witness  found  IVIontgomery  badly  cut 
upon  the  arms,  legs  and  other  parts  of  the  body,  and  his  entrails  pro- 
truding. He  lived  but  a  short  time ;  stated  that  Shannahan  had  killed 
him  without  cause.  The  deceased  had  no  weapons  upon  his  person,  and 
so  far  as  tlie  circumstances  indicate,  offered  no  resistance.  The  evi- 
dence establishes  the  fact  that  the  appellant,  when  sober,  is  a  quiet, 
peaceable,  and  industrious  man,  but  when  drunk  is  boisterous,  unruly, 
and  always  when  in  that  condition  ready  to  attack  friend  or  foe.  There 
is  no  doubt  from  the  proof  but  that  both  to.e  appellant  and  the  deceased 
were  under  the  influence  of  liquor  at  the  *  ne  of  the  killing. 

The  appellant's  counsel  relies  in  his   argument  upon  five  different 
grounds  for  the  reversal  of  this  case  :  — 

1.  Because  the  verdict  is  against  the  evidence. 

2.  An  improper  effort  upon  the  part  of  the  attorney  for  the  Common- 
wealth to  convict  the  accused. 


INTOXIf'ATIOX    AS    A    DIM-'KNCE. 


r)r)[) 


lustriictions  Given  iiiul  Refused. 


man  by  the 
sed,  as  the 
lanner,  and 
sly  worked 
lirec  drank 
ank's  gro- 
tle  refilled, 
they  were 
!ft  Shank's 
nee,  where 
?ht  o'cloek 
about  five 
permit  the 

deceased, 
ant  in  the 

all  nifiht. 

tiie  quait 
s  contents 
They  then 
!y  reached 
)ntgomei'y 
n  and  met 

hand  and 
rough  the 
s  in  a  few 
l>.'V(lly  cut 
Irails  pro- 
lad  killed 
rson,  and 

The  evi- 
J  a  quiet, 
I,  unruly, 
!.  There 
deceased 

different 


.ominon> 


;{.  That  the  special  judge  had  no  power  to  pronounce  tlie  judgment 
upon  the  verdict. 

4.  That  the  court  misinstructcd  the  jury. 

5.  That  the  court  refused  properly  to  instruct  the  jury. 

This  court  has  no  power  to  revise  a  judgment  of  convictions  for 
citiier  the  first,  second  or  third  grounds  relied  upon  l)y  counsel,  and  the 
only  question  i)resented  by  the  record  is,  did  the  c(jurt  err  in  refus- 
ing tiie  instructions  asked  for  by  appellant's  counsel,  and  in  giving 
other  instructions  in  lieu  thereof?  Counsel  insists  that  the  instruc- 
tions given  in  this  case  are  vmltitudinoua,  mixlcdding  and  inappli- 
cable. While  instructions  given  to  a  jury  upon  such  an  issue  as  is  here 
presenteil  siiould  be  as  plain  and  concise  as  i)ossible,  and  no  more  in 
number  than  the  ease  requires,  still  the  defendant's  counsel  asked 
twenty-two  instructions,  and  the  court,  in  lieu  of  and  in  explanation  of 
tliose  instructions,  gave  about  one-half  the  number,  the  most  of  which 
contain  the  law  of  the  case,  and  were  certainly  not  prejudicial  to  the 
appellant. 

The  effort  upon  the  i)art  of  the  defence,  fiom  the  legal  propositions 
submitted  to  the  jury,  was  to  reduce  the  offence  from  murder  to  man- 
slaughter by  reason  of  apitellant's  intoxicated  condition  at  the  time  of 
the  killing.  The  jjropriety  of  the  instructions  on  this  branch  of  tlie 
lase  will  alone  be  considered,  as  all  the  other  instructions  given  by 
the  court  are  substantially  correct. 

Instruction  No.  9,  given  by  the  court  in  behalf  of  the  ap[)ellant  is  as 
folh)ws:  "  That  if,  at  the  time  of  the  alleged  commission  of  the  crime 
charged  in  the  indictment,  the  accused  was,  from  sensual  gratification 
find  social  hilarity,  and  not  with  the  design  of  committing  a  crime,  under 
tlie  influence  of  whiskey  to  such  an  extent  as  to  seriously  interfere  with 
or  deprive  him  of  reason,  they  should  find  him  not  guilty  of  murder; 
hut,  if  guilty  at  all,  of  voluntary  manslaughter,  unless  they  believe  from 
the  evidence  he  drank  with  the  intention  of  committing  the  deed  with 
which  he  is  charged.     In  which  case  he  would  be  guilty  of  murder." 

Instruction  No  10  is  as  follows:  "  If,  at  the  time  of  the  killing,  the 
defendant  was  intoxicated  from  the  use  of  whiskey,  and  said  intoxica- 
tion was  not  feigned  or  simulated,  nor  contracted  with  the  intention  of 
committing  the  deed,  and  the  killing  was  prompted  by  the  intoxication 
tilonc,  and  except  for  it  could  not  have  occurred,  you  should  find  him 
not  guilty  of  murder;  but  if  guilty  at  all,  of  voluntary  manslaughter." 

The  counsel  for  appellant  insists  that  the  following  instruction  should 
have  been  given  without  containing  any  of  the  qualifications  embraced 
in  instructions  Nos.  9  and  10,  viz. :   "  That  if,  at  the  time  of  the  killing. 


5(10 


DRUNKENNESS. 


Shaunalmn  v.  Coniinomvealth. 


ihe  defendant  iccis  intoxicated  from  the  nae  ofivhiskey,  and  the  killing  was 
]>romptetl  by  it  alone,  and  except  for  it  would  not  have  occurred,  you 
should  find  the  accused  not  guilty  of  murder;  but,  if  guilty  at  all,  of 
voluntary  manslaughter/' 

In  the  opinion  of  this  court,  if  drunkenness  can  be  pleaded  in  excuse 
for  crime,  or  oy  way  of  mitigating  the  punishment  on  account  of  crime, 
we  perceive  no  vaUd  reason  for  withliolding  from  the  consideration  of 
the  jury  such  an  instruction  as  asked  for  by  the  counsel  for  the  appel- 
lant in  a  case  like  this. 

It  was  a  settled  rule  of  the  common  law  that  voluntarj'  drunkenness 
excused  no  man  from  the  commission  of  crime ;  and,  instead  of  palliat- 
insr  the  offence,  it  was  held  as  an  aggravation  of  the  wrong  committed. 
yjt  the  more  recent  American  authorities  upon  this  subject  have 
"'  relaxed  this  rule,  and  gone  so  far  as  to  establish  as  law  tlio 
reverse  of  the  proposition,  viz. :  "  That  voluntary  drunkenness,  instead 
of  r.frgravitJng  the  offence,  is  such  a  mitigating  fact  as  to  lessen  the 
punisiiiflent ,  '  and  upon  an  indictment  for  murder,  in  the  absence  of 
any  proof  snowing  that  intoxication  was  resorted  to  in  order  to  enable 
the  party  charged  to  take  human  life,  the  fact  of  dmnkenness  itself  \s 
held  suflicicnt  to  reduce  the  crime  from  murder  to  manslaughter.  By 
the  statute  law  of  Kentucky,  drunkenness  is  made  an  offence  for  which 
a  penalty  may  be  imposed  ;  and  although  drunkenness  is  in  violation  of 
good  morals  :is  well  as  the  law  of  the  land,  it  may  be  proper,  out  of 
charity  to  the  passions  of  men  and  their  inability  to  control  in  many 
instances  either  their  passions  or  appetites,  not  to  adhere  to  the  vigorous 
rule  of  the  common  law,  and  add  to  the  punishment  of  a  partj'  who,  by 
committing  a  penal  offence,  places  himself  in  such  a  condition  as 
causes  him  to  commit  a  still  greater  offence.  But,  while  we  sanction 
this  modification  of  the  common-law  doctrine,  we  are  well  satisfied  that 
neither  the  interests  of  societj'  nor  the  wisdom  and  justice  of  law  requires 
or  authorizes  the  judicial  tribunals  of  the  country  to  establish  the  legal 
principles  that  the  violation  of  one  law,  resulting  in  inflaming  and  excit- 
inc  the  worst  passions  of  men,  shall  be  deemed  a  sufficient  cause  for 
mitigating  the  punishment  to  be  inflicted  upon  those  who  commit  great 
crimes.  "  The  laiv  of  England  considering  hoio  easy  it  is  to  counterfeit 
that  excuse  (drunkenness),  and  hoio  weak  an  excuse  it  is  (though  real)., 
tvill  not  suffer  any  man  thus  to  privilege  one  crime  by  another."^  It  is 
true  that  some  of  the  recent  adjudged  cases  qualify  the  principle 
involved  by  stating  "  that  if  intoxication  is  resorted  to  for  the  purpose  of 


1  2  niackstonc's  Comnieutariea,  25, 


UKUNKEXNESS    NO    DEFENCE. 


5(11 


But  Relevant  on  Question  of  Malice. 


e  killing  was 
curved,  yon 
'y  at  all^  of 

id  in  excuse 
lit  of  crime, 
deration  of 
r  the  appel- 

Irunkenness 
1  of  palliat- 
committed, 
ibject  have 
as  law  the 
3SS,  instead 

lessen  thu 
absence  of 
r  to  enable 
less  itself  is 
ghter.  By 
!  for  which 
Isolation  of 
per,  out  of 
jI  in  many 
ie  vigorous 
13'  who,  by 
jndition  as 
e  sanction 
tisfled  that 
iw  requires 
h  the  Icffal 
and  cxcit- 

cause  for 
:imit  great 
counterfeit 
ugh  real), 
'."1    It  is 

principle 
purpose  of 


stimulating  one  to  the  commission  of  a  meditated  felony ,  then  there  can 
br  no  mitigation  of  the  punishment;  "  but  it  seems  to  us  that  no  man 
unless  he  is  so  wanting  in  intellect  as  to  make  him  irresponsible  for  his 
acts,  would  be  so  reckless  of  his  own  security  as  to  announce  his  inten- 
tion of  becoming  intoxicated  so  as  to  enable  him  to  take  liuman  life  or 
iiilhct  punishment  upon  his  enemy. 

But,  on  the  contrary,  men  of  violent  passions  and  wiel<ed  desi-ns 
would  avail  themselves  of  this  very  principle  of  law,  by  becoming  drunk 
..1  order  to  take  tiie  lives  of  their  fellow-men,  with  the  consciousness  on 
the  part  of  the  offender  that  his  drunlvenness  would  be  the  mitigatin- 
feature  of  his  case.  The  recognition  of  such  a  rule  of  law  is  but  an 
invitation  to  men  of  reckless  habits  to  commit  crime;  and  while  their 
punishment  is  by  incarceration  only,  in  the  State  prison  for  a  few  years 
the  sober  man,  whose  cause  for  revenge  and  the  desire  to  take  humaii 
ite  therefor,  is  kept  within  his  own  breast,  for  the  commission  of  a 
like  offence  is  made  to  suffer  death.  There  is  no  reason  or  philosophy 
that  would  hang  the  sober  man  for  murder,  and  lessen  the  punishment 
of  the  man  mtcxxicatcd  for  the  same  offence,  because  tlie  latter  had  vol- 
untarily placed  himself  in  a  condition  by  which  he  is  induced  to  take 
human  life. 

In  the  present  case  the  jury  were  not  only  told  b3-  instructions  Nos 
9  and  10,  that  drunkenness  mitigated  the  offence  by  the  reducing  it 
from  murder  to  manslaughter,  but  they  were  told  by  the  fourteenth  in- 
struction, based  upon  the  fact  of  drunkenness  alone,  that,  "if  they 
l)olieved  appellant  was  insane  at  the  time  of  the  killing  they  must 
acquit."  These  instructions  were  all  more  favorable  to  the  appellant 
than  the  law  or  facts  of  the  case  authorized. 

If  one  is  insane,  and  while  in  tliat  condition  commits  an  offence  he 
is  not  responsible,  for  the  reason  that  he  is  not  enabled  to  know  vWht 
from  wrong,  and,  if  he  kills,  does  not  know  that  to  take  human  life"  is 
wrong ;  or  as  has  been  held  in  cases  of  moral  insanity,  where  from  the 
existence  of  some  of  the  natural  i)ropensities  in  such  violence  it  is  im- 
possible not  to  yield  to  them;  but  voluntary  drunkenness,  that  merely 
excites  the  passions,  and  stimulates  men  to  the  commission  of  crime  in 
a  case  of  homicide  by  one  in  such  a  condition,  without  any  provoca- 
tion, neither  excuses  the  offence  nor  mitigates  the  punishment. 

AVe  are  not  to  be  understood,  however,  as  determining  that  the  fact 
of  drunkenness  in  a  case  like  this  is  incompetent  testimony  before  a  jury 
upon  the  question  of  malice.  Malic-e,  express  or  implied,  must  be 
proven  in  order  to  constitute  the  crime  of  murdei-,  and  in  the  absence  of 
thKs  proof  no  conviction  can  l.c  had  for  such  an  offence;  and  evidence 


562 


DRUNKENNESS. 


Ktuny  V.  I't'oplc. 


as  to  the  condition  of  the  accused  at  tlie  time  of  the  killing,  whether 
drunk  or  sober,  should  be  permitted  to  go  to  the  jury,  in  connection 
with  other  facts,  in  determining  the  question  of  malice.  What  wc  do 
udjudge  is,  that  in  the  trial  of  a  case  like  this,  the  fact  of  drunkenness, 
wliile  it  may  be  a  circumstance  sliowing  the  absence  of  malice,  should 
not  be  singled  out  from  the  other  proof,  and  the  Jury  told  that  it  miti- 
gates the  offence.  The  proper  rule  is,  that  one  in  a  state  of  voluntary 
intoxication  is  subject  to  the  same  rule  of  conduct,  and  to  the  same 
rules  and  principles  of  law  that  a  sober  man  is  ;  and  that  where  a  prov- 
ocation is  offered,  and  the  one  offering  it  is  killed,  if  it  mitigates  the 
offence  of  the  man  drunk,  it  should  also  mitigate  the  offence  of  the 
man  sober. 

We  feel  that  public  policy,  the  demands  of  societ}',  and  more  than 
all  the  wisdom  and  justice  of  the  law  retpiire  that  the  principles  herein 
established  should  be  adhered  to ;  and  as  a  different  construction  is 
placed  by  many  upon  the  law  as  declared  l)y  this  court  in  the  cases  of 
Smith  V.  Commomvealt/i,^  and  BUmvi  v.  Commonwealth,"  involving 
similar  questions,  those  cases  are  overruled  so  far  as  thej'  conflict  with 
the  principles  of  this  opinion. 
.  The  judgment  of  the  coio't  below  is  affirmed. 


VOLUNTARY  INTOXICATION  NO  DEFENCE. 

Kenny  v.  People. 

[31  N.  Y.  330.] 
In  the  Court  of  Appeals  of  New  York,  March,  1865. 

Hon.  IIiRAM  Dexio,  Chief  Judge. 
«'    IIexky  E.  Davies, 
"    William  B.  Wiuoin, 

•loiix  K.  Porter, 

•loiix  W.  IJitowx,  }■         Judges. 

Plait  Potter, 
"    \ViLLiAM  W.  Campbell, 
"    NoAii  Davis,  Jr., 

Voluntary  intoxication  is  no  defence  to  criiiie:  so  long  as  the  oflfender  is  capable 
of  conceiving  a  design  he  will  be  pvesumeti  lo  have  intended  the  natural  consequence? 
of  his  acts. 


(I 

II 


1  1  Duv.  ^24. 


-  7  Uush,  S20. 


KENNY   V.  TEOrLE 


;>(>;} 


Facts  of  tlie  Case. 


iig,  whether 
connection 
i^hat  we  do 
unkenness. 
ice,  should 
hat  it  miti- 
f  voluntaiy 
>  the  same 
ere  a  prov- 
iti  gates  tlie 
nee  of  the 

more  than 
pies  herein 
itruction  is 
e  cases  of 
'  involvinjr 
)nflict  with 

iffirmed. 


r  is  capable 
)nseq«ences 


Whit  of  Kauoit  to  the  general  term  of  the  Sniiremc  Court  of  the  Sec- 
ond District.     The  plaintiff  in  error  was  convicted  of  murder  in  the 
lirst  degree  in  tiie  Court  of  Oyer  and  Terminer,  for  the  county  of  Kings 
for  July,  18G3.  ''  ^  ' 

C.  E.  Pmtt,  for  plaintiff  in  error. 

S.  D.  Morris,  for  the  People. 

POTTKU,  J. 

(Omitting  a  ruling  on  practice. ) 

Four  points  are  made  in  the  case,  upon  exceptions  taken  by  the  pris- 
.ner's  counsel,  to  the  refusal  of  the  judge  to  charge  the  jurv.    The  re- 
quests to  charge  arc  as  follows :  — 

1.  "Intoxication  does  not  furnish  immunity  of  crime,  but  may  bo 
considered  in  determining  what  degree  ,.f  crime  has  been  committed.-' 

2.  "  That  intoxication  mny  be  considered  in  determining  whether  the 
liomicide  was  committed  by  premeditaled  design." 

.'5.   "  If  the  jury  believe  that  the  .accused  wirs  in  a  state  of  mind  from 
u.toxication  that  rendered  him  incapable  of  premeditation  or  desi-n 
they  must  find  manslaughter. ' '  "^ 

4.  "If  the  jury  find  that  the  accused  was  in  a  state  of  mind,  althouc^h 
caused  by  the  voluntary  use  of  intoxicating  liquor,  that  his  judgment 
was  obscured  or  impaired,  so  that  he  was  incapable  of  knowing  the  de- 
ifiee  of  violence  he  was  perpetrating,  or  properly  calculating  its  effects. 
they  must  find  for  the  lesser  offence,  manslaughtei-. " 

In  order  to  show  the  application  of  these  propositions  to  the  case  it 
IS  necessary  to  present  some  of  the  leading  facts  established  by  the  evi- 
dence. A  fair  abstract  of  these  is  found  in  the  opinion  of  the  justice 
who  delivered  the  opinion  in  the  case  in  the  Supreme  Court,  as  fol- 
lows :  — 

"  The  prisoner  is  a  car  driver.     On  the  night  of  the  21st  of  April  at 
eight  o'clock,  with  his  wife  and  two  small  children,  he   entered  the 
grocery  store  of  Frederick  Mohrmann,  at  the  corner  of   Fulton  and 
Albany  Aveimes,  in  the  city  of  Brooklyn,  and  purchased  some  grocer- 
ies for  his  family  use.     While  there  he  commenced  speaking  about  some 
railroad  conductor  with  whom  he  had  a  quarrel  about  two  hours  pre- 
vious.    His  wife  said  the  conductor  was  a  nice  man,  and  did  not  want 
to  do  him  any  harm.     He  told  her  in  an  angry  tone  not  to  interfere  in 
his  business,  and  be  quiet,  otherwise  he  would  punch  her.     He  there 
upon  struck  her  in  the  face  and  kicked  her.     Mohrmann  came  from 
l.ehind  the  counter  and  told  him  to  leave  the  store  —  that  he  wanted  no 
fighting,  and  that  if  he  did  not  stoj)  he  would  i)ut  him  out.     Kennev 
«ud  he   could  not  put  him    out.     Mohrmann  made   the   attempt  and 


T 


564 


DRUNKENNESS. 


Krnny  v.  People. 


failed.  He  thereupon  callcfl  the  witness,  Rink,  to  assist  him,  and  by 
their  joint  efforts  he  was  removed  from  the  store  to  ihe  street,  and  the 
door  locked,  and  while  this  was  being  done  he  declared  he  would  kill 
the  Dutch  son  of  a  bitch  —  meaning  INIohrmann.  The  prisoner  then 
threw  stones  through  the  windows  and  doors  of  the  store,  and  said  he 
wanted  his  two  children.  The  door  was  opened  l»y  Mohrmann  and  the 
children  put  out  into  the  street,  and  the  door  was  closed  again.  He 
also  threw  coal,  a  coal  shovel,  a  measure,  and  with  a  stone  of  about 
twenty  pounds  weight,  smashed  open  the  door,  and  came  into  the  store. 
Here  he  took  up  a  saw  and  a  piece  of  ham  and  threw  them  at  Moi.r- 
mann  and  struck  him  with  them.  The  prisoner  went  again  into  tlu 
street,  and  the  door  was  again  shut  against  him.  He  broke  the  door  in 
once  more  and  came  into  the  store.  There  was  in  the  store  what  the 
witnesses  called  a  meat  bench,  upon  whioh  was  lying  a  large  knife.  The 
prisoner  seized  this  knife  and  struck  the  bench  once,  then  rushed  into 
the  room  behind  the  store,  when  he  met  the  deceased,  John  Ravensburg. 
a  person  residing  with  Mohrmann  at  the  time,  and  with  whom  the  pris- 
oner had  no  words  or  controversy,  and  struck  him  three  blows  or  thrusts 
with  the  knife,  two  of  which  entered  the  chest,  and  the  other  one  the 
abdomen  of  the  deceased,  who  died  therefrom  almost  instantly.  Tlio 
prisoner  at  once  became  quiet,  consulted  with  his  wife  where  he  shoiiM 
go,  and  as  to  the  best  means  to  escape.  She  recommended  him  to  go 
to  East  Brooklyn,  and  he  left  the  scene  of  the  murder,  going  in  that 
direction,  after  telling  his  wife  that  if  any  policeman  made  inquiry  to 
say  he  had  not  been  about  there  that  night."  "  The  proof  leaves  little 
doubt  that  the  prisoner  was  in  a  state  of  intoxication  more  or  less  at 
the  time,  but  otherwise  in  the  full  possession  of  his  senses,  and  quite 
conscious  of  what  he  was  doing.  There  was  also  proof  to  show  that 
while  sober  he  was  civil,  but  when  drunk  unusually  vicious." 

"The  court  instructed  the  jury,  among  other  things,  that  voluntary 
intoxication  furnished  no  immunity  nor  excuse  for  crime ;  that  even 
where  intent  is  a  necessary  ingredient  in  the  crime  charged,  so  long  as 
the  offender  is  capable  of  conceiving  a  design,  he  will  be  presumed,  in 
the  absence  of  proof  to  the  contrary,  to  have  intended  the  natural 
consequences  of  his  own  act,  and  when  one,  without  provocation,  killa 
another  with  a  deadly  or  dangerous  instrument,  no  degree  of  intoxica- 
tion, short  of  that  which  shows  that  he  was  at  the  time  utterly  incapable 
of  acting  from  motive,  will  shield  him  from  conviction.  In  the  present 
case  the  jury  would  consider  from  the  conduct  and  acts  of  the  prisoner 
in  the  afternoon,  as  disclosed  by  the  testimony  of  those  who  were  with 
him,  from  his  going  into  the  store  for  the  luirpose  of  making  a  purchase 


INSTRUCTIONS    AS    TO    MlKDKIl. 


5(1^ 


Exceptions  to  Charge. 


lim,  and  by 
'ct,  nnd  tlu' 
3  would  kill 
■isoncr  then 
ind  said  lie 
aiin  and  tlic 
again.  lie 
ic  of  about 
o  the  store. 
Ill  at  Moi.r- 
lin  into  Hk 
the  door  in 
ire  wliat  the 
knife.  The 
rushed  into 
lavensburg. 
Din  the  pris- 
■8  or  tlirustN 
icr  one  the 
intly.  Tho 
■e  lie  shotiM 
i  him  to  gn 
ling  in  that 
l;  inquiry  to 
leaves  little 

or  less  at 
,  and  quite 

show  that 

t  voluntary 
that  even 
so  long  as 
•esumed,  in 
the  naturii! 
ation,  kills 
)f  intoxica- 
y  incapable 
the  present 
he  prisoner 
)  were  with 
a  purchase 


of  famil}' groceries  and  supplies,  and  the  otliorcircnrastanccs  attendant 
and  immediately  consequent  on  the  transaction,  whetlier  he  was  cai)al)lc' 
of  acting  from  motive  or  not ;  that  the  principal  question  to  l)e  detci- 
mined  by  the  jury,  if  they  found  the  prisoner  guilty  of  killing  the  de- 
ceased, was  whether  the  crime  was  murder  or  manslaughter.  To  convict 
of  murder  it  was  necessary  that  the  killing  should  have  been  perpetrated 
from  a  pre  mcxlitated  design  to  effect  the  death  of  the  deceased  or  of  any 
human  being;  it  was  therefore  sufllcient  to  convict,  if  the  intention  of 
the  prisoner  was  to  kill  the  storekeeper,  although  he  may  not  have  in- 
tended to  kill  the  dc  ^osed ;  if  that  intention  existed,  although  it  was 
conceived  and  formed  immediately  before  the  fatal  act  was  committed, 
the  offence  was  murder ;  if,  on  the  other  hand,  the  act  was  committed 
without  a  design  to  effect  death,  in  the  heat  of  passion,  then  the  oriuie 
wouM  be  reduced  to  manslaughter.  It  therefore  became  material  for 
them  to  consider  whether  such  intent  had  been  satisfactorily  proved. 
To  determine  this,  it  was  proper  that  the  manner,  acts,  and  conduct  of 
the  prisoner,  prior  to  the  act,  his  declaration  that  he  would  kill  the 
storekeeper,  his  acts  after  the  declaration,  the  instrument  used,  and  the 
manner  in  which  it  was  used,  and  his  acts,  conduct,  and  statements  im- 
mediately after  tho  offence  was  committed,  and  upon  his  arrest,  should 
l)e  taken  into  view  and  carefully  considered,  and  as  the  testimony 
showed  that  the  prisoner  was  angry,  and  in  a  passion,  at  the  time  of  his 
struggle  with  the  storekeeper,  and  when  he  was  put  out  of  the  store,  it 
was  especially  important  for  them  to  consider  what  length  of  time 
elapsed  after  that  before  the  fatal  act  was  committed,  in  determining 
whether  he  was  acting  under  the  impulse  of  passion,  without  any  inten- 
tion to  kill,  or  whether  such  intention  had  been  formed,  and  in  fact 
existed  when  the  fatal  act  was  committed.  If  such  intention  was  shown, 
they  would  find  the  prisoner  guilty  of  murder ;  if  not,  they  would  then 
convict  him  of  manslaughter  only." 

To  each  of  the  requests,  made  by  the  prisoner's  counsel,  above 
stated,  the  court  declined  to  accede,  except  so  far  <•,  ^s  embraced  and 
covered  by  the  said  charge,  and  refused  to  charge  the  jury  as  so  re- 
quested, further  or  otherwise  than  as  is  charged,  to  which  decision  and 
refusal  the  counsel  for  the  prisoner  then  and  there  duly  excepted. 

The  whole  charge  of  the  judge  is  given,  in  order  that  the  distinct 
points  in  the  requests  to  charge  may  be  seen.  The  charge  is  plain, 
clear,  and  conceded  to  be  unobjectionable.  No  exception  was  taken 
to  it.  It  was  as  favorable  to  the  prisoner  as  he  was  entitled,  from  the 
case  as  it  appears  in  all  that  was  charged.    The  prisoner  was  indicted 


5(10 


UUUNKKNNKSM. 


Ktiiiiv   r.  I'c()|ili'. 

under  the  liftli  Hcction  of  Uic  net  of  1802,'  for  imiidi'r  in  the  first  (lc<;i'oo. 
uiid  \v:is  coiivictiul  of  thiit  criino,  tlitit  is  '•  of  a  prcnu'ditiited  design  to 
t'ffct'l  the  (U'titli  of  ii  hninnii  hi-iii;:. " 

It  is  iKJt  chiimed  thiit  tliis  net  woidd  iu'  murder  in  Ih"  second  degree. 
If  it  wivs  not  wilful  or  preniedilated  lunrtler,  it  would  hi  shuiglUer 

in  th(!  tliird  degree,  for  the  reason  that  the  blows  were  strut  iv  in  the  heal 
of  passion  without  any  design  to  effect  death,  or  inaii>.lMugliter  in  the 
fouilh  degree,  for  the  reason  that  the  person  was  in  such  an  extreinc 
condition  of  insensibility  l)y  reason  of  intoxication,  or  otherwise,  that 
he  was  incapable  of  acting  from  volition.  This  latter  condition  is  not 
claimed  in  behalf  of  the  prisoner,  and  there  is  nothing  in  the  evidenci- 
to  show  that  he  was  not  capable  of  reasoning  or  competent  to  control 
his  will.  How,  ihen,  would  it  have  been  proper  for  the  Judge  to  have 
charged  the  jury,  that  intoxication  might  be  considered  by  them 
in  determining  what  degree  of  crime  had  been  committed.  It  is  not 
claimed  that  there  was  any  intoxication,  but  such  as  was  voluntary. 
There  was  no  previous  provocation.  The  proi)osilion  was  not  that  the 
Jury  might  consider  the  intoxication  of  the  prisoner  upon  )  question 
whether  the  blows  were  struck  in  the  heat  of  passion,  bu  determine 

wliat  crime  had  been  connnitted.  ''This,"  as  was  well  ixinarked  l)y 
Denio,  J.,  in  People  v.  nof/frs,-  "would  be  precisely  the  same  thing 
as  advising  them  that  they  might  acipiit  of  murder  on  account  of  the 
prisoner's  intoxication,  if  thev  thought  it  sulHcient  in  degree."  This 
proposition  in  effect  was  what  the  court  was  reipie^ted  to  charge  in  the 
first  and  second  prcjpositious  of  the  prisoner's  counsel.  If  ve  are  riuht 
in  this  view,  the  case  of  People  v.  Rogers,  and  the  opinions  delivered 
therein,  and  authorities  therein  cited,  are  conclusive,  and  control  this 
case.  The  principle  involved  in  the  proi)ositions  or  requests  to  charge 
in  this  case  cannot  be  distinguished  in  effect  from  that.  The  rule  estab- 
lislied  in  that  case,  and  in  fact,  the  uniform  rule  found  in  all  cases  is  : 
"  that  where  the  act  of  killing  is  unequivocal  and  unprovoked,  the  fact  that 
it  was  committed  while  the  perpetrator  was  intoxicated,  cannot  be  allowed 
to  affect  the  legal  character  of  the  crime."  The  requests  to  charge, 
therefore,  that  the  jury  might  consider  intoxication, — without  refer- 
ence to  the  degree  of  intoxication  —  in  determining  what  crime  had  been 
committed,  or  whether  homicide  had  been  committed  ''  by  premeditated 
design,"  were  propeily  denied  by  the  judge. 

The  third  recjuest  to  charge,  while  it  is  subject  to  the  same  objections 
as  the  first   and  second  are,  would,  in   addition  to  those  objections,  if 


I  Ch.  li)T. 


•■;  ISN.  Y.-20, -21. 


rst  (logrcc. 
design  to 


ml  (l(>gn'0. 

slilUglitfl- 

111  the  lu-al 
Iter  in  tlio 

II    ('XtlCtUf 

■wisi',  tliJiL 

lion  is  not. 

e  evidence 

to  control 

ge  to  iuivc 

i»y  tlu'iii 

It  is  not 

'olunt.aiy. 

t  tliat  the 

)  question 

^otenniiic 

larlved  l)y 

mie  tiling 

lit  of  the 

'     Tins 

■go  in  tlie 

are  riulit 

delivered 

ntrol  tills 

to  cliargc 

lie  estal)- 

cases  is : 

fact  that 

e  allowed 

3  cliarge, 

ut  refer- 

had  been 

leditated 

jjections 
3tions,  if 


DUrNKKNNKSS. 


ah; 


Att  Affecting  Design, 


ciiiirged,  hv  ('([iiivaii'iit  to  saying  to  the  jiiry  that  if  the  prisoner,  by  his 
v(jluntary  intoxieiition,  liad  rendered  iiimself  incapable  of  premeditation 
or  design,  the  law  would  not  iinpiite  to  liini  the  offence  which  would 
otiierwise  i)e  its  legal  charaetir.  Ilarii:^,  .1  ,  in  the  case  of  I*i(}j)li'  v. 
Ii()(je)'s.  said:  "I  am  iKjt  aware  that  sucii  doctrine  has  before  been 
iisserted.  It  is  ci-rtainly  unsouiul  "  Indeed  1  have  doubts  whether  the 
cliarge  of  the  judge  in  this  respect  was  not  more  favorable  fo  the  pris- 
oner than  the  rule  would  justify.  It  may  fairly  bi'  implied  from  the 
charge  that  the  jmlLre  bi'  nded  to  instruct  the  jury  that  there  was  a  de- 
gi'0(!  of  voluntary  int(<xicatio  .  that  would  shield  from  conviction,  for  an 
act  which,  if  committed  when  sober,  lie  might  be  convicted. 

The  fourth  re(piest  to  charge  seems  to  l)o  the  most  objectionable  of 
all.  It  might  fairly  be  implied  from  a  charge  made  in  the  language  of 
that  request,  that  though  the  act  was  committed  by  premeditated  design, 
if  the  prisoner's  judgment  was  so  obscured  i)y  liquor  that  lie  was  incapa- 
l»Ie  of  knowing  the  degree  of  violence  he  was  perpetrating,  or  properly 
calculating  its  effects,  they  might  liiid  it  an  offence  of  a  lower  grade. 
What  adds  to  this  objection  is,  that  the  evidence  presents  nothing  u|)on 
wliich  to  base  sucli  a  cliarge.  There  is  no  feature  of  tlie  case,  in  the 
facts  or  evidence,  to  warrant  a  jury  to  infer  that  the  prisoner  was  in  a 
state  that  rendered  him  inc!4)ab[e  of  understanding,  or  that  liis  judg- 
ment was  obscured  or  impaired  by  intoxication.  It  would  iiavc  l)eeii 
iiiqiroper  for  the  court  to  charge  the  jury  upon  a  liypotliesis  not  pre- 
sented by  the  evidence  and  unwarranted  by  law,  if  the  evidence  did 
sustain  the  hypothesis.  As  was  said  in  Peoj)le  v.  Rogers,  "  if  by 
a  voluntary  act,  the  party  temp(jrarily  casts  off  the  restraints  of  reason 
and  conscience,  no  wrong  is  done  hiin  if  lie  is  considered  answerable  for 
any  injury  which  in  that  state  he  may  do  to  others  or  to  society;  '' 
or,  in  the  language  cited  from  Plowden,  in  the  same  case,  "  if  a  per- 
son that  is  drunk  kills  another  this  shall  be  felony,  and  he  shall  be 
hanged  for  it,  and  yet  he  did  it  through  ignorance,  for  when  he  was 
drunk  he  had  no  understanding  or  memory,  but  inasmuch  as  that  ignor- 
ance was  occasioned  by  his  own  act  and  folly,  and  he  might  have 
avoided  it,  he  shall  not  be  privileged  thereby. ' '  ' 

The  crime  committed  in  this  case,  as  was  remarked  by  Brown,  J. ,  "  was 
committed  with  circumstances  of  brutality  and  atrocity  almost  unexam- 
pled." The  evidence  justifies  the  verdict  of  the  jury;  the  evidence  is 
clear  that  the  prisoner  was  sober  enough  to  commit  an  act  to  bring  liim- 

•  Plowd.  19. 


568 


DRUNKENNESS. 


Kenny  v.  People. 


self  within  the  meaning  of  the  law  defining  murder  in  the  first  degree, 
' '  a  premeditated  design  to  effect  the  death  of  a  human  being ; ' '  that  he 
was  sober  enough  to  force  his  way  into  the  building  where  his  intended 
victim  was,  to  trace  him  from  room  to  room  ;  to  seek  to  provide  himself 
with  a  murderous  weapon  fitted  for  the  intended  work  ;  of  announcing 
his  intention,  and  of  executing  his  purpose  by  a  repetition  of  fatal  blows^ 
and  of  planning  and  executing  an  immediate  escape  from  justice.  The 
law  would  indeed  suffer  re^jroach  that  did  not  liold  fmch  a  man  sober 
enough  to  suffer  the  penalty  of  his  crime  when  fairly  convicted.  I  am 
of  opinion  that  no  legal  error  was  committed  on  the  trial,  and  that  thf 
proceedings  should  be  remitted  to  the  Court  of  Oyer  and  Terminer,  to 
sentence  the  prisoner  anew. 

Daviks,  J. 

(Omitting  rulings  as  to  challenge  of  jurors.) 

The  requests  to  charge,  made  by  the  prisoner's  counsel,  were  prop- 
erly refused  by  the  court.  The  law,  upon  the  points  suggested,  has 
been  settled  by  adjudication  in  this  court,  and  no  reasons  are  presented 
why  the  doctrine  thus  enunciated  should  be  r  viewed  or  disturbed. 
The  case  of  People  \.  Rogerti,^  was  well  considered,  and  the  doctrine 
then  declared  should  be  rigidly  adhered  to.  Judge  Dexio,  in  tho 
()[)iuion  of  the  court,  declares  that  all  the  authorities  agree  upon  the 
main  proposition,  namely,  that  mental  aberration,  produced  by  drinking 
intoxicating  liquors,  furnished  no  immunity  for  crime. 

In  Burrow's  Case,-  the  prisoner  was  indicted  for  rape,  and  urged  in 
his  defence  that  he  was  in  liquor.  IIoluoyd,  J.,  in  addressing  the  jury, 
said:  "  It  is  a  maxim  in  law  that  if  a  man  gets  himself  inioxicated  hv 
is  answerable  to  the  consequences,  and  not  excusable  on  account  of  any 
crime  he  may  commit  when  infuriated  by  liquor,  provided  he  was  pre- 
viously in  a  fit  state  of  reason  to  know  right  from  wrong.  If,  indeed, 
the  infuriated  state  at  which  he  arrives  should  continue  and  become  a 
lasting  malady,  then  h^  is  not  answerable."  In  the  case  of  Bex  v. 
Carroll,^  the  prisoner  was  tried  in  1825,  at  the  Central  Criminal  Court 
for  murder.  It  appeared  that  shortly  before  the  homicide  the  prisoner 
was  drunk.  His  counsel,  though  he  admitted  that  drunkenness  could 
not  excuse  the  commission  of  the  crime,  yet  submitted  that  in  a 
charge  for  murder,  the  material  question  being  whether  the  act  was  pre- 
meditated or  done  with  sudden  heat  and  impulse,  the  fact  of  the  party 
being  intoxicated  was  a  proper  circumstance  to  be  taken  into  considcra- 


)  18  N.  Y.  9. 


2  Lew.C.C.  75  (1823). 


»  7  0.  &  P.  145. 


DIIUNKENNESS   AS  A   DEFENCE. 


569 


The  New  York  Cases  Reviewed. 


rst  degree, 
;  "  that  lu' 
lis  intended 
ide  himself 
mnouncin"- 
atal  blows, 
itice.  Tlie 
man  sober 
ted.  I  am 
id  that  the 
iiminer,  to 


fvere  prop- 
ested,  has 

presented 
disturbed. 
e  doctrine 
ID,   in  the 

upon  the 
Y  drinking 

I  urged  ill 
;  the  jury, 
cicated  he 
mt  of  any 
i  was  prc- 
f,  indeed, 
become  a 
f  Rex  V. 
nal  Court 
3  prisoner 
2ss  could 
hat  in  a 
;  was  pre- 
the  party 
onsidera- 

\  145. 


tion,  but  this  was  repudiated  by  Pakke,  J.,  and  concurred  in  by  Lit- 

TLEDALK,  J. 

In  the  cas3  of  Rogers,^  the  prisoner's  counsel  requested  the  court  to 
instruct  the  jury,  "  that  if  they  were  satisfied  that  by  reason  of  intoxica- 
tion there  was  no  intention  or  motive  to  commit  the  crime  of  murder, 
they  should  convict  the  defendant  of  manslaughter  only."  Such,  in 
substance,  were  the  requests  to  charge  in  the  case  at  bar.  The  Court 
of  General  Sessions  refused  to  charge  as  requested  in  Rogers'  Case,  and 
this  court  held  the  refusal  to  be  right,  and  said:  "If  by  this  request 
tlie  counsel  for  the  defendant  meant,  as  the  request  seems  to  have  been 
interpreted  by  the  Supreme  Court,  that  the  jury  should  be  instructed 
to  take  into  consideration  the  intoxication  of  the  defendant  in  determin- 
ing the  intent  with  which  the  homicide  was  committed,  the  proposition 
is  not  law.  It  has  never  yet  been  held  that  the  crime  of  murder  can  be 
reduced  to  manslaughter,  by  showing  that  the  perpetrator  was  drunk, 
when  the  same  offence,  if  committed  by  a  sober  man,  would  be  murder." 
That  precise  proposition,  thus  condemned  by  this  court,  was  embraced 
in  the  fourth  request  of  the  prisoner's  counsel  for  the  judge  to  charge. 
It  was  in  these  words:  "If  the  jury  find  the  accused  was  in  a  state  of 
mind,  although  caused  by  the  voluntary  use  c>f  intoxicating  liquor,  that 
liis  judgment  was  obscured  or  impaired,  so  that  he  was  incapable  of 
knowing  the  degree  of  violence  he  was  perpetrating,  of  properly  calcu- 
lating its  effects,  they  must  find  for  the  lesser  offence,  manslaughter." 
The  court  properly  refused  so  to  charge,  and  the  previous  requests  were 
only  modifications  of  the  same  general  idea,  namely,  that  tlie  state  of 
intoxication  might  be  taken  into  consideration  by  the  jury,  by  which 
the  crime  of  murder  could  be  reduced  to  manslaughter,  if  they  found 
the  prisoner  was  under  the  influence  of  intoxicating  liquors  at  the  time 
he  committed  the  crime,  when  the  same  offence,  if  committed  by  him 
when  not  intoxicated,  would  have  been  murder.  In  this  State  the  cases 
of  People  y,  Hammill  and  Ptople  v.  7?o6oi.<ow,2  show  the  consistency  with 
which  the  doctrine  enunciated  has  been  adhered  to  in  our  criminal 
courts  and  in  the  Supreme  Court. 

Judge  Denio,  in  his  opinion  in  the  case  of  Rogers,^  justly  observes 
that  "  when  a  principle  of  law  is  found  to  be  well  established  b}'  a  series 
of  authentic  precedents,  and  especially  when,  as  in  this  case,  there  is  no 
conflict  of  authority,  it  is  unnecessary  for  the  ji.dges  to  vindicate  its 
wisdom  or  policy.     It   will,  moreover,    occur    to    every    mind    that 


Supra. 


2  Park.  C.  C.  223,  236. 


'  Supra, 


570 


DRUNKENNESS. 


Kc'iuiy  V.  People. 


such  a  principle  is  absolutely  essential  to  the  protection  of  life  and 
property.  In  the  forum  of  conscience,  there  is,  no  doul)t,  consideraliK; 
difference  between  a  murder  deliberately  planned  and  executed,  by  a 
person  of  unclouded  intellect,  and  the  reckless  taking  of  life  by  one  in- 
furiated by  intoxication ;  but  human  laws  are  based  upon  consideia- 
tions  of  policy,  and  look  rather  to  the  maintenance  of  personal  security 
and  social  order,  than  to  an  accurate  discrim^  lation  as  to  the  moral 
qualities  of  individual  conduct.  But  there  is,  in  truth,  no  injustice  in 
holding  a  person  responsible  for  his  acts  committed  in  a  state  of  volun- 
tary intoxication.  It  is  a  duty  which  every  one  owes  io  his  fellow-men, 
and  to  society,  to  say  nothing  of  more  solemn  obligations,  to  preserve, 
so  far  as  it  lies  in  his  power,  the  inestimable  gift  of  reason.  If  it  is 
perverted  or  destroyed  by  fixed  disease,  though  brought  on  by  his  own 
vices,  the  law  holds  him  not  accountable  ;  but  if  by  a  voluntary  act  lie 
temporarily  casts  off  the  restraints  of  reason  and  conscience,  no  mercy 
is  due  him,  if  he  is  considered  answerable  for  any  injury  which  in  that 
state  he  may  do  to  others  or  to  society."  The  same  doctrine  was  long 
since  enunciated  by  the  eminent  judge,  Lord  Mansfield,  who  said,  in 
tlie  celebrated  case  of  the  Chamberlain  of  London  v.  Evavs,  in  the 
House  of  Lords,  February  4,  1767,  that  "  a  man  shall  not  be  allowed  to 
plead  that  he  was  drunk  in  bar  of  criminal  prosecution,  though,  perhaps, 
he  was  at  the  time  as  incapable  of  the  exercise  of  reason  as  if  he  had 
been  insane ;  because  his  drunkenness  was  itself  a  crime,  he  shall  not 
be  allowed  to  excuse  one  crime  bj'  anotlier. "  It  is  a  settled  maxim  of 
the  law  "  that  a  man  shall  not  disable  himself."  These  views  appear 
to  my  mind  to  be  eminently  sound  and  wise,  and  receive  m}-  entire  con- 
currence. They  are  decisive  of  the  present  case,  and  the  judgment 
must  be  affirmed.  The  day  fixed  by  the  judgment  for  the  execution  of 
the  sentence  having  passed,  the  proceedings  must  be  remitted  to  the 
Supreme  Court,  with  directions  to  that  court  to  transmit  the  same  to  the 
Kings  County  Oyer  and  Terminer,  with  directions  to  that  court  to  pro- 
nounce sentence  anew  against  the  prisoner. 

All  the  judges  concurring. 

Judgment  affirmed. 


MADNESS    IMJODUCEl)    HV    INTOXICATION. 


571 


No  Defeucc  to  Crime. 


of  life  and 
onsiderabk; 
2uted,  by  a 
by  one  in- 
consideia- 
lal  security 
^  the  moral 
njustice  in 
;  of  volun- 
ellow-men, 
•  preserve, 
1.     If  it  is 
by  his  own 
ary  act  lie 
no  mercy 
eh  in  that 
3  was  lone 
10  said,  in 
»s,   in  the 
allowed  to 
,  perhaps, 
if  he  had 
shall  not 
maxim  of 
vs  appear 
ntire  con- 
judgment 
cutiou  of 
?cl  to  the 
me  to  the 
rt  to  pro- 

^rmed. 


intoxication  no  defence  — madness  produced  thereby. 

Bennett  v.  State. 

[Mart.  &  Ycrg.  13;^.] 

In  the  Supreme  Court  of  Tennessee,  1827. 


Jadgi',s 


Hon.  RonKUT  Wiiytk, 
"    John  Cathox, 

"      JaCOH  PlXK, 

"     Hkxuy  Ckaijh, 

Artificial  and  temporary  madness  by  drunkenness  voluntarily  contracted  is  no  defence 
to  the  charge  of  homicide. 

Catron,  J.,  delivered  the  opinion  of  the  court. 

The  defendant  (James  R.  Bennett)  was  indicted  in  the  Maury  Circuit 
Court  for  the  riurder  of  Thomas  Callahan,  pleaded  not  guilty,  was  <.on- 
victed  and  judgment  passed  upon  him,  from  which  he  took  his  writ  of 
error  to  this  court 

(After  passing-  on  other  points.) 

A  main  defence  on  part  of  the  accused  before  the  jury  was  that  he 
was  a  lunatic  when  he  committed  tlie  crime,  and  not  responsible  for  the 
net.  After  the  court  iiad  charged  the  jury  in  all  respects  cori-ectl^'  upon 
the  whole  facts  arising  in  the  cause,  it  is  remarked  by  the  judge  to  the 
jiuy,  "  that  upon  the  subject  of  derangement,  such  was  the  structure 
of  the  human  mind,  tliat  philosophers  might  forever  speculate  upon  the 
subject,  but  could  not  define  in  what  it  consists  ;  but  that  if  a  hundred 
men  should  look  at  a  drunken  man,  they  would  agree  in  saying  he  was 
drunk;  and  if  a  hundred  men  were  to  look  at  a  deranged  man,  they 
would  agree  in  saying  he  was  deranged." 

That  the  defendant  was  either  deranged  or  intoxicated,  or  both,  when 
he  coinmittel  the  homicide,  is  certain.  The  part  of  the  ciiarge  aliove 
set  forth  was  excepted  to.     The  (piestion  is,  was  it  erroneous? 

No  part  of  the  charge  of  the  court  being  set  forth  except  the  para- 
giaph  cited,  and  only  a  general  statement  in  the  record  that  all  other 
parts  of  the  cliarge  were  satisfactory  to  the  prisoner,  it  is  diflicult  to 
see  the  reasons  of  the  part  set  forth.  We  take  the  charge  to  import 
that  there  is  an  intuitive  principle  in  our  nature  which,  when  coml)ined 
with  our  experience,  qualifies  men  to  judge  what  is  drunkenness  and 
what  insanity,  although  the  reasons  why  the  mind  is  insane  cannot  be 
defined  in  the  theory.     That  if  a  man  was  solely  deranged,  or  solel} 


572 


DRUNKENNESS. 


Bennutt  v.  State. 


<lrunk,  an  luindrecl  men  would  all  agree  his  mind  was  affected  in  the  one 
way  or  the  other,  and  that  this  judgment  formed  upon  observation 
would  be  the  better  test  of  the  fact. 

This  court  think  the  speculation  of  the  circuit  judge  very  reasonable, 
and  very  j)robably  correct,  and  that  the  reasons  for  making  the  remarks 
to  the  jury,  in  all  probability,  were  necessary,  but  that  necessity  grew 
out  of  the  facts  not  appearing  in  the  record.  We  must,  however,  take 
them  as  stated  alone ;  and  when  we  do  so,  nothing  can  be  seen  in  the 
charge  calculated  to  lead  astray  the  jury  in  their  finding.  Therefore, 
we  do  not  apprehend  there  is  any  error  in  tliis  point. 

In  this  cause  a  new  trial  was  moved  for  and  refused  upon  the  evi- 
dence, the  whole  of  which  is  set  out  in  the  record ;  from  MJiich  it  appears 
that  the  defendant  was  intoxicated  at  the  time  he  committed  the  homi- 
cide charged  in  the  indictment ;  that  he  had  been  for  a  year  or  more  in 
Ihe  constant  habit  of  drinking  spirits  to  excess,  and  was  very  turbulent 
and  even  dangerous  when  drinking;  that  by  reason  of  the  long  con- 
tinuance of  the  habit  his  mind  had  become  irritable  when  drinking,  and 
almost  without  discretion  ;  that  the  slain  was  a  poor  debilitated  old 
man,  worn  out  by  age  and  an  irregular  life,  inoffensive  in  his  character, 
and  who  had  not  given  the  least  cause  to  the  defendant  to  injure  him  : 
that  the  deceased  was  at  the  house  of  the  defendant,  and  they  had  been 
drinking  in  company ;  the  defendant  captiously,  and  without  any  cause 
for  doing  so,  accused  the  slain  of  stealing  his  poultry  and  pigs,  took 
down  his  rifle  and  shot  him  through  the  body  abont  the  middle ;  after 
the  crime  was  committed,  he  sta^'ed  at  home  and  vaunted  of  the  act  to 
all  whom  he  saw,  and  stated  the  facts.  If  in  any  case  a  temporary  sus- 
pension of  reason,  caused  by  voluntary  intoxication,  would  excuse 
homicide,  this  would  be  a  case  to  which  such  rule  would  reasonably 
apply. 

But  that  the  state  of  mind  of  the  defendant  was  artificial,  —  voluntarily 
contracted  madness  by  drunkenness, — and  that  the  frenzy  was  tem- 
porary, this  court  have  no  doubt;  that  such  temporary  frenzy  was 
no  excuse  for  the  act,  is  most  clear.*  We  would  refer  to  Sir  Matthew 
Hale's  Pleas  of  the  Crown, ^  as  laying  down  the  true  rule  and  settled  law 
upon  this  subiect. 

The  court  order  that  the  judgment  of  the  Circuit  Court  be  afllrmed  ; 
that  the  defendant  be  executed  on  Monday,  the  12th  day  of  March 
next ;  and  that  the  sheriff  of  Davidson  County  carry  this  sentence  into 
execution. 


1  Hale,  32;  1  Hawk.  <'li.,3,  sect.  7;4  lil.  Com.  25. 


»B.  1.  P.32. 


HAILE    V.  STATE. 


573 


in  the  one 
)bservation 


Drunkenness  as  a  Defence. 


•easonable, 
lie  remarks 
ssity  grew 
ever,  take 
ieen  in  the 
Therefore, 

<n  the  evi- 
i  it  appears 

the  homi- 
or  more  in 

turbulent 
long  coi!- 
iking,  and 
itated  old 
character, 
jure  him ; 
■  had  been 
any  cause 
jigs,  took 
tile;  after 
the  act  to 
3rary  sus- 
Id  excuse 
easonably 

oluntarily 
was  tem- 
Mizy  was 
Matthew 
Jttled  law 

affirmed ; 
jf  March 
ence  into 


DRUNKENNESS  — NO  AGGRAVATION  OF  CRIME  —  DEGREES  OF 

MURDER. 

Haile  V.  State 

[11  Humph.  154.] 
In  the  Supreme  Court  of  Tennessee,  December,  1850. 


Hon.  Natiiax  Grken,     "j 
"     It.  J.  McKiXNKY,    ^Judges. 

"      A.  W.   O.   TOTTEN.^ 


1.  Drunkenness— No  AfiTKravation  of  Crime.  — II.  was  indicted  for  murder.  It  was 
proved  that  he  was  drunk  at  the  time  of  the  offence.  The  judge  charged  the  jury  that 
drunkenness  was  an  aggravation  of  the  otlence,  unless  tlie  prisoner  was  so  deeply  in- 
toxicated as  to  be  incapable  of  forming  a  deliberate  and  premeditated  design  to  do  the 
act.    Held  error. 

a.  Drunkenness  —  Desrrees  of  Murder.  —  Where  there  are  degrees  of  murder,  the  fact  of 
drunkenness  is  relevant  on  the  question  whelher  the  killing  sprang  from  a  premedi- 
tated purpose,  or  from  passion  excited  by  inadequate  provocation. 

Haile  was  indicted  for  murder  in  tlic  Circuit  Court  of  Smith  County. 
The  case  was  submitt'^d  to  a  jury,  under  the  direction  of  Judge 
Campbell,  and  the  defendant  was  found  guilty  of  murder  in  the  first 
degree,  and  judgment  entered  thereupon.  From  this  judgment  he 
appealed. 

J.  S.  Brien  &  Caruthers,  for  the  plaintiff  in  error. 

The  Attorney-General  and  M.  Brien,  for  the  State. 

Gkeen,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  in  the  Circuit  Court  of  Smith 
County,  for  the  murder  of  J.  H.  Davis,  and  upon  his  trial  was  found 
guilty  of  murder  in  the  first  degree. 

Upon  the  trial  there  was  evidence  that  the  prisoner  was  intoxicated 
attlietimche  committed  the  homicide.  Upon  the  subject  of  the  de- 
fendant's intoxication,  the  judge  told  the  jury,  that  "  voluntary  intoxi- 
cation is  no  excuse  for  the  commission  of  crime  ;  on  the  contrary,  it  is 
considered  by  our  law  as  rather  an  aggravation  ;  j'et  if  the  defendant 
was  so  deeply  intoxicated  by  spirituous  liquors  at  the  time  of  the  kill- 
ing, as  to  be  incapable  of  forming  in  his  mind,  a  design,  deliberately 


574 


DKL'NKKN.NKSS. 


Ilaih'  IK  State. 


find  premeclilattHlly  to  the  act  —  the  killing,  under  such  n  state  of  in- 
toxication, would  only  be  nuirder  in  the  second  degree." 

It  is  insisted  that  his  honor  did  not  state  the  principle  upon  this  sub- 
ject, as  it  has  been  ruled  by  this  court. 

In  the  case  of  Stran  v.  State,^  Judge  Rkk.sk,  who  delivered  the 
opinion  of  the  court,  says:  '-But  although  drunkenness,  in  point  of 
law,  constitutes  no  excuse  or  Justilication  for  crime,  still,  when  the 
nature  and  essence  of  a  crime  is  m:\de  to  depend  by  law  upon  the  pecu- 
liar state  and  condition  of  the  criminal's  mind  at  the  time,  and  with 
reference  to  the  act  done,  drunkenness,  as  a  matter  of  fact,  affecting 
such  state  and  condition  of  the  mind  is  a  i)roper  subject  for  considera- 
tion and  inquiry  by  the  jury.  The  question  in  such  case  is,  what  is  the 
mental  s^«^((.s?  Is  it  one  of  self-i)ossession,  favorable  to  fixed  purpose, 
by  deliberation  and  premeditation,  or  did  the  act  spring  from  existing 
passion,  excited  by  inadequate  provocation,  actirig.  it  uiay  be,  on  a 
peculiar  temperament,  or  upon  one  already  excited  by  ardent  spirits? 
In  such  case  it  matters  not  that  the  provocation  was  inadequate  or  the 
spirits  voluntarily  drank;  the  question  is,  did  the  act  proceed  from 
sudden  passion,  or  from  deliberation  or  premeditation?  What  wns  the 
mental  status  at  the  time  of  the  act,  and  with  reference  to  the  act?  To 
regard  the  fact  of  intoxication  as  meriting  consideration  in  such  a  case, 
is  not  to  hold  that  drunkenness  will  excuse  crime,  but  to  inquire  whether 
the  very  crime  which  the  law  defines  and  punishes,  has  been  in  point  of 
fact  committed." 

In  these  remarks,  the  court  intended  to  be  understood  as  distinctly 
indicating,  that  a  <legree  of  drunkeiuiess,  by  which  the  party  was  greatly 
excited,  and  which  produced  a  state  of  mind  unfavorable  to  deliberation 
and  premeditation,  although  not  so  excessive  as  to  render  the  party  ab- 
solutely incapable  of  forming  a  deliberate  purpose,  might  be  taken  into 
consideration  by  a  jury,  in  determining  whether  the  killing  were  done 
with  premeditation  and  deliberation. 

The  whole  subject  was  ably  reviewed  by  Judge  Trui.KY,  in  the  case 
of  Pirtle  v.  St((te.^  In  delivering  the  opinion  of  the  court,  in  that  case, 
the  judge  says :  "  It  will  frequently  happen  necessarily  when  the  killing 
is  of  such  a  character  as  the  common  law  designates  as  nnuder,  and  it 
has  not  been  premeditated  by  means  of  poison,  or  by  lying  in  wait, 
that  it  will  be  a  vexed  question,  whether  the  killing  has  been  the  result 
of  sudden  passion  produced  by  a  cause  inadequate  to  mitigate  it  to  man- 


>  4  Humph.  13(!. 


2  9  Humph.  063. 


DRUNKENNESS. 


575 


Drunkenness  as  Affecting  Decrees  of  Crime. 


5tiitc  of  in- 

)Ji  this  sul)- 

liverod   tlio 
n  point  of 
,  when  the 
»  the  pecu- 
,  and  witli 
i,  affeetinjjf 
considera- 
ivhat  is  the 
\  purpose, 
n  existing 
be,  on  a 
it  spirits? 
ite  or  the 
'ced  from 
it  was  the 
act?     T(. 
c'h  a  ease, 
e  whetlier 
I  point  of 

distinctly 
IS  greatly 
liberation 
)arty  ab- 
akeii  into 
ere  done 

the  case 
lat  case, 
le  killin<: 
r,  and  it 
in  waif, 
le  result 
to  man- 


slaughter, hut  still  stillieient  to  mitigate  it  to  murder  in  the  second  de- 
gree, if  it  be  really  the  true  cause  of  the  excitement,  or  whether  it  has 
l)een  the  result  of  premeditation  and  deliberation  ;  and  in  all  such  cases, 
whatever  fact  is  calculated  to  pass  light  i\\}nn  the  mental  status  of  the 
offender,  is  legitimate  proof;  and  among  otliers,  the  fact  he  was  at  the 
time  drunk,  not  that  this  will  excuse  or  mitigate  the  offence  if  it  were 
(lone  wilfully,  deliberately,  maliciously,  and  i)renieditate(lly,  Avhich  it 
might  Avell  be,  though  the  perpetrator  was  driuik  at  the  time,  but  to 
show  that  the  killing  did  not  spring  from  a  premeditated  puri)ose,  but 
sudden  passion,  excited  l)y  inadequate  provocation,  such  as  might  rea- 
sonably be  expected  to  arouse  sudden  passion  and  heat  to  the  point  of 
takiiig  life,  without  premeditation  and  deliberation." 

Here  the  court  explicitly  lays  down  the  rule  to  be,  that  in  all  cases 
where  the  question  is  between  murder  in  the  first,  and  murder 
in  the  second  degree,  the  fact  of  drunkenness  may  be  proved,  to 
shed  light  upon  the  mental  status  of  the  offender,  and  thereby  to 
enable  the  jury  to  determine  whether  the  killing  sprung  from  a 
premeditated  purpose,  or  from  passion  excited  by  inadequate  provo- 
cation. And  the  degree  of  drunkenness  which  may  then  shed  light  on 
the  mental  state  of  the  ofiemlcr,  is  not  alone  that  excessive  stale  of 
intoxication  which  deprives  a  party  of  the  capacity  to  frame  in  his  mind 
a  design  deliberately  and  premeditatedly  to  do  an  act ;  for  the  court 
says  that  in  the  state  of  drunkenness  referred  to,  a  party  well  may  be 
guilty  of  killing  wilfully,  deliberately,  maliciously,  and  premeditatedly  ; 
and  if  he  so  killed,  he  is  guilt}^  as  though  he  were  sober. 

The  principle  laid  down  by  the  court  is,  that  when  the  (juestion  is, 
can  drunkenness  be  taken  into  consideration  in  determining  whether 
a  party  be  guilty  of  murder  in  the  second  degree,  the  answer  must  be, 
that  it  cannot ;  l)ut  when  the  question  is,  what  was  the  actual  mental 
state  of  the  perpetrator  at  the  time  the  act  was  done,  was  it  one  of  delib- 
eration and  premeditation,  then  it  is  competent  to  show  any  degree  of 
intoxication  that  may  exist,  in  order  that  the  jury  may  judge,  in 
view  of  such  intoxication,  in  connection  with  all  the  other  facts  and 
<'ircumstances,  whether  the  act  was  premeditatedly  and  deliberately 
done. 

The  law  often  implies  malice  from  the  manner  in  which  the  killing  was 
done,  or  the  weapon  with  which  the  blow  was  stricken.  In  such  case, 
it  is  murder,  though  the  perpetrator  was  drunk.  And  no  degree  of 
drunkenness  will  excuse  in  such  case,  unless  ])y  means  of  drunken- 
ness  an   habitual   or  fixed  madness    be    caused.      The  law  in   such 


576 


dulnkknm:s8. 


Ilalle  r.  Stutc. 


cases  does  not  seek  to  ascertain  the  actual  state  of  the  perpetrator's 
mind,  for  the  fact  from  which  malice  is  implied  having  been  proved,  tht' 
law  presumes  its  existence,  and  proof  in  opposition  to  this  presumption, 
is  irrelevant  and  inadmissible.  Hence,  a  party  cannot  show  that  he  was 
so  drunk  as  not  to  be  capable  of  entertaining  a  malicious  feeling.  The 
canclusion  of  law  is  against  him. 

But  when  the  question  is,  whetiier  a  party  is  guilty  of  murder  in  the 
first  degree,  it  becomes  indispensable  that  the  jury  should  form  an 
opinion  as  to  the  actual  state  of  mind  with  whicii  this  act  was  done. 
All  murder  in  the  first  degree  (except  that  committed  by  poison  and 
by  lying  in  wait),  must  be  perpetrated  wilfully,  deliberately,  maliciously 
and  prenieditatedl}'.  The  jury  must  ascertain,  as  a  matter  of  fact,  that 
the  accused  was  in  this  state  of  mind,  when  the  act  was  done.  Now, 
according  to  the  cases  of  Swan  v.  State,  and  PiHle  v.  State,  any 
fact  that  will  shed  light  upon  this  subject  may  be  looked  to  by 
them,  and  may  constitute  legitimate  proof  for  their  consideration. 
And  among  other  facts,  any  state  of  drunkenness  being  proved  is  ;i 
legitimate  subject  for  inquiry,  as  to  what  influence  such  intoxication 
might  have  had  upon  the  mind  of  the  offender  in  the  perpetration  of 
the  deed. 

We  know  that  an  intoxicated  man  will  often,  upon  a  slight  provoca- 
tion, have  liis  passions  excited  and  rashly  perpetrate  a  criminal  act. 
Now,  it  is  unphilosophical  for  us  to  assume  that  such  a  man  would,  in 
the  given  case,  be  chargeable  with  the  same  degree  of  deliberation  ami 
l^remeditation  that  we  would  ascribe  to  a  sober'  man  perpetrating  the 
same  act,  upon  a  like  provocation. 

It  is  in  this  view  of  the  question  that  this  court  held,  in  Swan's  Case, 
and  in  Pirlle's  Case,  that  the  drunkeuiiess  of  a  party  might  be  looked 
to  by  the  jury,  with  the  other  facts  in  the  case,  to  enable  them  to  decide 
whether  the  killing  were  done  deliberately  and  premeditated ly. 

But  his  honor,  the  Circuit  Court,  told  the  jury  that  drunkenness  was 
an  aggravation  of  the  offence,  unless  the  defendant  was  so  deeply  in- 
toxicated as  to  be  incapable  of  forming  in  hi  a  mind  a  design  deliber- 
ately and  prenieditatedly  to  do  the  act.  In  this  charge  there  is  error,  for 
which  the  judgment  must  be  reversed. 

Meversed. 


DRUNKENNESS. 


577 


Iiitoxicatiou  uiul  Muutal  Unsouudness. 


rpetmtor's 
) roved,  the 
esumption, 
that  he  was 
ling.     The 

rder  in  the 
I  form  ail 
was  done. 
>oison  and 
iialieiously 
'  fact,  that 
le.  Now, 
State,  any 
ed  to  by 
lideration. 
•oved  is  a 
toxieatioii 
stratioii  of 

t  provoca- 
minal  act. 
would,  ill 
•ation  ami 
•ating  the 

m's  Case, 
be  looked 
to  decide 

mess  was 
leeply  iii- 
1  deliber- 
error,  for 

versed. 


DRUNIiENNESS- INTOXICATION   AND    MENTAL   UNSOUNDNESS. 

Beasley  v.  State. 

[50  Ala.  14!).  1 

In  the  Supreme  Court  of  Alabama,  June  Term,  1873. 

Hon.  Thomas  M.  Peters,  Chief  Justice. 

"    RoHEKT  C.  BiacKELL,     ^ -^^sociatc  Justiccs 

Drunkenness  —Intoxication  and  Mental  Unsoundneaa  T>i.oH„»ori  i,„     t%      u 

may  produce  inioxication  or  mental  unsou,Kh.e°r  So  f  .r  TJu  .  .  ,  »'y--Dr°nkenne88 
no  defence  to  crime.  But  mental  unsoun'l.eir  resuUi^g  rTafZlZs^Zl'  'I  "l 
overthrows  the  prisoner.,  sense  of  right  and  wrong,  he  an  exc^Te  or^'liSSon  for  Sim;! 

From  the  Circuit  Court  of  Madison. 

Tried  before  the  Hon.  ^Y.  J.  IIaualson. 

Houston  <fe  Pryor  and  L.  P.  Walker,  for  the  prisoner. 

Ben.  Gardner,  Attorney-General,  for  the  State. 

Peteus,  C.  J.  -The  offence  charged  in  this  prosecution  is  thus  stated 
in  the  indictment:  -  Tliat  before  the  finding  of  this  indictment,  Henry 
Beasley,  unlawfully,  and  with  malice  aforethought,  killed  Joseph  Todd 
by  shooting  him  with  a  pistol ;  against  the  peace  and  dignity  of  the 
State  of  Alabama."     To  this  the  accused  pleaded   "  not  -uilty  "  and 
went  to  trial  on  this  plea  by  a  jury.     The  verdict  of  the  jury  was 
against  him,  and  he  was  convicted  of  murder  in  the  second  decrree   and 
sentenced  to  imprisonment  in  the  penitentiary  for  eleven  years.     From 
tins  Judgment  of  conviction  the  accused  appeals  to   this  court      The 
only  errors  complained  of  are  those   alleged  to  be  founded  on   the 
charges  of  the  court  below,  which  were  excepted  to,  and  made  a  part  of 
the  record  by  bill  of  exceptions. 

The  defence  set  up  on  the  trial  was  insanity,  from  the  effects  of  a 
gunshot  wound  in  the  head,  and  habitual  drunkenness.  Murder  in  the 
second  degree  is  thus  defined  in  the  Code:  "Every  other  homicide  " 
(murder  in  the  first  degree  excepted),  "  committed  under  such  circum- 
stances as  would  have  constituted  murder  at  common  law,  is  murder  in 
the  second  degree."  i  Blackstone  defines  murder  at  common  law  to  be 
when  a  person  of  sound  memory  and  discretion  unlawfully  killeth  any 
reasonable  creature  in  being,  and  under  the  king's  peace,  with  malice 


87 


»  Rev.  Code,  sect.  3653. 


578 


DRUNKENNESS. 


IJeasloy  v.  State. 


aforethought,  express  or  implied."  '  This  definition,  with  such  change 
of  phraseology  as  renders  it  suitable  to  the  institutions  and  government 
of  this  country,  is  adopted  and  ai)proved  l)y  the  courts  of  the  States, 
and  of  the  government  of  the  United  States. ^  This  court  has  declared 
that  the  law  of  homicide  in  this  State  is  derived  from  the  common  law 
of  England. 3  From  this  it  appears  that  the  sanity  or  insanity  of 
the  accused  is  involved  in  the  very  definition  of  the  offence  of 
murder  in  all  its  degrees,  and  is  necessarily  a  fact  which  in- 
fluences the  determination  of  the  jury  upon  the  question  of  guilt  or 
innocence.  In  the  case  of  Commonwealth  v.  Rogers,*  the  evidence 
showed  that  Rogers,  the  accused  stabbed  Ivincoln,  the  warden  of  the 
prison  in  which  Rogers  was  confined,  and  killed  him  without  any  prov- 
ocation whatever.  The  sole  defence  was  the  insanity  of  the  prisoner. 
Shaw,  C.  J.,  stated  the  law  of  that  case  in  these  words:  "  In  order  to 
constitute  a  crime,  a  person  must  have  intelligence  and  capacity  enougli 
to  have  a  crimin.il  intent  and  purpose.  *  *  *  In  order  to  be  re- 
sponsible, he  must  have  sufficient  power  of  memory  to  recollect  thi' 
relation  in  which  he  stands  to  others,  and  in  which  others  stand  to  him  ; 
that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice  and 
right,  injurious  to  others,  and  a  violation  of  the  dictates  of  duty."  ^ 

In  the  case  at  bar,  the  kilUng  was  most  clearly  proven.  There  can 
be  no  doubt  about  the  perpetration  of  the  criminal  act.  It  was  done  in 
a  manner  the  most  deliberate  and  cruel,  if  the  accused  was  of  sound 
memory  and  discretion  at  the  time  the  homicide  was  committed.  Then, 
the  defendant  would  be  clearly  guilty  as  charged  in  the  indictment,  if 
he  was  of  sound  memory  and  discretion  at  the  time  Todd  was  killed  by 
him.  To  show  that  the  accused  was  not  of  sound  memory  and  discre- 
tion at  the  time  he  committed  the  fatal  act  that  resulted  in  the  death  of 
Todd,  evidence  was  introduced  by  the  defence,  tending  to  show  that  the 
prisoner  had  shot  himself  in  the  head  some  nineteen  years  before  the 
trial  in  the  court  below,  which  produced  "  a  depression  in  the  skull,  and 
a  compression  of  the  brain  ;  "  that  after  this  wound,  which  was  on  the 
right  side  of  the  head,  the  prisoner  had  been  affected  with  "partial 
paralysis  in  his  left  arm  and  left  leg,"  up  to  the  day  of  the  trial,  and 
that  the  wound  in  the  head  still  remained  "sensitive  to  the  touch." 
Evidence  was  also  offered  in  the  defence,  which  tended  to  show  that 
for  several  years  before  the  killing,  the  accused  was  a  great  drunkard ;  " 


1  4  ni.i.  Com.  [195] ;  3  Inst.  47. 

-  Amer.  Law  of  Honi,,  by  Wharton,  p.  33; 
Med.  Juris,  by  Wharton  &  Stille,  (ed.  1855,) 
p.  664,  sect.  966. 


3  Pierson  v.  State,  12  Ala.  149. 

<  7  Mete.  500. 

6  «,  c.  1  Lead.  Cr.  Ca3.  87,  89. 


MKASLKY  V.  STATE. 


579 


Evidence  of  Drunkenness. 


ich  change 
ovcrnmcnt 
the  States, 
3  declared 
»minon  law 
nsanity  of 
)ffeiice    of 
winch  in- 
)f  guilt  or 
o  evidence 
den  of  the 
,  any  prov- 
e  prisoner, 
[n  order  to 
;ity  enough 
■r  to  be  re- 
collect the 
nd  to  him ; 
justice  and 
uty."5 
There  can 
vas  done  in 
s  of  sound 
Dd.     Then, 
ictment,  if 
IS  killed  by 
and  discre- 
le  death  of 
:)W  that  tlie 
jefore  the 
skull,  and 
vas  on  tlic 
' '  parti.'il 
e  trial,  and 
le  touch." 
show  that 
unkard;" 


"  that  he  was  generally  drunk  ;  "  his  habits  were  "  to  drink  from  a  half  to 
one  gallon  of  spirits  every  night,  and  largo  quantities  before  breakfast,, 
and  before  dinner,  and  before  supper  each  day."  lie  "  frequently  saw- 
sights  such  as  witches  and  devils,  and  imagined  that  men  were  after 
liim  to  kill  him."  He  fancied  that  "hair  grew  in  the  palm.s  of  his 
liands,"  which  he  tried  to  pluck  out,  and  in  "  his  mouth,  and  was  chok- 
ing him;  "  and  about  three  weeks  before  the  killing,  he  had  an  attack 
of  delirium  tremens.  There  was  also  proof,  that,  when  drunk,  he  was  "  a 
(Tiizy  man,  wild  and  furious,  and  without  si-nse  or  reason;  "  and  on 
the  Saturday  before  the  killing,  which  took  place  on  Monday,  "  he  was 
seeing  witches  and  devils,  and  was  a  wild  and  crazy  man."  There  was 
evidence  also  showing  that  on  Monday,  the  day  of  the  killing,  "  he  was 
in  like  condition,"  as  on  the  Saturday  before.  The  evidence  for  the 
prosecution  tended  to  show  that  the  killing  was  wholly  unprovoked,  and 
perpetrated  in  the  most  deliberate  and  brutal  manner ;  that  the  accused 
was  not  totally  deprived  of  memory  and  discretion  at  the  time  of  the 
commission  of  the  act,  which  constitutes  the  offence  charged.  There 
was  no  serious  conflict  in  the  testimony,  except  as  to  the  state  of  mind  of 
the  defendant,  in  the  court  below,  at  the  time  of  the  homicide. 

Upon  this  evidence  the  court  gave  seven  charges  to  the  jury,  each  of 
which  was  excepted  to  by  the  accused,  and  incorporated  into  the  record 
Ity  bill  of  exceptions.  The  first  of  these  charges  was  in  tliese  words : 
"Drunkenness,  in  itself,  was  no  palliation  or  excuse."  And  the  fifth 
charge  was  in  these  words:  ''Upon  the  evidence,  the  defendant  was 
•fuilty  of  murder  in  the  first  degree,  or  of  nothing." 

It  is  said  in  Martin  v.  State, ^  that  "where  there  is  any  rebutting 
proof,  the  court  ought  so  to  charge  as  to  recognize  its  effect."  This  is 
particularly  so  when  the  charge  is  general,  and  applies  to  the  whole 
case.  Here  the  proof  tended  to  show,  not  only  that  the  accused  was 
drunk,  but  when  drunk  was  "  a  crazy  man,  wild  and  furious,  and  with- 
out sense  or  reason ;  "  that  on  Saturday  before  the  killing  on  Monday, 
"  he  was  seeing  witches  and  devils,  and  was  a  wild  and  crazy  man ;  " 
and  on  Monday,  the  day  of  the  killing,  "  he  was  in  like  condition,  as  he 
liad  been  on  the  Saturday  before.  The  first  charge  of  the  court  above 
set  out  ignores  all  this  evidence  of  mental  unsoundness,  and  seems  to 
take  it  for  granted  that,  if  it  existed,  it  must  necessarily  be  the  imme- 
diate effects  of  the  defendant's  drunkenness.  Such  a  charge  is  vicious,, 
because  it  excludes  from  the  jury  all  the  evidence  of  mental  unsound- 
ness, which  might  or  might  not  be  a  palliation  or  excuse  for'  acts  which 


1  47  Ala.  564,  573. 


580 


DKUNKEXXKSt*. 


Bt'iiHlcy  V.  State. 


would  otlicrwiso  be  criminal,  according  to  the  degree  and  character  of 
the  mental  unsoundness.  The  policy  of  the  law  forbids  that  mere  drunk- 
einicss  alone  hIiouUI  do  away  with  the  responsibility  for  crimes.^  But 
119  all  crime  implies  some  degree  of  intelligenco  in  the  criminal,  the  hu- 
manity of  the  law  will  not  sanction  the  punislinient  of  a  person  incapa- 
ble of  rational  action.'-  Drunkenness  may  be  said  to  have  two  degrees 
in  its  effects  upon  the  memory  and  discretion.  The  one  of  these  is 
mere  intoxication.  No  degree  of  this  will  palliate  or  excuse,  where  it 
is  the  effect  of  the  voluntary  act  of  the  defendant.*'  Blackstone,  and 
the  older  authorities,  say  that  drunkenness  itself  is  a  crime;  and,  "the 
law  of  England,  considering  how  easy  it  is  to  counterfeit  this  excuse, 
and  how  weak  an  excuse  it  is,  though  real,  will  not  suffer  any  man  thus 
to  privilege  one  crime  by  another."  '  The  other  effect  of  drunkenness 
is  mental  unsoundness,  brought  on  b}' excessive  drinking,  which  remains 
after  the  intoxication  has  subsided.  This  latter  mental  unsoundness,  if 
it  exists  to  such  excess  that  the  accused  loses  the  government  of  his 
reason,  may  be  interposed  as  a  palliation  or  excuse  for  crime. ^  Here 
there  was  proof  not  only  of  excessive  intoxication,  but  also  some  procif 
of  mental  unsoundness  which  was  separable  from  mere  intoxicatidu. 
It  should,  therefore,  have  been  left  to  the  jury  to  determine  whetlu  r 
there  was  any  mental  unsoundness  which  was  separable  from  the  in- 
toxication ;  and  if  there  was,  whether  it  was  sufficient  to  overthrow  the 
defendant's  sense  of  right  and  wrong.  The  defendant's  drunkenne>s 
might  be  looked  to  as  a  means  of  producing  this  effect.  The  charge  of 
the  court  was  calculated  to  misdirect  the  jury  in  making  this  iiKjuiry. 
Tlie  evidence  of  insanity  of  the  accused  may  have  been  regarded  l)y  the 
learned  judge  in  the  court  below  as  very  feeble,  yet  this  would  not  jus- 
tify a  charge  which,  in  effect,  withdrew  it  from  the  jury.*^ 

The  second  charge  above  quoted,  which  is  numbered  the  fifth  in  tl\p 
bill  of  exceptions,  is  erroneous.  It  is  a  charge  upon  flu  To*  t  of  the 
evidence,  without  the  request  of  either  party,  ^n  7  '/or  v.  A/a?c,- this 
was  declared  to  be  error.     Besides  the  chan  l  free  froT'  contra- 

dictions in  itself.  It  is  ver}'  well  calculatetl  .  onfuse  and  li  iead  the 
jury.  The  testimony  was  not  wholly  free  frm/i  contrntlictions.  Yet  it 
is  founded  on  the  presumption  that  thei-e  was  no  s  eh  contradiction. 
Doubtless  the  learned  judge  intended  to  charge  the  jury,  if  they  believed 


'  Whart.  &  Stille's  Med.  Juris.,  p.  50, 
^ect.  66. 

2  U  S.  r.  McGlue,  1  Curt.  C.  C.  1;  1 
liCad.  Cr.  Cas.  87,  and  notes,  93 ;  Rogers' 
Case,  supra,  1  Russ.  Cr.  1,2. 

'  State  V.  Bullock,  13  Ala.  413. 


*  4  Bla.  Com.  25. 

6  U.  S.  V.  Drew,  1   Lead.  Cr.    Cas.  115 
and  notes. 

0  Martin  v.  State,  47  Ala.  564. 
■  43  Ala.  312. 


;haraeter  of 
nere  drmilv- 


incs. 


But 
Hill,  tho  liu- 
son  incapa- 
;wo  degrees 
of  these  i» 
30,  where  it 
kstone,  and 
and,  "tho 
his  excuse, 
y  man  thus 
runkenness 
ic'h  remains 
•undness,  if 
lent  of  his 
ine.-'"'  Here 
some  proof 
itoxicatioii. 
lie  whether 
om  the  in- 
.'rthrow  the 
runkenness 
e  elifirge  of 
is  inquiry, 
•(led  l)y  the 
dd  not  jus- 
fifth  in  tlio 
fpct  of  the 
/State,'  this 
onn  contra- 
[ii.5lead  the 
ns.  Yet  it 
itradictioii. 
ey  believed 

Cr.    Cas.  115 


INTOXICATION   OF   INI'ANT. 


r.8i 


Coinnionwoalth  v.  French. 


fi'om  the  evidence  that  the  defendant  was  merely  drunk  and  not  insnne, 
when  he  committed  the  act  of  killing,  then  he  was  guilty  as  charged  in 
the  Indictment;  but,  if  they  believed  he  was  so  insane  as  not  to  know 
riglit  from  wrong,  then  he  was  not  guilty.  This  wouM  have  been  cor- 
rect. 

The  unsoundness  of  mind  whicli  excuses  a  criminal  act  must  be  of 
such  degree  as  deprives  the  accused  of  the  capacity  to  know  right  from 
wrong.     Short  of  this  it  does  not  excuse.' 

The  monstrous  barbarity  of  the  act  of  killing  shouhl  not  be  admitted 
as  a  presumption  of  insanity.'^ 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  is  re- 
manded for  a  new  trial ;  and  the  accused,  Henry  Beasley,  will  be  held 
to  answer  the  indictment  under  which  he  has  been  arrested,  until  dis- 
charged by  due  course  of  law. 


INTOXICATION  OF  INFANT. 
C03LM0NWEALT1I    V.  FrENCII. 

[Thatch.  Cr.  Cas.  108.] 

In  the  Boston  Municipal  Court,  March  Term,  1827. 

Before  Hon.  Pkteu  O.  Tiiatcheu,  Judge. 

A  temporary  mental  derangement  prouuced  by  drinking  intoxicating  liquor,  under  which 
ii  boy  of  thirteen  years  of  age  committed  u  theft,  authorizes  a  jury  to  acquit  him. 

This  was  an  indictment  against  the  prisoner,  for  stealing  the  watch  of 
one  Harvey  McClenathan,  in  his  shop,  on  the  17th  of  February,  1827. 
McClenathan,  the  prosecutor,  testified  that  the  prisoner,  who  was  in  his 
thirteenth  year,  with  one  Cyrus  Wilder,  a  boy  of  about  the  same  age, 
came  twice  to  his  shop  in  Purchase  Street,  on  Saturday  evening,  tlie 
17th  of  February,  at  about  seven  o'clock.  The  second  time  he  sold  to 
French  a  cigar,  and  to  Wilder  a  cake  of  ginger  bread.  While  they  were 
in  his  shop  he  took  out  his  watch  and  hung  it  over  his  desk,  which  was 
near  to  the  door  leading  to  the  street.  Soon  after  they  had  left  the 
shop  the  second  time.   Wilder  returned  for  another  cake   of  ginger 


'  1  Rus.  Cr.  9,  Sharswood's  ed.  and  notes; 
Mosler'8  Case,  4  Pa.  St.  2«4. 


Stark's  Case,  1  .Strobh.  479. 


582 


DRUNKKxNNESS. 


Coininouwealth  i'.  French 


"bread,  but  came  no  further  than  the  door.  Shortly'  afterwards  the 
watch  was  missed,  and  his  suspicions  i-ested  on  these  boys.  He  went 
to  the  house  where  French  lived,  saw  him  andcliarged  him  witli  stealiiijj; 
the  watch,  but  he  strenuously  denied  the  fact.  The  next  morning, 
however,  French  informed  him  that  the  watch  was  in  the  possession  of 
one  Alfred  Johnson,  anotlier  lad,  and  upon  a  warrani  Johnson  was  taken 
■with  the  watch,  and  he,  French  and  Wilder  were  carried  before  th(> 
police  court,  where,  upon  their  examination,  Johnson  and  Wilder  were 
discharged,  and  French  was  committed  for  trial. 

Curtis  Wilder  testified,  that  he  knew  nothing  of  the  taking  of  the 
watch  till  French  showed  it  to  him  as  they  were  going  from  McClenu- 
than's  shop  that  evening  to  a  book  auction,  in  Broad  Street.  Alfred 
Johnson  testified  that  Frencli  and  Wilder  came  that  evening  to  a  cellar 
where  he  was,  that  French  took  him  aside  and  informed  him  that  he  hiul 
■iaken  a  watch.  He  advised  him  to  return  it  to  the  owner,  and  he  got 
it  into  his  own  possession,  with  the  intention  of  ioinrning  it  to  the 
owner  the  next  morning.  Tlie  evidence  for  the  prosecution  was  here 
closed. 

A  female,  whose  name  was  Miram,  a  witness  for  the  prisoner,  testified 
that  she  resided  in  the  family  of  the  f atlier  of  tlie  prisoner ;  that  tho 
evening  on  which  this  occurred,  French  appeared  to  be  intoxicatt-d 
•with  liquor,  and  under  a  derangement  of  his  intellect,  which  she  imputed 
to  the  liquor  which  he  had  taken.  McClenathan,  being  called  again, 
admitted  that  when  the  boys  first  came  to  his  shop,  he  sold  them  throe 
cents  worth  of  tom  and  jerry,  wliich  they  drank  t^are.  On  beiMji 
interrogated  as  to  the  composition  of  that  liquov,  he  refused  to  answer 
the  question  until  he  was  informed  by  the  court  that  it  was  a  proper 
question  to  be  answered  *  v  him.  He  then  said  that  the  liquor  was 
composed  of  eggs  and  sugar,  beaten  together  with  ginger,  allspice, 
nutmeg  and  saleratus,  to  which  was  added  a  portion  of  rum,  brandy  or 
gin  to  suit  the  purchaser.  He  further  said  that  he  sold  this  composition 
to  all  who  wanted  it,  children  as  well  as  men,  and  that  it  was  usually 
sold  in  shops  similar  to  his  own. 

Austin,  for  the  Commonwealth.     A.  Moore,  for  the  prisoner. 

TiiATciiKii,  J.,  instructed  the  jury  substantially  as  follows:  — 

If  you  believe  that  the  prisoner  had  been  put  into  a  state  of  mentnl 
derangement,  by  drinking  the  noxious  liquor  and  smoking  the  ciji:ir 
which  the  prosecutor  sold  to  him  at  the  time,  and  committed  the  act 
while  in  this  condition,  it  will  be  your  duty  to  acquit  him  of  the  charge. 
It  is  an  immoral  act  in  tlie  prosecutor  to  sell  to  these  children  such  i> 
vile  composition,  and  it  miglit  well  have  hajipened  that  tiie  combined 


DUUNKENNESS. 


583 


Insanity  Resulting  Tlierefrom. 


crwarda  the 
.  He  went 
vith  stealiiijr 
ct  morning, 
jssession  of 
)n  was  taken 
before  the 
Vilder  were 

king  of  the 
(1  McClenu- 
et.  Alfred 
r  to  a  cellar 
that  he  had 
and  he  m)\ 
?  it  to  the 
n  was  hen- 

er,  testified 
f;  tluit  the 
intoxicate!  1 
he  imputed 
lied  again, 
bhem  three 
On  being 
to  answer 
3  a  proper 
liquor  was 
',  allspice, 
brandy  or 
)mpositinii 
as  usually 

ir. 

of  mental 
the  cigiir 
d  the  act 
16  charge. 
sn  such  p 
combined 


influence  of  the  liquor  and  cigars  on  a  child  of  so  tender  years  would 
produce  a  temporary  insanity.  This  case  essentially  differs  from  that 
where  a  crime  is  committed  by  a  person,  who  by  a  free  indulgence  of 
strong  liquors,  has  at  the  time  voluntarily  deprived  himself  of  his  reason. 
By  the  policy  of  the  law  this  rather  enhances  the  offence.  It  was,  how- 
ever, an  excuse  constantly  offered  by  offenders,  and  it  is  certainly  true, 
that  but  few  crimes  are  committed  by  persons  who  are  habitually  tem- 
perate in  the  use  of  ardent  spirits. 

The  jury  returned  a  verdict  of  acquittal,  and  after  an  admonition 
from  the  court  the  prisoner  was  discharged. 


DRUNKENNESS  — INSANITY  RESULTING  THEREFROM 

Corn  WELL  v.  State. 

[Mart.  &  Yerg.  147.] 
In  the  Supreme  Court  of  Tennessee,  1827. 


Hon.  Robert  Wiiytk, 
"    John  Cathon, 
"    Jacob  Pkck, 

"      IIeNUV  CUAllB, 


Judges. 


Insanity  resultlnar  from  long  continued  drunkennfss  is  an  excuse  for  crime;  but  insanity 
tlie  immediate  result  of  intoxication,  is  not.  * 

At  the  May  term  of  the  Circuit  Court  of  Davidson  county,  Burrell 
Cornwell  and  Moses  M'Clanahan  were  indicted  for  the  murder  of  Owen 
Hughes. 

In  the  progress  of  the  cause  Lewis  Carter  was  introduced,  who  swore 
that  on  the  evening  of  the  homicide,  and  about  two  hours  previously, 
the  prisoner  and  ^I'Clanahan  came  to  the  house  of  witness,  and  M'Clan- 
ahan asked  witness  whether  he  had  seen  a  man  by  the  name  of  Hughes, 
after  which  he  called  for  liquor,  which  he  and  the  prisoner  divided  be- 
tween them,  touched  glasses  and  drank,  after  which  M'Clanahan  took 
a  knife  out  of  his  pocket,  and  observed  to  witness  that  there  was  but  one 
man  against  whom  he  hml  enmity,  and  struck  his  knife  several  times 
into  the  baluster,  and  said  if  he  caught  him  that  night  he  would  give 
him  first  hell;  he  then  said  to  the  prisoner,  "  let  us  go."     To  the  ad- 


584 


DRUNKKNNESS. 


Coniwj'll  r.  State. 


missions  of  tlio  doclarations  of  M'Clanahan,  as  evidence  against  him, 
the  prisoner,  by  his  counsel,  objected  ;  but  the  objection  was  overruled, 
and  the  evidence  admitted.  It  was  proved  that  the  prisoner  was  intox- 
icated, and  that  a  free  use  of  ardent  spirits  on  the  part  of  the  prisoner 
produced  partial  insanity. 

The  court,  after  some  remarks  upon  the  subject  of  malice,  charged 
the  jury,  "  that  if,  at  the  time  the  homicide  was  committed,  the  prisoner 
had  not  sullicient  understanding  to  distinguish  right  from  wrong,  and 
was  in  a  state  of  insanity,  it  wotdd  be  excusable;  but  that  nuist  be 
proved  ;  but  if  his  insanity  or  bad  conduct  arose  from  drinikenness,  it 
was  no  excuse.  There  may  be  cases  where  insanity  is  produced  by  long- 
continued  haltits  of  intoxication  ;  but  it  must  be  a  permanent  insanity. 
Insanity  which  is  the  immediate  effect  of  intoxication  is  no  excuse ;  the 
party  is  fully  resi)onsible  for  all  his  acts." 

The  counsel  ft)r  the  prisoner  requested  the  court  to  charge  the  jury, 
if  they  belii'ved  all  the  circumstances  of  the  case,  that  the  prisoner  at 
the  time  of  slaying  labored  under  a  temporary  suspension  of  reason, 
although  intoxication  might  have  been  the  exciting  cause,  it  is  a  cir- 
cumstance of  excuse  or  mitigation,  and  more  especially  if  intoxication 
were  not  int.'ndcci  at  the  time  of  drinking,  but  tlie  same  was  accidental, 
or  a  consequence  not  intended  or  apprehended.  But  the  court  refused 
to  cliarge,  except  as  above. 

The  jury  found  the  ])risoner  guilty  of  murder;  upon  which  finding 
judgment  was  entered  tlu^t  he  be  hanged,  etc.  A  rule  for  a  new  trial 
was  obtained,  which,  upon  argument,  was  discharged,  and  the  case 
brought  by  the  prisoner  to  this  court  by  appeal  in  the  nature  of  a  writ 
of  error. 

Balfli,  Dtiuaot,  and  0.  B.  Hayes,  for  appellant. 

A.  Hayes,  Attorney-General,  and  Grunthi,  for  the  State. 

The  opinions  of  Wuvtk,  Cathon,  and  Ckabb,  J.J.  — Peck,  J.,  dis- 
senting—  were  delivered  ])y  Crabb,  J. 

(Omitting  rulings  on  other  points.) 

It  is  also  contended  that  the  court  below  erred  in  their  charge  to  the 
jnr}',  and  in  refusing  to  charge  as  requested.  The  bill  of  exceptions  pre- 
sents us  with  wliat  the  jutlge  said,  as  follows:  "  The  court,  in  charging 
tlie  jury,  after  defining  the  crime  of  murder,  stated  that  the  fact  of  kill- 
ing being  provcl,  the  law  presumes  malice  ;  and  it  lies  on  the  defendant 
to  show,  from  proof,  cirv^^umstances  of  excuse  or  alleviation,  unless  thev 
otherwise  apjiear,  INIalice  is  express  or  implied  ;  and,  when  there  is  no 
previous  grudge  it  is  implied  when  one  kills  another  with  a  deadly 
weapon,  not  having  been  previously  assaulted,  in  which  case  it  is  mur- 


DRUNKENNESS   AN   EXCUSK    VtHl    CKIME. 


585 


Till'  Diuijrors  of  Hiicli  Doctrine. 


gainst  him, 
overruli'd, 
was  intox- 
le  prisoner 

c,  charged 
Ik'  prisoner 
n-ong,  and 
!it  must  be 
u'nness,  if 
(1  l)v  long- 
t  insanity. 
:cu.se ;  the 

the  jury, 
iri.soner  at 
)f  reason, 
t  is  a  cir- 
oxicatioii 
fC'i(len*!il, 
t  refused 

^h  finding 
new  trial 
the  case 
of  a  writ 


,  J.,  dis- 


;e  to  the 
ons  pre- 
Jharging 
tof  kill- 
fendant 
ess  tliev 
're  is  no 
deadly 
is  mur- 


der;  you  will  in(juire  wlu'ther  tiiere  was  express  malice,  or  wliether 
there  was  a  previous  assault.  If,  ut  the  time,  he  had  not  suflieient  un- 
derstanding to  know  right  from  wrong,  and  was  in  a  state  of  insanity, 
it  would  be  an  excuse  ;  but  that  uiust  l)e  proved.  But  if  his  insanity  or 
unusual  bad  conduct  arose  from  drunkenness,  it  is  no  excuse.  There 
in:iy  Y  <  ises  where  insanity  is  produced  by  long-continued  habits  of 
into:  1  tion,  but  it  nuist  hv  a  permanent  insanity.  Insanity  which  is 
the  iuiinediate  effect  of  intoxication  is  no  excuse  ;  he  is  cciunlly  respon- 
sible for  all  his  acts.  The  counsel  for  the  })risoner  recpiested  the  court 
to  charge  the  jury,  if  they  believed,  from  nil  the  circumstances  of  the 
case,  that  the  defendant  at  the  time  of  the  slaying  laI)ore(l  mider  a  tem- 
porary suspension  of  reason,  and  was  insane,  althougii  intoxication  might 
have  been  the  exiiiting  cause,  it  is  a  circumstance  of  mitigation  or  ex- 
cuse ;  and  more  especially,  if  intoxication  were  not  intended  at  the  time 
of  drinking,  but  the  same  were  accidental,  or  a  consequence  not  intended 
or  apprehended.  But  the  court  would  not  so  charge,  but  said  insanity 
thus  produced  was  no  e.vcuse." 

Three  cases  of  conviction  for  murder  have  been  brought  before  this 
court  at  the  present  term  ;  in  two  of  which,  the  prisoner  was  defcmded, 
in  the  court  below,  on  the  ground  of  madness,  occasioned  l)y  drunken- 
ness ;  and  yet  in  neitlier  does  it  seem  to  us  was  there  a  colorable 
foundation  for  such  a  defence.  This  court  would  be  remiss  in  the 
[)erform.ance  of  their  duty  if  they  did  not,  under  these  circumstances, 
declare  the  law  exi)licitly  on  this  most  important  suoject.  In  the  argu- 
ment of  these  causes  very  untenable  positions  have  been  assumed,  and 
very  dangerous  doctrines  have  been  advanced  by  counsel.  And  from 
what  was  stated  by  some  of  those  counsel,  these  doctrines  have  been 
repeatedly  urged,  an!  sometimes  sanctioned  in  the  courts  below. 

It  has  become  fashionable  of  late  to  discourse  and  philosophize  much 
on  mental  sanity  and  insanity.  New  theories  have  been  broached, 
and  various  grades  and  species  of  mania  have  been  indicated.  Some 
reasoners  have  gone  so  far  as  to  maintain  that  we  are  all  partial 
maniacs. 

Whatever  differences  of  opinion  there  may  be  as  to  the  construction 
and  operations  of  the  mind  of  man,  whatever  ditflculty  in  discovering 
the  various  degrees  of  unsoundness,  it  is  only  necessary  for  us  to  ascer- 
tain the  kind  of  prostration  of  intellect  which  is  requisite  to  free  a  man 
from  punishment  for  crime  by  the  law  of  the  land.  It  is  with  this  alone 
we  have  to  do.  "  What  the  law  has  said,  we  say  ;  in  all  things  else  we 
are  silent.  We  put  our  feet  in  the  tracks  of  our  forefathers  ;  von  mens 
hicticrnio,  sed  qiim  jn'oicepit  Offellus.     Let  us  then  for  a  moment  resort 


586 


DRUNKENNESS 


Cormvell  v.  State. 


to  the  sages  of  the  hiw  of  different  ages,  and  learn  from  them  whether 
that  species  of  frenzy  which  is  produced  by  inebriety  constitutes  any 
excuse  for  crime,  and  what  sort  of  insanit}^  it  is  which  will  serve  this 
purpose  ? 

The  good  and  the  great,  the  humane  yet  firm,  Sir  Matthew  Hale,  in 
in  his  history  of  tiie  I'loas  of  the  Crown  divides  madness,  dementia,  into 
three  kinds, — idiocy,  accidental  or  adventitious  madness,  and  drunk- 
enness. "  The  second  species,  when  it  amounts  to  a  total  alienation  of 
the  mind,  or  perfect  madness,  excuses  from  the  guilt  of  felony  and 
ti'eason,  and  further,  persons  atflicted  with  accidental  madness,  whether 
temporary  —  as  in  the  case  of  lunacy  —  or  continued.  If  they  are  totally 
deprived  of  the  use  of  reason,  cannot  be  guilty  ordinarily  of  capital 
offences ;  for  they  have  not  the  use  of  understanding,  and  act  not  as 
reasonable  creatures  ;  but  their  actions  are,  in  effect,  in  the  condition  of 
brutes." ' 

"The  third  sort  of  madness  is  that  which  is  dementia  affectata, 
namely,  drunkenness.  This  vice  doth  deprive  man  of  the  use  of  reason, 
and  puts  many  men  into  a  perfect  but  temporary  frenzy ;  but  by  tlie 
laws  of  England,  such  a  person  shall  have  no  privilege  by  this  voluntarily 
contracted  madness,  but  shall  have  the  same  judgment  as  if  he  were  in 
his  right  senses." 

In  the  case  of  Reniger  v.  Fogossa,-  wo  have  a  rule  laid  down,  which 
has  been  approved  again  and  again,  from  the  early  day  in  whicli  it  was 
advanced  to  the  present  time,  "  that  if  a  person  that  is  drunk  kills  an- 
other, this  shall  be  felony,  and  he  shall  be  hanged  for  it ;  and  yet  he  did 
it  through  ignorance,  for  when  he  was  drunk  he  had  no  understanding 
or  memory  ;  but,  inasmuch  as  that  ignorance  was  occasioned  by  his  own 
act  and  folly,  and  he  might  have  avoided  it,  he  shall  not  be  privileged 
thereby."  Here  we  have  the  strongest  case  put;  a  case  of  a  total  de- 
privation of  understanding  by  drunkenness.  Yet  it  is  held  to  form  no 
excuse.  Lord  Coke,  in  his  commentaries, ^  says:  "As  for  a  drunkard, 
who  is  voluntarius  daemon,  he  hath  no  privilege  thereby;  but  what  hurt 
or  ill  soever  he  dotli,  his  drunkenness  does  aggravate  it."  And  we  are 
told  in  Beverh/s  Case,^  "that  although  he  who  is  drunk  is  for  the  time 
non  compos  mentis,  yet  his  drunkenness  doth  not  extenuate  his  act  or 
offence,  nor  turn  to  his  avail."  Hawkins,  in  his  Pleas  of  the  Crown, ■'• 
says:  "  That  he  who  is  guilty  of  any  crime  whatever,  through  his  vol- 
untary drunkenness,  shall  be  punisheci  for  it  as  much  as  if  he  had  been 


'  p.  30. 

«  Plowden,  19 

3  p.  247  11. 


<  4  Rep.  125. 

6  Vol.  I.,  ch.  1,  sect  6. 


cm  whether 

titutes  an}- 

serve  this 

w  Hale,  in 

lentia,  into 
md  drunk- 
ienation  of 
felony  and 
s,  whether 
are  totally 
of  capital 
act  not  as 
»ndition  of 

affectata, 
of  reason , 
)ut  by  the 
oluntarily 
e  yfere  in 

wn,  which 
ich  it  Mas 
:  kills  an- 
yet  he  did 
rstanding 
y  his  own 
privileged 

total  do- 
>  form  no 
Irunkard, 
vhat  hint 
d  we  are 

the  time 
is  act  or 

Crown,'" 
1  his  vol- 
had  been 


DRUXKENXKSS. 


587 


Tlic  Early  KiwlLsh  Cases  llevievvcd. 


sober."  The  erudite  commentator  on  the  laws  of  England,  writes  as 
follows  on  this  subject:  ^  "As  to  artificial,  voluntarily  contracted  mad- 
ness, by  drunkenness  or  intoxication,  which,  depriving  men  of  their 
reason,  puts  them  in  a  temporary  frenzy,  our  law  looks  upon  this  as 
an  aggravation  of  the  offence,  rather  than  as  an  excuse  for  any  criminal 
misbehavior.  The  law,  considering  how  easy  it  is  to  counterfeit  this 
excuse,  and  how  weak  an  excuse  it  is,  thougli  real,  will  not  suffer  any 
man  thus  to  privilege  one  crime  by  another." 

But  the  part  of  the  Judge's  charge  which  is  most  earnestly  objected  to 
is  in  the  following  words :  "  There  may  be  cases  where  insanity  is  pro- 
duced by  long-continued  habits  of  intoxication,  but  it  must  be  a  per- 
manent insanity. 

It  has  been  already  stated  by  us  that  madness,  or  insanity,  if  the  term 
be  preferred,  occasioned  immediately  by  drunkeiniess,  does  not  excuse. 
Yet  the  judge  correctly  says,  "  that  if,  by  the  means  of  drunkenness  a 
permanent,  or,  as  Lord  IIalk  to  the  same  effect  ex[)ressed  it,  an  habitual 
or  fixed  madness  be  caused,  that  it  will  excuse."  '-* 

In  the  above  extracts  we  see  the  law  in  this  respect.  A  contrary  doe- 
trine  ought  to  be  frowned  out  of  c'rculation,  if  it  has  obtained  it,  by 
every  friend  to  virtue,  peace,  quietness  and  good  government. 

The  history  of  criminals  and  criminal  trials  shows  that  he  who  has  not 
learned  betimes  to  restrain  the  evil  inclinations  of  our  nature,  —  envy, 
malice,  revenge,  and  their  kindred  passions, —  but  has  a  sufHciency  of 
moral  sense  left  to  deter  him  uona.  the  commission  of  enormity  while 
sober,  will  often  "  screw  his  coura?;e  to  the  sticking-point,"  by  the  free 
use  of  ardent  spirits,  and,  thus  made  able  to  silence  the  twinges  of  his 
conscience,  will  voluntarily  imitate  the  demon.  But  let  courts  once  ap- 
prove the  doctrine  now  contended  for,  and  it  will  not  be  resorted  to  as  a 
plea  by  persons  of  this  description  alone  ;  but  even  the  cold-blooded, 
calculating  assassin  will  never  be  a  sober  homicide;  he  will  always  ex- 
hibit himself  at  the  bar  of  a  court  of  Justice  as  a  specimen  of  insanity 
produced  by  drunkenness.  And  thus  this  degrading  and  disgraceful, 
yet  too  common  vice,  instead  of  being  hunted  from  society  as  the  bane 
of  good  morals  and  social  and  domestic  happiness,  will  be  converted 
into  a  shield  to  protect  from  punishment  the  worst  of  crimes.  All  civil- 
ized governments  must  punish  the  culprit  who  relies  on  so  untenable  a 
defence ;  and  in  doing  so  they  preach  a  louder  lesson  of  morality  to  all 
those  who  are  addicted  to  intoxication,  and  to  parents,  and  to  guard- 


■  4  Black.  Ch.  25,  26. 


»  SeeH.  H.  P.C.pt.  1,  ch.  4. 


r.88 


DRUNKENNESS. 


Ciirtcr  1'.  State. 


ians,  and  to  youth,  and  to  sooiely,  than  "  comes  in  the  cold  abstract 
from  pulpits." 

In  order  to  be  clearly  understood,  we  have  su|)poscd  the  strongest 
case,  — a  case  of  entire  jirostration  of  intellect  immediately  occasioned 
by  drunkenness,  and  have  said  that  that  constitutes  no  excuse. 

Instances,  however,  of  heinous  offences,  committed  under  such  cir- 
cumstances, are  boliovod  to  be  of  rare  occurrence.  They  are  much 
oft cner  the  result  of  that  midway  state  of  intoxication  which,  although 
sufTicient  to  stimulate  the  evil-disposed  to  actions  correspondent  with 
their  feelings,  would  not  excite  the  good  mnti  to  criminal  deeds.  It  is 
generally  the  drunken  man  acting  out  the  sober  man's  intent.  He  says 
and  does  when  drunk  what  he  thinks  when  sob^r. 

Tlie  court  entirely  concur  with  the  Circuit  Court  in  the  charge  given 
to  the  jury. 

Parts  of  this  opinion  may  appear  to  partake  of  the  character  of  a  moral 
lecture.     It  is  believed  to  be  called  for  by  the  occasion. 

We  have  scon  before  us  this  day  three  fellow -beings  who  aie  about  to 
be  ushered  into  the  presence  of  their  Maker,  two  of  whom  may  probably 
attribute  his  unnatural  exit  from  this  world  to  the  immoderate  use  of 
ardent  spirits.  Disagreeable  as  it  is,  the  solemn  duty  is  devolved  upon 
the  court  of  pronouncing,  in  this  instance  also,  the  sentence  of  the  law 
that  the  judgment  of  the  Circuit  Court  be  affirmed. 


INTOXICATION— INSANITY    IlESULTING  THEREFROM  — TEST  OF  IN- 
sanity —  partial  insanity. 
Carter  v.  State. 

[12  Tex.  500.] 

In  the  Supreme  Court  of  Texas,  1854. 

Hon.  John  Hemphill,  Chief  Justice. 

„  „^  '    y  Associate  Justices. 

"        ROVALL  T.  WUKKLEK,  i 

1.  Voluntary  intoxication  does  not  excuse  or  palliate  a  crime,  through  ineanity—  mania 

a  potu  or  delirium  tremens  —  may. 

2.  Testof  Insanity  —  Partial  Insanity.— The  test  of  insanity  is  the  ability  to  distiniraish 

bct'.veen  right  and  wrong.    In  case  of  partial  insanity,  the  question  is  whether  the 


d  abstract 


strongest 
jccasioned 


•  such  cir- 
are  mucli 
,  although 
ident  with 
ds.  It  is 
He  says 

irge  given 

)f  a  moral 

about  to 

probably 

ite  use  of 

ved  upon 

F  the  law 


'  OP  IN- 


y— mania 

istinmiish 
ether  the 


CAliTEK    V.    STATE. 


The  Facts  of  the  Case, 


589 


prisoner  was  cupublc  of  distinguishing  between  riglit  and  wrong  in  the  particular  con- 
nection in  whicli  the  unlawful  act  was  done. 

Appeal  from  Panola.  Indictment  for  murder  of  William  Mills.  The 
killing  occurred  in  the  town  of  Pulaski,  near  a  grocery,  on  the  3rd  of 
December,  1851.  The  prisoner  had  been  drinking  to  excess  for  several 
days,  and  more  or  less  for  several  weeks.  On  the  day  of  the  killing 
there  were  several  persons  in  and  about  the  grocery,  drinking  and 
playing  cards.  While  the  prisoner  and  one  Dodson  were  playing 
cu'ds,  the  latter  said  to  the  other,  on  some  trivial  occasion,  that 
he,  the  prisoner,  did  not  have  a  soul  larger  than  a  nuistard  seed.  A 
b3'stander,  who  stated  that  he  considereil  it  unjust,  remarked  to  the 
prisoner  in  tiie  same  spirit,  that  if  it  were  he,  he  would  not  take  that. 
Thereupon  the  prisoner  struck  at  Dodson,  and  a  fight  ensued  between 
them,  during  Avhich  Mills  stood  by  and  declared  that  no  one  should 
nitcrfere  until  one  hollowed,  and  which  ended  in  Dodson  knockina  the 
prisoner  down  with  a  piece  of  chimney  timber  by  a  blow  on  the  head. 
After  this,  the  prisoner  \v:is  rnntingand  raving  aronnd  the  premises,  with 
his  gun,  and  by  his  appearance  and  manner  caused  some  fear  that  he 
would  injure  some  of  the  i)arty,  and  from  the  testimony  it  seemed  that 
two  or  three  of  the  party  were  each  apprehensive  of  an  attack  by  the 
prisoner.  At  this  time  Mills  remarked  to  Dodson  that  if  he  woidd  give 
him  a  good  whii)ping  he  would  go  home  and  behave  himself.  Mills, 
and  his  brother-in-law,  Baker,  loaded  a  gun,  and  Mills  picked  up  a  two 
pound  weight  and  })ut  it  in  his  pocket.  A  shoi-t  time  before  tlu' killing. 
Mills  took  a  bowie  knife  which  was  handy,  and  put  it  in  his  bosom.  It 
did  not  appear  whether  the  prisoner  knew  of  these  hostile  actions  on 
the  part  of  Mills  or  not.  The  prisoner  started  and  went  a  short  dis- 
tance down  the  hill  from  the  grocery,  and  shot  off  one  barrel  of  his 
gun.  Deceased  proposed  to  Dodson  to  go  down  to  him ;  Dodson 
refused  to  go,  remarking  that  he  might  shoot.  Deceased  went,  and  as 
he  approached  the  prisoner  asked  him  whom  he  shot  at.  The  prisoner 
replied  he  knew  whom  he  would  shoot.  Deceased  replied  he  would  not 
shoot  a  deer ;  told  him  he  was  his  best  friend,  to  put  down  his  gun  and 
come  in,  and  Dodson  Avould  treat.  Deceased  kept  advancing ;  prisoner 
told  him  not  to  come  any  further  or  he  would  shoot,  and  presently  did 
shoot  and  inflicted  the  wound  which  caused  death.  The  shot  appeared 
to  have  been  duck  shot,  and  some  of  them  were  flattened  against  the 
t.vo  pound  weight  which  the  deceased  still  had  in  his  pocket.  Several 
of  the  witnesses  who  took  up  the  deceased,  testified  that  he  had  no 
weapons  about  his  person.  The  prisoner  was  a  quiet  peaceable  man 
when  sober,  but  troublesome  and  quarrelsome  when  drunk.     There  was 


590 


DRUNKENNESS. 


Carter  v.  State. 


an  effort  to  prove  that  the  prisoner  had  been  rendered  insane  by  excessive 
drinking  and  the  l)low  on  the  head.  There  was  in  proof  a  vague  remark 
of  tlie  prisoner,  made  soon  after  he  was  arrested,  to  prove  an  old 
grudge.  The  prisoner  and  the  deceased  had  been  near  neighbors  for  a 
long  time,  and  so  far  as  everybody  knew  had  always  been  friendly. 
The  prisoner  made  no  effort  to  escape. 

Verdict,  guilty  of  murder  in  the  second  degree,  and  confinement  in 
the  penitentiary  for  three  years. 

M.  D.  Rogers  and  S.  M.  Hyde,  for  appellant ;  L,  D.  Evans,  with 
them. 

The  Attorney-General  for  the  State. 

WlIEKI.Kl!,  J. 

(Omitting  other  rulings.) 

The  defence  was  tliat  at  the  time  of  committing  the  homicide  the 
accused  was  insane,  occasioned  by  the  excessi.  *  use  of  ardent  spirits. 
The  court  gave  instructions  to  the  jury  upon  the  law  applicable  to  this 
defence,  which  were  not  and  are  not  now  complained  of.  But  it  has 
l)een  insisted  in  oral  ai'gument  at  the  bar,  that  certain  legal  principles 
of  which  the  accused  should  have  had  the  benefit  were  omitted  ;  and 
that  ui)on  a  proper  view  of  the  whole  law  upon  the  subject,  the  jury 
would  have  been  warranted  by  the  evidence  in  acquitting,  or  at  least  in 
imposing  a  milder  punishment.  We  have  attentively  considered  the 
charsie  of  the  court  and  the  evidence ;  and  are  unable  to  concur  with 
counsel  in  the  view  they  have  taken  of  the  case. 

It  is  unnecessary  to  review  the  charge  of  the  court,  as  there  is  no  part 
of  it  applicable  to  this  defence,  which  is  complained  of  as  erroneous. 
Nor  is  it  necessary  to  review  the  evidence.  It  may,  however,  be 
observed  that  the  i)nncip:il  if  not  the  only  evidence  in  the  case  to 
support  the  plea  of  insanity  is  to  be  found  in  the  facts  and  immediate 
circumstances  attending  the  killing.  There 'is  no  other  evidence  in  the 
case  from  which  the  conclusion  may  be  drawn  that  the  accused  was 
bereft  of  reason,  than  that  which  is  to  be  found  in  the  fact  of  killing 
under  the  circumstances.  That  was  such  as  to  afford  conclusive  evi- 
dence of  malice ;  but  not  of  insanity.  In  a  certain  sense,  though  cer- 
tainly not  in  a  legal  sense,  every  unnecessary  or  unlawful  homicide  may 
be  said  to  be  an  insane  act.  But  to  derive  the  evidence  which  is  to  acquit 
on  the  plea  of  insanity,  from  that  source  alone,  if  notequally  as  irrational 
as  the  act  may  be  supposed  to  be,  would  at  least  be  of  extremely  danger- 
ous consequences.  For  the  more  causeless,  unnatural  and  indefensible 
the  homicide,  the  more  deserving  of  condign  punishment,  the  more 
fruitful  would  it  be  in  the  evidence  which  would  screen  from  punish- 


DRUNKENNESS    AS    A   DEFENCE. 


591 


United  States  v,  McGlue,  approved . 


killing 


ment.  It  is  manifest,  therefore,  that  the  absence  of  any  known  cause 
or  apparent  motive  for  the  commission  of  a  homicide,  can  never  be 
considered  evidence  to  support  the  plea  of  insanity.  Every  man  is 
presumed  to  be  sane  until  the  contrary  appears.  Insanity  is  an  oxc('[)tion 
to  the  general  rule ;  and  before  any  man  can  claim  the  benefit  of  tlu; 
exception,  he  must  prove  that  he  is  within  it.  It  has  been  laid  down  as 
the  law  upon  great  authority  and  consideration,  "  that  before  a  plea  of 
insanity  should  be  allowed,  undoubted  evidence  should  be  adduced,  that 
tlie  accused  was  of  diseased  mind,  and  that,  at  the  time  he  committed 
tlie  act,  he  w:.3  not  conscious  of  right  and  wrong.  This  opinion  related 
to  every  case  in  which  a  party  was  charged  with  an  illegal  act,  and  the 
plea  of  insanity  was  set  up.  Every  person  was  supposed  to  know  what 
law  was,  and  therefore  nothing  could  Justify  a  wrong  act  until  it  was 
dearly  proved  that  the  party  did  not  know  right  from  wrong.  If  that 
was  not  satisfactorily  proved,  the  accused  was  liable  to  punishment,"' 

It  is  also  to  be  remarked  that  it  appears  from  tlie  evidence  that  the 
accused  was  perfectly  conscious  of  what  he  was  about  to  do ;  and  he 
does  not  appear  to  have  even  fancied  that  he  was  acting  upon  provoca- 
tion, or  was  constrained  to  act  in  necessary  self-defence.  He  does  not 
appear  to  have  labored  under  any  delusion ;  but  to  have  had,  or  believed 
he  had,  and  it  would  seem  not  wholly  without  reason,  —  cause  of  ill-will 
towards  the  deceased  for  being  the  friend  of  his  enemy.  There  does 
not  seem,  therefore,  to  have  been  an  entire  absence  of  the  usual  [malice] 
which  incites  to  wicked,  malicious,  and  revengeful  acts.  But  without 
attempting  to  trace  the  act  to  the  secret  motive  wliifh  prompted  it,  or 
to  find  the  real  or  any  adequate  cause  fur  its  commission  (which  is 
unnecessary),  it  is  further  to  be  observed  upon  the  evidence  (and  it  is 
a  very  material  fact  where  the  plea  of  insanity  is  set  up,  alleged  to  have 
arisen  from  the  cause  to  which  it  is  ascribed  in  this  case),  that  the 
accused  shortly  before  starting  out  with  his  gun  upon  an  avowed  errand 
of  death,  indulged  in  such  potations  as  were  calculated  in  his  excited 
state  to  excite  to  those  acts  of  desperation,  which  are  not  unfrequently 
the  fruits  of  the  madness  and  frenzy  occasioned  by  a  sudden  fit  of 
drunkenness;  and  for  which,  when  voluntary  and  intentional,  the  law 
makes  no  allowance,  and  admits  no  extenuation  of  crime. 

The  judge  then  cites  with  approval  the  charge  of  the  court  in  United 
States  v.  McGlue,^  and  aflBrms  the  judgment. 


'  Wharton  Am.  Cr.  L.  13. 


2  1  Curt.  C.  C.  1. 


592 


DRUNKENNESS. 


Boswell'.H  Case. 


INTOXICATION  -  INSANITY      PRODUCED      THEREBY  —  BURDEN 
PROOF  — PREMEDITATION  AND  DELIBERATION, 

BosAVELL'is  Case. 

LliO  Gratt.  800.] 

In  the  Court  of  Appeals  of  Virginia,  March  Term,  1871 . 

Hon.  RiciiAiii)  C.  L.  Moxcukk,  President. 
"     Wii.i.i.vM  T.  Jayms, 
"     .losi.ni  CiiiiisTiAN, 
"     WAi.i.r.ij  K.  Staim.ks, 
"     FuANcif*  T.  Anukuson, 


OF 


Judges, 


Voluntary  Drunkenness  does  not  excuse  n  crime,  but  i)ermnnent  insanit}',  like  every 
other  kind  of  insanity,  excuses  an  net  which  otherwise  would  be  criminiil. 

2.  Burden  of  Proof. —The  defence  of  insanity  must  be  proved  to  the  satisfaction  of  the 

jury. 

3.  Intoxication  is  relevant  on  tlic  (|uc8tion  of  deliberation  and  premeditation. 

Eiiitou  to  the  Corporation  Court  of  Alexandria. 

James  Boswell  was  indicted  for  the  mui'der  of  Martha  French,  a  col- 
ored girl  seven  years  old.  He  was  convicted  of  murder  in  the  second 
degi'ce,  and  appealed. 

F.  L.  Smith  &  Neale,  for  the  prisoner. 

The  Attorne>/-General,  for  the  Commonwealth. 

MONCURE,  P. 

(After  passin<?  on  other  points.) 

The  facts  proved  on  the  trial,  and  on  which  the  said  instructions  were 
founded,  aie  in  substance  as  follows :  On  the  evening  of  the  4tli  of 
July,  1870,  Boswell  (the  accused),  being  drunk  and  staggering,  canio 
up  King  Street  (in  Alexandria)  to  West  Street,  and  upset  a  barrel  in 
front  of  a  store  on  King  Street,  as  he  went  by ;  tiiat  he  turned  down 
West  Street,  going  in  a  northerly  direction,  and  keeping  on  the  east 
side  of  the  latter  street ;  that,  as  he  walked  along,  he  exclaimed  in  vio- 
lent tones :  "  I  will  blow  his  damn  brains  out ;  will  kill  the  damn  littlr 
sons  of  bitches  ;  "  that  there  weie  at  the  time  two  little  negro  girls  pass- 
ing along  the  w-est  side  of  West  Street,  going  in  a  southerly  direction 
and  toward  King  Street,  a  number  of  ducks  in  the  street  about  ten  feet 
from  h'm,  and  still  further  on  a  cart,  both  the  ducks  and  the  cart  being 
between  the  prisoner  and  the  other  side  of  the  street,  though  it  did  not 
appear  that  the  cai-t  was  between  prisoner  and  the  little  girls ;  that, 


w 

ill 

e: 


ta 
ki 


of 


BOSWELI-  8    CAHK. 


593 


The  Facts  of  tliu  Cuso. 


EN       OF 


'1. 


y,  like  every 
iction  of  the 
jn. 

ich,  a  col- 
le  second 


AOns  wero 
he  4th  of 
ng,  came 
barrel  in 
lied  down 
the  east 
}d  in  vio- 
imn  Httlo 
[iris  pass- 
Idirection 
ten  feet 
lart  lieing 
It  did  not 
[is;  that, 


when  about  midway  of  the  square,  Boswell  picked  up  ii  brick,  and  cast- 
hig  it  across  the  street,  struck  one  of  tlie  little  girls  on  the  right  side 
of  the  head,  aliove  the  ear;  that  the  girl  fell  in  a  dying  condition,  and 
expired  at  ten  o'clock  in  the  night  of  that  day  ;  that  the  girl  so  struck 
was  named  Martha  French,  and  was  about  six  years  and  nine  months 
old;  that  after  throwing  the  brick,  Boswell  turned  and  walked  to  the 
corner  of  King  and  West  Streets,  took  off  his  coat  or  jacket,  put  it  on 
the  curbstone  and  sat  down  ;  while  there  he  was  told  by  a  witness  not 
to  go  away,  and  replied:  "If  I  have  done  anything  wrong,  you  can 
take  out  your  penknife  and  cut  my  throat.     I  give  myself  up.     If  I 
killed  the  child,  I  did  not  intend  to  do  it."     That  Boswell  iiad  1)cen 
•rrossly  intoxicated  for  a  week,  except  on  the  day  preceding  the  day  on 
which  the  alleged  crime  was  conmiitted,  and  had   no  previous  acquaint- 
iuice  with  the  deceased  ;  that  Boswell,  the  <lay  before  the  killing  of  the 
child,  when  asked  by  Thomas  Huntington  why  he  did  not  reform  and 
behave  himself,  said  he  wanted  to  die,  but  did  not  know  why ;  that  one 
day  in  the  latter  part  of  June,    1S70,  he  threw  himself  into  u  small 
stream  near  Alexandria,  called  Ilooff's  Run,  at  a  place  where  the  water  is 
about  eight  inches  deep,  and  Lucien  Ilooff  and  another  man  who  was 
l)assing  by,  found  him  h'ing  on  his  faci;  in  the  water,  out  of  which  thej' 
pulled  him,  and  laid  him  on  the  grass ;  if  he  had  been  left  in  the  water 
ho  would  have  drowned  ;  that  they  then  went  away,  and  Ilooff,  on  look- 
ing back,  saw  Boswell  again  throw  himself  into  the  water,  and  Ilooff 
and  a  man  named  Cunningham  pulled  him  out  aad  left  him  lying  on  the 
bank  in  an  insensible  condition  ;  he  would  have  been  drowned  in  two 
minutes,  had  he  not  been  rescued  ;  that  in  June,  1870,  some  two  weeks 
prior  to  the  killing  of  the  child,  Boswell  came  to  the  depot  of  the  Orange, 
Alexandria  and  Manassas  Railroad,  excessively  drunk,  and  staggering, 
and  throwing  himself  aboiii.  and  threw  himself  across  the  cow-catcher 
of  an  engine  in  motion,  which  dragged  him  some  distance  ;  that  the  en- 
gineer stopped,  and  two  men  took  him  off  the  cow-catcher,  and  threw 
liim  on  a  pile  of  manure  ;  that  about  an  hour  afterwards,  as  the  southern 
bound  train  was  leaving  the  depot,  Boswell  was  discovered  lying  on  one 
or  both  rails  of  the  track,  near  the  culvert,  a  short  distance  from  the 
depot;  that  the  engineer  stopped  the  tram,  and  the  same  two  men 
(hiigged  him  off  the  track,  and  threw  him  down  the  embankment ;  that 
each  month,  about  the  change  of  the  moon,  John  Boswell,  the  prison- 
er's younger  brother,  would  go  home,  refuse  to  work,  and  when  ap- 
proached with  directions  to  go  to  work,  would  be  listless,  indifferent, 
and  seem  not  to  understand. 


88 


594 


DRUNKENNESS. 


BOHWOH'S    CU8l!, 


After  the  ovidi'iu'C  was  hciird  by  the  jury,  the  nccusod,  I)}'  couiih*'!, 
movod  the  court  to  give  them  tlie  foIh)vving  instructions:  — 

1.  If  the  Jury  Hhull  believe,  from  tlio  evidence,  tiuit  tlic  prisoner  wns 
<h'uu!<  at  tile  time  of  tlie  killing  in  the  indictment  mentioned,  and  thai 
such  drunkenness  WHS  l)rought  on  by  sensual  or  social  gratification,  witii 
no  criminal  intent,  then  they  are  justified  in  finding  a  verdict  of  volini- 
tary  manslaughter,  provided  they  also  believe  from  the  evidence  tliat 
tliere  was  no  malice. 

2.  If  tlie  jury  believe,  from  the  evidence,  that  the  drunkenness  was 
the  result  of  long-continued  and  habitual  drinking,  without  any  piu'pose 
to  commit  crime,  and  that  the  drunkenness  produced  insanity,  whether 
temporary  or  permanent,  and  that  the  prisoner  was  in  such  condition, 
at  the  time  of  the  killing  aforesaid,  then  the  jury  may  find  n  verdict  of 
not  guilty  ;  and  further,  that  when  the  jury,  from  the  evidencte,  should 
entertain  a  reasonal)lc  doubt  on  the  question  of  insanity,  they  should 
find  in  favor  of  insanity ;  or  if  tliey  should  entertain,  from  the  evi- 
dence, reasonal)le  doubt  of  any  material  portion  of  the  charge,  the  pris- 
oner shall  have  the  benefit  of  that  doubt. 

And  the  court  refused  to  give  the  said  instructions,  and  gave  the  fol- 
lowing to  the  jury  :  — 

1.  That  every  man  is  presumed  to  be  sane,  and  to  possess  a  sufficient 
degree  of  reason  to  be  responsible  for  his  crimes,  until  the  contrary  is 
proved  to  their  satisfaction ;  that  if,  from  the  evidence,  the  jury  belie\o 
that  at  the  time  of  throwing  the  brick,  the  blow  from  which  caused  the 
death  of  the  deceased,  the  prisoner  was  laboring  under  such  a  defect 
of  reason  from  disease  of  tlie  mind  (remotely  produced  by  previous 
habits  of  gross  intemperance),  as  not  to  know  the  nature  and  possible 
consequences  of  his  act,  or  if  he  did  know,  then  that  he  did  not  know 
he  was  doing  what  was  wrong,  they  will  find  the  prisoner  not  guilty. 

2.  That  if  the  jury  shall  believe  beyond  reasonable  doubt,  from  tlio 
evidence,  that  the  prisoner  threw  the  brick  at  the  deceased  without  pro- 
vocation and  through  reckless  wickedness  of  heart,  but  that  at  the  time 
of  doing  so,  his  condition,  from  intoxication  or  other  causes,  was  such 
as  to  render  him  incai)able  of  doing  a  wilful,  deliberate,  and  premedi- 
tated act,  then  they  will  find  the  prisoner  guilty  of  murder  in  the  second 
<legree. 

3.  That  if  the  jury  believe,  from  the  evidence,  beyond  reasonable 
doubt,  that  the  prisoner,  though  intoxicated  at  the  time  of  throwing  itio 
brick  which  caused  the  death  of  the  deceased,  was  capable  of  knowing 
the  nature  and  consequence  of  his  act,  and  if  he  did  know,  then  that 
he  knew  he  was  doing  wrong,  and  that  so  knowing  he  threw  the  brick  tit 


DIUNKENXKHS    AS    A    DEFKNCK 


.595 


The  Kiiyllsli  CuHi'S. 


y  counsiM, 

isoiior  was 
,  and  that 
ation,  witli 
,  of  voliiii- 
lence  that 

.'nncas  was 
ly  puii)()st' 
}',  whether 
condition. 
1,  verdiet  of 
u!e,  should 
hey  shouM 
tn  the  evi- 
e,  the  pris- 

ive  tlie  I'ol- 

a  sufllciont 
contrary  is 
ury  believe 
caused  the 
L'h  a  def  eet 
y  previous 
d  possible 

not  know 

guilty. 
,  from  the 
itliout  pro- 
at  the  time 

was  such 
d  premedi- 
the  second 

reasonable 
rowing  llie 
f  knowing 
,  then  that 
he  brick  at 


llio  deccaHed  with  the  wilful,  deliberate,  and  premeditated  purpose  of 
Mlling  her,  then  they  will  find  the  prisoner  guilty  of  murder  in  the  llrst 
degree. 

4.  That  if  the  jury  believe  from  the  evidence  that  the  prisoi»er,  at 
the  time  of  throwing  the  l)rick  at  the  deceased,  was  in  such  a  condition 
as  to  render  him  incapable  of  a  wilful,  deliberate,  and  i)remeditatcd 
purpose,  and  that  he  did  not  so  throw  it  out  of  any  reckless  wicked- 
ness of  heart  or  purpose,  then  they  will  find  the  prisoner  guilty  of  vol- 
luUary  manslaughter. 

5.  If  the  jury  should  acquit  the  prisoner,  by  reason  of  their  believ- 
ing  him  insane,  that  they  will  so  state  in  their  verdict. 

The  law  in  regard  to  the  extent  to  which  intoxication  affects  respon- 
sibility for  crime,  seems  to  be  now  well  settled  ;  and  the  only  difficulty 
is  in  the  application  of  the  law  to  the  facts  of  a  particular  case. 

In  1  Hale's  P.  C  he  says:  "  The  dnncntia  (((fcctata;  namely,  drunk- 
ness ;  this  vice  doth  deprive  a  man  of  his  reason,  and  puts  many  men 
into  a  perfect  but  temporary  frenzy  ;  but  by  the  laws  of  England,  such 
a  person  shall  have  no  privilege  by  his  voluntarily  contracted  madness, 
but  shall  have  the  same  judgment  as  if  he  were  in  his  right  senses.'"-' 
Blackstone  says,  in  regard  to  the  excuse  of  drunkenness,  "  the  law  of 
England,  considering  how  easy  it  is  to  counterfeit  this  excuse,  and  how 
weak  an  excuse  it  is,  though  real,  will  not  suffer  any  man  thus  to  privi- 
lege one  crime  by  another."  In  Rex  v.  Thomus^^  1'akkk,  B.,  said  to  the 
jury:  "  I  must  also  tell  you,  that  if  a  man  makes  himself  vf)luntarily 
dvunk,  it  is  no  excnisc  for  any  crime  he  may  conunit  while  he  is  so  ;  he 
must  take  the  consequences  of  his  own  voluntary  act,  or  most  crimes 
would  go  inipunished.  And  in  John  Burrow's  (7n.s>', '  IIoi.koyd,  J. ,  told 
the  jury:  "  Drunkenness  is  not  insanity  nor  does  it  answer  to  what  is 
termed  an  unsound  mind,  unless  the  derangement  which  it  causes  becomes 
fixed  and  continued  by  the  drunkenness  being  habitual,  and  thereby  ren- 
dering the  party  incapable  of  distinguishing  between  right  and  wrong." 

The  American  cases  establish  the  same  doctrine  with  the  English  on 
this  subject. 5  In  Pirtle  v.  mate  the  court  in  explaining  the  decision  in 
Swan  y.  State^^  says:  "  This  reasoning  is  alone  applicable  to  cases  of 
murder  under  our  act  of  1829,'''  which  provides  that  all  murder  committed 
hy  means  of  poison,  lying  in  wait,  or  any  other  kind  of  wilful,  deliberate, 
malicious  and  premeditated  killing,  etc.,  shall  be  deemed  murder  in  the 


p.  32. 
>  See  also  1  Russell  on  Crimes,  7 ;  and  i 
4  Bl.  Com.  2U. 

3  7  C.  ami  P.  S17,  820. 


*  1  Lew.  C.  C.  238. 
^  <.)  Hinnph.  m:\. 

"  4  Humph.  13G 

•  ch.  23. 


590 


DRUNKENNESS. 


Bosweir.s  Case. 


first  decree,  and  all  otlier  kinds  of  murder  shall  be  deemed  murder  in 
the  second  degree.  Now  tK!  ^  is  drawing  a  distinction,  unknown  to  tlie 
common  law,  solely  with  a  view  to  tlie  punishment;  murder  in  the  first 
degree  being  punishable  with  death,  and  mur  ler  in  tiie  second  degree 
by  imprisomnent  in  the  penitentiary.  In  order  to  infiict  the  punish- 
ment of  death,  the  murder  must  have  been  connnitted  wilfully,  deliber- 
ately, maliciously  and  premeditatcdly.  This  state  of  mind  is  c  ..clii- 
sively  proven  when  the  death  has  been  inllicted  by  poison  or  by  13'ing  in 
wait  for  that  pin'i)ose  ;  but  if  neither  of  these  concomitants  attend  the 
killing,  then  the  state  of  mind  necessary  to  constitute  murder  in  the 
first  degree,  by  the  wilfulness,  the  deliberation,  the  maliciousness,  tlu' 
premeditation,  if  it  exist,  must  be  otherwise  proven."  "In  all  sncli 
cases,  whatever  fact  is  calculated  to  cast  light  u[)on  the  mental  sldtu.^  of 
the  offender  is  legitimate  proof  ;  and  among  others,  the  fact  that  he  Mas  !it 
the  time  drunk  ;  not  that  this  will  excuse  or  mitigate  the  offence  if  it  were 
done  vvilfuUy,  deliberately,  maliciously  and  premeditatcdly  (which  ii 
might  well  be,  though  the  perpetrator  was  drunk  at  the  t-'nie)  ;  but  to 
show  that  the  killing  did  not  spring  from  a  i)reme(litated  purpose." 
*' This  distinction  can  never  exist  except  between  murder  in  the  first 
degree  and  murder  in  the  second  degree  under  our  statute."  "  As  br- 
tweeu  the  two  offences  of  murder  in  the  second  degree  and  manslaugh- 
ter, the  drunkenness  of  the  offender  can  form  no  legitimate  matter  of 
inquiry  ;  the  killing  being  voluntary,  the  offence  is  necessarily  murder 
in  the  second  degree,  unless  the  provocation,  were  of  such  a  charact'r 
as  would  at  common  law  constitute  it  manslaughter,  and  for  which  lus- 
ter offence,  a  drunken  man  is  e(iually  responsible  as  a  sober  one." 
I  have  quoted  thus  largely  from  this  case,  because  it  lays  down  the  law 
very  correctly,  and  is  specially  api)licable  in  this  State,  in  which  there  is 
a  hi'y  very  much,  if  not  precisely  like  that  of  Tennessee,  distinguishini; 
between  murder  in  the  first  and  second  degrees.  T!ie  most  material 
cases,  English  and  American,  bearin;  upon  this  whole  subject,  ar ' 
collected  in  a  note  to  the  case' of  Uniti'd  States  v.  DreivA 

With  this  genci-al  view  of  the  law  on  the  subject,  I  will  now  take  some 
notice  of  the  Instructions  in  detail ;  and  first  of  those  asked  for  by  tho 
accused.  The  fir  it  instruction  asked  for,  was  properly  refused.  Jt 
states  a  case  of  murder,  and  asks  the  court  to  instruct  the  jury  that  it 
was  a  case  01  voluntary  manslaughter.  The  words  at  the  conclusion, 
"  provided  they  also  believe  from  the  evidence  that  there  was  no  malicr." 
do  not  alter  the  case.  The  law  implies  malice  from  the  facts  stated  in 
the  former  part  of  the  instruction.     The  word  "  jualice  "  in  thcproviso, 

>  6  Masou  '2S;  in  1  l.c;nl.  (rim.  (a.  Il;i-lil.    Sei-  also  1  Wharton's  Am.  C.  L.  sects.  .".2-44. 


URUN'KENNESS    NO   EXCUSE    FOIl    CRIME 


597 


This  Proposition  Maintained. 


nurder  in 
iwu  to  llio 
u  the  first 
id  degrei' 
e  pnnish- 
:,  dcliboi'" 
is  c  ..clu- 

attend  tlic 
•der  in  tlic 
isncss,  the 

I  all  such 

II  stdtus  of 
t  lie  was  nl 
e  if  it  wen' 

(wliicb  ii 
e)  ;  but  U) 
purpose." 
u  the  lu'sl 
I    "Asb^'- 
lanshiugli- 
niattcr  of 
y  murder 
chanictn' 
which  la:- 
ber  one." 
ivu  the  law 
ch  there  is 
nguishin;; 
;  material 
bject,  ar^' 

take  sonic 
for  by  the 
fused.  It 
ury  that  it 
onclusion, 
0  malice," 
stated  in 
ha  proviso, 

^ects.  :'.2-U. 


can  mean  only  express  malice,  which  is  necessary  to  constitute  murder ; 
malice  express  or  implied,  being  sullicient,  or  if  it  mean  malice  gener- 
ally, then  the  proviHO  is  in  conflict  witli  the  body  of  the  instruction, 
which  is  therefore  faulty,  and  it  was  proper  on  tliat  ground,  if  no  other. 
Lo  refuse  to  give  it. 

The  second  instruction  asked  for  was  also  properly  refused.     Drunk- 
enness is  no  excuse  for  crime,  although  such  drunkenness  may  be,  "  the 
result  of  long  continued  and  habitual  drinking  without  any  purpose  to 
commit  crime,"  and  may  have  produced  temporary  insanity,  during  the 
existence  of  which  the  criminal  act  is  committed.     In  other  wcn-ds,  a 
[)erson,  whether  he  be  an  habitual  drinker  or  not,  cannot  voluntarily 
make  himself  so  drunk  as  to  become,  on  that  account,  irresponsible  for 
his  conduct  during  such  drunkenness.     He  may  be  perfectly  unconsiou.s 
of  what  he  does,  and  yet  he  is  responsible.     He  may  be  incapable  of 
express  malice,  but  the   law  implies  m.aiice  in  such  a  case  from  the 
nature  of  the  instrument  used,  the   absence    jf  provocation,  and  other 
circumstances  under  wliich  the  act  is  done.     Public  policy  and  public 
safety  imperatively  reciuire  tliat  such  .'■JiouLl  be  the  law.     If  permanent 
insanity  be  produced  by  habitual   drunkenness,  then  like  any  olhci- 
'iisanity,  it  excuses  an  act  which  would  be  otherwise  criminal.     Tiie  law 
looks  at  proximate,  and  not  remote  causes  in  this  matter.     Finding  the 
'Accused  to  be  perm;     'Utly  insane,  it  in(|uires  not  into  the  cause  of  his 
insanity.     In  the  leading    case  of   United  States  v.  Drew,   before  re- 
ferred to,  which  was  a  case  of  murder,  Mr.  Justice  Story  held  the  ac- 
cused not  responsible,  the  act  having  been  done  uiMler  an  insane  delusion, 
produced   by    disease   brought  on   !)»•  intemperance,  called    delirium 
tremens.     "  In  general,"  said  tlie  ju;!^"-.-  ''  insanity  is  an  excuse  for  the 
commission  of  every  crime,  because  the  party  has  not  the  possession  of 
that  reason  which  includes  responsibility.     An  exception  is,  when  the 
crime  is  committed  by  a  party  while  in  a  fit  of  intoxication,  the  law  not 
permitting  a  man  to  avail  himself  of  the  excuse  of  his  own  gross  vice 
tuid  misconduct  to  shelter  himself  from  the  legal  consequences  of  such 
e:irae.     But  the  crime  must  take  place  and  be  the  immediate  result  of  the 
nt  of  intoxication,  and  while  it  lasts  ;  and  not,  as  in  tliis  case,  a  remote 
consequence,  superinduced  by  the  ai'tecedent  exhaustion  of  the  party 
arising  from  gross  and   habitual  druniieuness.     Had  the  crime  been 
committed  while  Drew  was  in  a  fit  of  intoxication,  he  would  have  been 
liable  to  be  convicted  of  murder.     As  he  was  not  then  intoxicated,  but 
merely  insane  from  an  abstinence  from  liquor,  he  cannot  be  pronounced 
<,aiilty  of  the  offence.     The  law  looks  to  (he  innnediate  not  the  remote 
cause  ;  to  the  actual  state  of  tlu'  party,  and  not  to  the  causes  which  re- 


598 


UKUNKKNNKSS. 


IJoswell's  Case 


motely  produced  it."  That  is  tlie  first  case  in  wluoh  it  has  liecn  held 
tliat  an  act  otherwise  ciiminal,  done  by  a  person  lal)oring  under  tlic 
disease  of  delirium  tremens,  might  be  excusable  on  tlie  ground  of  in- 
sanity. Without  meaning  to  question  tlie  authority  of  that  ease,  and 
conceding  it  to  be  good  law,  as  it  may  l)e,  still  it  does  not  apply  to  this 
case  ;  for  it  expressly  admits  that  "had  the  crime  been  committed  while 
Drew  was  in  a  fit  of  intoxication  he  would  have  been  liable  to  be  con- 
victed of  murder. "  In  this  case  it  is  riot  pretended  that  the  accused  had 
delirium  tremens,  or  anything  like  it,  wiien  he  committed  tlie  ad  and 
the  instruction  askt'd  for  expres.dy  admits  that  tlie  act  was  d  >ne  \  the 
accused  while  he  was  drunk,  fj-'o  that  according  to  the  law,  as  it  was 
admitted  to  be  in  the  case  of  United  States  v.  Drew,  such  drunken- 
ness is  no  excuse.  This  is  a  sufficient  reason  for  refusing  to  give  the 
second  instruction  fxsked  for.  The  latter  part  of  that  instruction  em- 
braces another  proposition,  which  will  be  noticed  presently. 

As  to  the  instructions  which  were  given  by  the  court,  the  first,  I  think, 
is  unexceptionable.  To  the  greater  part,  and  all  but  the  first  t'<>  or 
chree  lines,  no  objection  has  been,  or  properly  can  be  taken.  To  flu 
first  part  of  it,  which  is  in  these  words :  "  That  every  man  is  presumed 
to  be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be  responsi- 
ble for  his  crimes,  until  the  contrary  is  proved  to  their  satisfaction," 
the  accused  objects.  Of  course  he  does  not  and  cannot  object  to 
so  much  even  of  that  part,  as  says  "  that  every  man  is  presumed  to  be 
sane,  and  to  possess  a  sutficient  degree  of  reason  to  be  responsible  for 
his  crimes."  He  only  objects  to  the  concluding  words  of  the  sentence, 
'•  until  the  contrary  is  proved  to  their  satisfaction."  Indeed,  the  ob- 
jection only  goes  to  the  three  concluding  woi'ds  "  to  their  satisfaction  ;  " 
whicli  he  seems  to  tliiiik  is  an  excessive  measure  of  the  proof  required 
by  law  to  re[»el  the  prt'sumption  of  sanity.  He  seems  to  think  (and 
that  is  the  thought  which  is  embodied  in  the  latter  part  of  the  second 
i'.istruction  asked  for),  that  all  the  proof  reciuired  b}'  law,  to  repel  the 
said  presum[)ti()n,  was  only  ho  much  as  would  raise  a  rational  doubt  of 
his  sanity  at  tlie  time  of  committing  the  act  charged  against  iiim.  Now 
I  tliink  this  is  not  law  ;  and  tliat  the  law  is  correctly  expounded  in  the  first 
instruction  given  by  the  court.  There  are,  certainly,  several  American 
cases  which  seem  to  sustain  the  view  of  the  accused  and  are  referred  to 
by  his  counsel.  But  I  think  the  decided  weight  of  authorit}',  English 
and  American,  is  the  other  way,  as  the  cases  referred  to  by  the  attorney- 
general  will  show.     In  1  Wharton's  Am.  Cr.  L.,'  the  writer  says:  "At 


'  sect.  711. 


BURDEN   OF   rUOOF, 


59!) 


The  Authorities  Collected. 


been  hekl 
ndcr  tlic 
ml  of  in- 
case, and 
ly  to  this 
ted  wiiilc 

0  be  con- 
used  had 
:  act ,  and 
le  y  the 
as  it  was 
drunkon- 

givc  th( 
3tion  em- 

:,  I  think, 

St    t'.'.J    (>!• 

To  t;, 

)resunicd 
rosi)onsi- 
faction," 
)bject  to 
cd  to  bo 
isibie  fof 
sentence, 
,  the  ob- 
iction  ;  ' ' 
required 
ink (and 
e  second 
'cpel  the 
doubt  of 
1.     Now 

1  the  first 
Lnierican 
ferrcd  tc 

Enghsh 
ittorney- 
ys:   "At 


common  law  the  preponderance  of  authority  is,  that  if  the  defence  be 
insanity,  it  must  be  substantially  proved  as  an  independent  fact ;  " 
and  for  this  he  cites,  Hex  v.  Stohe.i,'^  Rex  v.  Taylor,-  State  v.  lirhn/ea.'-^ 
State  V.  Stark.'*  State  v.  JIuting,-'  State  v.  Starli)ig,'^''  State  y.  Spe)icer,~ 
Bonfauti  v.  State,^  State  v.  Brandon,'^  People  v.  3Ii/ers.'^'^  "  On  the 
other  hand,"  he  proceeds,  "it  has  been  ruled  in  Massachusetts,  in 
1H")G,  that  the  defence)  is  made  out  if  the  prisoner  satisfied  the 
Jury  by  a  preponderance  of  evidence,  that  he  is  insane."  And 
furthis  he  cites:  Commonivealth  v.  Edcb/J^  Commomvealth  v.  Eogers.^- 
"And  in  other  courts  it  has  been  held,  that  in  this,  as  in  all 
other  constituents  of  guilt,  the  burthen  is  on  the  prosecution." 
And  for  this  he  cites.  People  v.  McCann.^'-*  Ogh^tree  v.  Statp,^"^  United 
States  V.  3fc  Glue, ^■'  Slide  v.  Barflett,^'>  Po'k  v.  Statc.^'^  IIopps  v. 
People. '^^  See  also  Clinse  v.  People, ^'^  \n  which  Ilojipn  v.  People,  is  ex- 
plained. Now,  here  we  have  a  reference  to  nearly  all  the  authorities  on 
eilher  side  bi'aring  upon  this  question,  and  I  think  the  fair  results  of 
them  is  to  show  that  insanity,  when  it  is  relied  on  as  a  defence  to  a 
charge  of  crime,  must  be  proved  to  the  satisfaction  of  the  juiy,  to  en- 
title the  accused  to  be  acquitted  on  that  ground ;  though  such  proof 
may  be  furnished  by  evidence  introduced  by  the  Commonwealth  to  sus- 
tain the  charge,  as  well  as  by  evidence  introduced  to  sustain  the  defence. 
This  result  consists  with  r.'ason  and  principle.  The  law  presumes 
every  person  sane  till  the  contrary  is  proved.  The  Commonwealth  hav- 
ing proved  the  corpu.-  delicti,  and  that  the  act  was  done  by  the  accused, 
has  made  out  her  caso.  If  he  relies  on  the  defence  of  insanity,  he  must 
prove  it  to  the  satisfaction  of  the  jury.  If,  iq)on  the  whole  evidence, 
they  believed  he  was  insane  wl-  mi  he  committed  the  act,  they  will  acquit 
him  on  that  ground.  But  not  upon  ary  fanciful  gjound,  that  though 
I  hey  believe  he  was  then  sane,  yet  as  there  may  be  a  rational  doubt  of 
such  sanity,  he  is  therefore  entitled  to  an  acquittal.  Insanity  is  easily 
fi'igned,  and  hard  to  be  disproved,  and  public  safety  requires  that  it 
sliould  not  be  established  by  less  than  satisfactory  evidence.  Some  of 
the  cases  have  gone  so  far  us  Lu  place  the  presumption  of  sanity  on  the 


'  3  C.  *,  K.  1S5. 

=  4Cox.('.  C.  155. 

3  5  Ala.  ';U. 

<  1  Sti-obh.  479. 

'  21  Mo.  4(U. 

«  0. Jones  (N.  C.),471. 

'  21  N.  J.  (L.)  196. 

"  2  Minn.  12;i. 

»  8  Jones  (N.  C),  463. 

'"  20  Cal.  518. 


"'  7  Gray  .583. 
'-  7  Mete.  5«). 
'  ■  10  N.  V.  .58. 
»  28  Ala.  69a. 
'•'  1  Curt.  C.  C. 
'»  43  N.  II.  224. 
"  19  Ind.   170. 
"  ?.\  111.  385. 
"  40  111.  358. 


600 


DRUNKENNESS. 


Hoswell's  Case. 


k-M's-.'- ■■■"  '■ 


same  ground  with  the  presumption  of  innocence,  and  to  require  the 
same  degree  of  evidence  to  repel  it.  But  I  do  not  think  it  necessary 
or  proper  to  go  to  that  extent.  • 

As  to  the  second  instruction  given  by  the  court,  it  seems  to  be  free 
from  any  just  ground  of  objection,  except  tliat  I  think  tlie  words 
"  other  causes,"  ought  to  have  been  omitted.  If  a  person  be  incapable 
from  othir  causes  than  intoxication,  of  doing  a  wilful,  deliberate,  and 
premeditated  act,  he  would  seem  to  be  incapable  of  murder  in  the 
second  degree,  or  any  other  crime.  To  be  sure  the  words  "  through 
reckless  wickedness  of  heart,"  in  the  former  jiart  of  the  instruction, 
imply  malice  ;  but  it  is  dilHcult  to  see  how  a  i)erson  guilty  of  doing  an 
act,  through  reckless  wicki'dness  of  heart,  could,  at  tlie  same  time,  be 
i:i  such  condition  from  other  causes  than  intoxication,  as  to  render  him 
incapable  of  doing  a  wilful  and  deliberate  and  premeditated  act.  There 
is,  therefore,  an  apparent  conflict  between  the  different  parts  of  the 
instruction,  and  at  all  events  it  was  calculated  to  mislead  the  jury. 

The  third  instruction  given  by  the  court  is  unobjectionable  and  un- 
objected to. 

The  fourth  instruction  given  by  the  court,  is  objectionable  on  the 
ground  taken  by  the  counsel  of  the  accused,  that  it  assumes  the  fact 
that  the  accused  threw  the  brick  at  the  deceased,  which  ought  to  have 
been  referred  to  the  jury.  The  instruction  ought  to  have  stated  tlie 
fact  hj'pothetically,  thus :  "  That  if  the  jury  believed  from  the  evidence 
that  the  prisoner  threw  a  brick  at  the  deceased,  which  caused  her  death, 
and  that  at  the  time  of  so  doing  he  was  in  such  a  condition  of  drunk- 
enness, as  to  render  him  incapable  of  a  willful,  deliberate  and  premedi- 
tated purpose,  and  that  he  did  not  so  throw  it,  out  of  any  reckless 
wickedness  of  heart  or  purpose,  then  they  will  find  the  prisoner  guilty 
of  manslaughter.  " 

Wliether  the  accused  threw  the  brick  at  the  deceased  or  not,  was  a 
fair  question  of  controversy  before  the  jury  upon  the  evidence.  He 
might  have  thrown  it  at  her,  or  he  might  have  thrown  it  at  the  ducks  in 
the  street,  or  he  might  have  thrown  it  at  random.  In  either  case  he  did 
an  unlawful  act,  likely  to  do  mischief,  considering  the  time  and  place 
and  circur.iStances  under  which  it  was  done,  and  he  was,  therefore,  re- 
sponsible for  the  consequences  of  ihe  act  as  a  crime.  But  the  degree 
of  such  crime  depended  upon  the  intention  with  which  the  brick  was 


1  See  also  Roscoe's  Cr.  Kv.,  library  addi- 
tion, vp. '.tOS-iHht;  (>i>iiii(ins  of  the  jiidjres  <iii 
questions    propounded    by    the    House    of 


Lords,    47    Kng.  C.  L.    R.,    129;    State   v. 
Willis.  6:i  \.  ('.    2fi;  Graham  v.  Comiuou 
wealth,  16  B.  Men.  587. 


ISOSWELL  S    CASE. 


601 


United  States  v.  Drew. 


to  require  the 
i  it  necessary 

ems  to  be  free 
nk  the  words 
II  be  incapable 
eliherate,  and 
nuider  in  the 
rds  "  throuffh 
e  instruction, 
y  of  doing  an 
ame  time,  be 
to  render  him 
d  act.     There 
parts  of  tlie 
he  jury, 
lable  and  un- 

3nable  on  the 
umes  the  fact 
light  to  have 
.'e  stated  the 
I  the  evidence 
ed  lier  death, 
)n  of  drunk- 
and  premedi- 
any  reckless 
isoner  guilty 

•1"  not,  was  a 
idenco.  He 
the  ducks  in 
r  case  he  did 
ne  and  place 
herefore,  rc- 
it  the  degree 
e  brick  was 


129;    state   v. 
m  V.  Comniou- 


thrown.     Such  intention  was  therefore  a  material  fact  to  be  determined 
by  the  jury,  and  the  court  invaded  their  province  in  assuming  it. 

The  result  of  ray  opinion  is  that  there  is  no  other  error  in  the  judg- 
ment than  those  in  the  second  and  fourth  instructions  given  by  the 
court  as  aforesaid  ;  but  for  those  errors  the  said  judgment  ought  to  bo 
reversed,  the  verdict  set  aside,  and  the  case  remanded  for  a  new  trial  to 
be  had  therein. 

JoYNEs,  J.,  concurred  in  the  opinion  of  Moncure,  P.,  except  as  to 
what  is  said  therein  upon  the  burden  of  proof  on  tlie  question  of  insan- 
ity. He  was  of  the  oi)inion  that  the  burden  was  on  the  CommonweaUh 
to  prove  the  sanity  of  the  prisoner. 

The  other  judges  concurred  in  the  opinion  of  Moncure,  P. 

Judgment  reversed. 


DRUNia:NNESS— INSANITY   RESULTING  THEREFROM. 

United  States  v.  Dkew. 

[5  Mason,  28.] 

In  the  United  States  Circuit  Court  for  the  District  of  Massachusetts. 

May,  1828. 

Hon.  JosKPir  Story,  >  r  i 

'  )Jud(ji's. 

"     Jonx  Davis.       > 

Where  a  person  is  insane  at  the  time  he  commits  a  ninicler,  he  is  not.  punishable  as  a 
nmrdercr,  allliougli  such  intiunity  ho  remotely  occasidiicij  Ity  undue  indulgence  in 
6i)iritu()us  liquors.  But  it  is  otherwise,  if  lie  be  at  tlie  time  intoxicated,  and  his  insanity 
be  directly  caused  by  the  immediate  inlluence  of  such  licjuors. 

Indictment  for  tlie  murder  of  Charles  L.  Clark  on  the  high  season 
board  of  the  American  ship  John  Jay,  of  which  Drew  was  master,  and 
Clark  was  second  mate.     Plea,  general  issue. 

At  the  trial  the  principal  facts  were  not  contested.  But  the  defence 
set  up  was  the  insanity  of  the  prisoner  at  the  time  of  committing  the 
homicide.  It  appeared  that  for  a  considerable  time  before  the  fatal 
net.  Drew  had  been  in  the  habit  of  indulging  himself  in  very  gross  and 
almost  continual  drunkenness  ;  that  about  five  days  before  it  took  place, 
lie  ordered  all  the  liquor  on  board  to  l)e  thrown  overboard,  which  was 
accordingly  done.     He  soon  afterwards  began  to  betray  great  restless- 


602  • 


DRUNKENNESS. 


United  States  v.  Drew. 


ness,  uneasiness,  fretfulness,  and  Irritability,  expressed  his  fears  that 
tlie  crew  intended  to  murder  him  ;  and  complained  of  persons,  who  wero 
unseen,  talking  to  him,  and  urging  him  to  kill  Clark ;  and  his  dread  of 
so  doing,  He  could  not  sleep,  but  was  in  almost  constant  motion  dur- 
ing the  day  and  night.  The  night  before  the  act,  he  was  more  restless 
than  usual,  seemed  to  be  in  great  fear,  and  said  that  whenever  he  laid 
down  there  were  persons  threatening  to  kill  him,  if  he  did  not  kill  the 
mate,  etc.  In  short,  h'>  -xhibited  all  tiie  marked  s3'mptonis  of  the  dis- 
ease brought  on  by  int*.  niierance,  called  delirium  tremens. 

Upon  the  closing  of  the  evidence,  the  court  asked  Blake,  the  district 
attorney,  if  he  expected  to  change  the  posture  of  the  case. 

He  admitted  that  unless  upon  the  facts  the  court  were  of  opinion  that 
this  insanity,  brought  on  by  the  antecedent  drunkcnnes,s,  constituted  no 
defence  for  the  act,  he  could  not  expect  success  in  the  prosecution. 

After  some  consultation  the  opinion  of  the  court  was  delivered  as 
follows :  — 

Stouy,  J.  — We  are  of  opinion,  that  the  indictment  upon  these  ad- 
mitted facts  cannot  be  maintained.  The  ])risoner  was  unquestionably 
insane  at  the  time  of  committing  the  offence.  And  the  question  made  at 
the  bar  is,  whether  insanity,  whose  remote  cause  is  habitual  drunken- 
ness, is  or  is  not  an  excuse  in  a  court  of  law  for  a  homicide  committed 
by  the  party,  while  so  insane,  but  not  at  the  time  intoxicated  or  under 
the  influence  of  liquor.  We  are  clearly  of  opinion  that  insanity  is  a 
competent  excuse  in  such  a  case.  In  general,  insanity  is  an  excuse  for 
the  commission  of  every  ciime,  because  the  party  has  not  the  possession 
of  that  reason  wiiicli  includes  responsibility.  An  extieption  is,  when 
the  crime  is  committed  by  a  party  while  in  a  fit  of  intoxication,  the  law 
not  permitting  a  man  to  avail  himself  of  the  excuse  of  his  own  gross 
vice  and  misconduct,  to  shelter  himself  from  the  legal  consequences  of 
such  crime.  Rut  the  crime  must  take  pla -c  and  bi'  the  immediate  re- 
sult of  the  fit  of  intoxication,  and  iclule  i  lasts;  and  not,  as  in  this 
case,  a  remote  consequence,  superinduced  by  the  antecedent  exhaustion 
of  the  party  arising  from  gross  and  habitual  drunkenness.  However 
criminal,  iu  ±  moral  point  of  view,  such  an  indulgence  is,  and  however 
justly  a  party  may  be  responsible  for  his  acts  arising  from  it  to  Al- 
mighty God,  human  tribunals  are  generally  restricted  from  punishing 
them,  since  thev  are  not  the  acts  of  a  reasonable  being.  Had  the  crime 
been  committed  while  Drew  was  in  a  fit  of  intoxication,  he  would  have 
been  iaible  to  have  been  convicted  of  murder.  As  he  was  not  then  in- 
toxicated, but  merely  insane  from  an  abstinence  from  liquor,  he  cannot 
be  pronounced  guilty  of  the  offence.     The  law  looks  to  the  immediate, 


an 
th( 
rei 
th( 
jiri 
su 


UNITKU   STATK8   V.    DUEW. 


603 


Stute  V.  Johnson. 


Pears  that 
who  wen' 
dread  of 
tion  dur- 
3  restless 
er  he  laid 
t  kill  the 
f  the  dis- 

e  district 

nion  that 
ituted  uo 
ition. 
ivered  as 

licse  ad- 
itiuiiably 
made  at 
Irunken- 
mmitted 
)r  under 
lity  is  a 
cuse  for 
ssession 
is,  wljon 
the  law 
ni  gross 
Mices  of 
'■kite  re- 
in this 
laustion 
[owever 
lowever 
to  Al- 
nishing 
e  crime 
d  have 
hen  in- 
eannot 
ediate, 


and  not  to  the  remote  cause  ;  to  the  actual  state  of  the  party,  and  not  to 
the  causes  which  remotely  produced  it.  Many  species  of  insanity  arise 
remotely  from  what,  in  a  moral  view,  is  a  criminal  neglect  or  fault  of 
the  party,  as  from  religious  melancholy,  luidue  exposure,  extravagant 
pride,  ambition,  etc.  Yet  such  insanity  has  always  been  deemed  a 
sufRcieut  excuse  for  any  crime  done  under  its  influence. 
B.  Davis  and  Basset  for  the  prisoner. 

Verdict,  not  guilty. 


INTOXICATION  —  RtURDER     IN     FIRST     DEGREE  —  DELIBERATION — 
TEST  OF  INSANITY  — EVIDENCE. 

Statk  V.  floiIXSOX. 

[40  Conn,  I'M',.] 
In  the  Supreme  Court  of  Errors  of  Connecticut,  April  Term,  1873, 

Hon.  Thomas  Beldkn  BrTUj:,  Chiif  Justice. 
Okigkn  S.  Skvmoi  h,     "^ 


Justi 


ces . 


"    John  D.  P.uih, 

*'       El.ISHA  CaUI'KNTEI!,  j 

"    Lakavkttk  S.Fostki!,  3 


1.  Murder  In  First  Degree  —Deliberation  —  Intoxication.  —  On  an  indictment  under  a 

statute  providing  tliat  all  murder  "  perpL'tratt'd  Ijy  any  kinii  of  wilful,  deliberate,  and 
premeditated  killing  "  is  murder  in  the  lirst  degree,  a  stale  of  intoxication  or  any  other 
fact  tending  to  prove  that  the  prisoner  was  Incapable  of  deliberation  may  be  shown. 

2.  Test  of  Insanity.  — To  be  criminally  responsil)le  a  man  must  have  reason  enough  to  ho. 

able  to  judge  of  the  character  and  consequences  of  the  act  committed,  and  nuit^t  not 
be  overcome  by  an  irresistible  inii)ulse  arising  from  disease. 

3.  Whei'e  insanity  is  shown  to  exist  a  short  time  betore  the  act,  the  evidence  .-liould 

show  sanity  at  the  time  or  the  jury  should  acquit. 

Indictment  for  murder  in  the  first  degree ;  brought  to  the  Superior 
Court  in  New  Haven  County  and  tried,  on  the  plea  of  not  guilty,  before 
Foster  and  GitANGi;i:,  J  J. 

The  murder  chai'g(!d  was  that  of  a  woman  named  Johanna  Iless,  at 
Meridan,  in  New  Haven  County,  on  the  eighth  day  of  July,  1872.  By 
statute,^  '*  all  murder  which  shall  be  perpetrated  by  means  of  poison,  or 
by  lying  in  wait,  or  by  any  other  kind  of  wilful,  deliberate,  and  pre- 

I  Gen.  Stats.,  tit.  12,  sect.  6. 


G04 


DRUNKENNESS. 


State  r.  Johnson. 


incclitated  killing,  or  Avhieh  shiill  be  committed  in  perpetrating,  or 
attempting  to  perpetrate,  any  arson,  rape,  robbery  or  burglary,  shall 
l)e  deemed  murder  in  the  first  degree;  and  the  jury  before  whom  any 
person  indicted  for  murder  shall  be  tried,  shall,  if  they  find  such  person 
guilty,  ascertain  in  iheir  verdict  whether  it  be  murder  in  the  first  degree 
or  second  degree."  Another  section  of  the  statute  makes  murder  in 
the  first  degree  punishable  by  death,  and  in  the  second  degre(>  by  impris- 
onment in  the  State  prison  for  life. 

Ui)()n  the  trial  the  attorney  for  the  State  having  offcri'd  evidence 
to  prove,  and  claiming  to  have  proved,  that  the  murder  was  wilful, 
deliberate  and  pnmeditated,  and  therefore  murder  in  the  first  degree, 
the  counsel  for  the  prisoner  offered  evidence  to  prove  that  he  was  in- 
sane at  the  time  he  committed  the  act.  And  that  he  had  been  insane 
on  previous  occasions,  and  had  a  disease  called  dipsomania.  He  also 
offered  evidence  to  prove,  and  claimed  to  have  pi-oved,  that  the  prisoner 
was  intoxicated  at  the  time,  and  was  also  suffering  from  a  severe  injury 
which  had  affected  his  nervous  organization,  and  which  rendered  him 
more  easily  affected  by  intoxicating  licpior. 

After  the  evidence  was  in,  the  counsel  for  the  prisoner  filed  a  written 
request  that  the  court  would  give  the  jury  the  following  instructions  in 
writing:  1st.  That  if  tho  evidence  shows  that  intoxicating  liquor  on 
previous  occasions  had  rendered  the  prisoner  insane,  or  had  caused  an 
habitual  madness  or  fixed  frenzy,  and  that  if  at  the  time  he  was 
laboring  under  a  temporary  insanity  caused  by  excessive  diinking,  in 
combination  with  an  infirm  state  of  mind,  or  a  previous  wound  or 
illness,  which  rendered  ardent  spirits  fatal  to  his  intellect  to  a  degree 
unusual  in  other  men,  the  jury  should  wholly  acquit  the  prisoner. 
2d.  That  if  upon  the  whole  evidence  the  jury  believe  that  the  prisoner, 
at  the  time  of  committing  the  act,  was  under  the  influence  of  a  dis- 
eased mind,  and  was  unconscious  that  he  was  committing  a  crime,  the 
jury  should  acquit  him.  3d.  That  if  the  prisoner  was  laboring  under 
some  controlling  disease,  which  was  an  active  power  within  him  which 
he  could  not  resist,  then  he  was  not  responsible.  4th.  That  if  the 
jury  believe,  that  from  any  cause,  either  from  personrl  injuries  or  the 
use  of  ardent  spirits,  the  prisoner's  mind  was  impaired,  and  at  the 
time  of  committing  the  act  was,  by  reason  of  such  cause,  unconscious 
that  he  was  committing  a  crime,  he  is  not  guilty  of  any  offence  what- 
ever. 5th.  That  if  the  jury  find  that  the  prisoner  was  greatly  excited 
or  affected  by  the  use  of  liquor,  and  which  produced  a  state  of  mind 
unfavorable  to  deliberation  and  premeditation,  although  not  such  as  to 
render  the  party  entirely  incapable  of  forming  a  deliberate  purpose,  he 


DUUNKENNESS    AS    A    DEFENCE 


605 


Instructions. 


rating,  or 
laiy,  shall 
ivliom  any 
eh  person 
"st  degree 
nimler  in 
)y  impris- 

cvidcncc 
18  wilful, 
t  degree, 
e  was  in- 
2n  insane 

He  also 

prisoner 
re  injury 

eied  him 

I  written 
C'tions  in 
quor  on 
lused  an 
he  was 
long,  in 
3und  or 
I  dcgiee 
risoncr. 
risoner, 
f  a  dis- 
me,  the 
f  under 

1  which 
if  the 
or  the 
at  the 

nscious 

2  wliat- 
Bxcitcd 
f  mind 
h  as  to 
ose,  he 


cannot  be  convicted  of  any  higher  crime  than  that  of  manslaughter. 
6th.  That  the  law  docs  not  require  that  the  insanity  which  absolves 
from  crime  should  exist  for  any  definite  period  or  for  any  particular 
length  of  time  ;  but  only  that  it  should  exist  at  the  moment  when  the 
act  charged  was  committed.  7th.  That  the  proof  of  prior  insanity,  at 
any  time,  imposes  upon  the  State  the  burden  of  proving  the  crime  to 
have  been  perpetrated  during  a  lucid  interval ;  and  that  the  proof  of 
prior  insanity  defeats  the  legal  presumption  of  sanity,  and  creates  a 
legal  presumption  of  continued  lunacy,  which,  like  the  former,  must 
be  overthrown  by  proof.  8th.  That  if  the  juiy  have  any  doubt  as 
to  the  case,  on  the  question  of  the  sanity  of  tlic  prisoner  at  tlie  time 
of  the  commission  of  the  act,  he  should  be  acquitted.  9tli.  That 
if  intoxicated  at  the  time  of  committing  the  act,  he  is  guilty  of  no 
higher  crime  than  that  of  manslaughter.  10th.  That  in  order  to  con- 
vict of  murder  in  the  first  degree,  the  jury  must  find  that  the  accused 
killed  the  deceased  with  premeditation  and  while  in  the  possession  of  a 
sound  mind  and  of  his  reasoning  faculties;  and  that  if  the  jury  have 
any  doubt  on  this  point,  or  on  any  point  in  the  case,  they  are  bound  to 
give  the  prisoner  the  benefit  of  that  doubt. 

The  court  declined  to  give  any  of  the  instructions  so  requested,  but 
in  lieu  thereof  charged  the  jury  in  writing,  as  follows:  "  To  be  a  sul)- 
ject  of  punishment,  an  individual  must  be  a  moral  agent ;  must  have 
mind  and  capacity,  must  have  reason  and  understanding  enough  to 
enable  him  to  judge  of  the  nature,  character  and  consequences  of  the 
act  charged  against  him,  that  the  act  is  wrong  and  criminal,  and  that 
the  commission  of  it  will  properly  and  justly  ex[)ose  him  to  penalties. 
He  must  not  be  overcome  by  an  irresistible  impulse  arising  from 
disease.  The  law  can  give  no  full  and  precise  definition  of  sanity  or 
of  insanity  ;  each  is  a  question  of  fact,  and  the  jury  should  be  satisfied 
beyond  a  reasonable  doubt,  before  convicting  a  man  of  crime,  that  he 
is  of  sound  mind  —  a  sono  man;  if  insane,  he  slu)uld  be  acquitted. 
Every  person  of  mature  years  is  presumed  to  be  competent  to  commit 
crime,  and  to  be  of  sound  mind.  If  a  person  cliarged  with  crime  be 
shown  to  have  been  insane  a  short  time  before  the  commission  of  the 
act,  the  evidence  should  show  sanity  at  the  time,  or  the  jury  should  ac- 
quit." "  Drunkenness  does  not  excuse  a  party  from  the  consequences 
of  a  criminal  act;  one  crime  cannot  justify  another.  A  man  com- 
mitting a  criminal  act,  though  intoxicated  at  the  time,  is  a  legal  and 
proper  subject  of  punishment.  If  a  man,  b}'  long  continued  habits 
of  intoxication,  has  brought  on  insanity,  or  so  inq)aired  and  enfeebled 
his  mind  as  to  be  utterly  imbecile,  he  is  no  longer  punishable  for 


«)0«; 


DRUNKENNESS. 


State  V.  Johnson. 


crime.  If  upon  tlie  whole  evidence  tlie  jury  entertain  a  reasonable 
doubt  as  to  the  prisoner's  sufficient  soundness  of  mind  to  bo  rcs[)on- 
sible  for  his  acts,  it  will  be  their  duty  to  give  him  the  benefit  of  the 
doubt,  and  to  render  a  verdict  of  acquittal." 

The  court  further  charged  the  jury  orally  as  follows:  "  Murder  in 
the  first  degree  is  defined  b}'  our  statute  as  the  killing  of  any  person 
by  poison,  }>y  lying  in  wait,  or  by  any  other  kind  of  wilful,  deliberate, 
premeditated  killing,  or  when  perjjctrating  the  crime  of  robbery,  rape, 
burglary  or  arson.  This  indictment  docs  not  charge  tlie  commission 
of  this  crime,  either  by  lying  in  wait,  by  poison,  or  when  committing 
either  of  the  other  crimes  named  in  tlio  statute.  The  question  will  be 
for  you,  tnuler  this  indictment,  to  decide  wliether  the  accused  com- 
mitted the  crime  wilfully,  deliberately  and  with  premeditation.  On 
tliis  indictment  the  jury  may  bring  in  a  verdict  of  guilty  of  murder  in 
the  first  degree,  or  second  degree,  or  manslaughter,  or  not  guilty." 

The  jury  returned  a  verdict  of  guilty  of  murder  in  the  first  degree, 
and  the  prisoner  moved  for  a  new  trial,  for  error  in  the  refusal  of  the 
court  to  clnu'go  as  requested,  and  in  the  charge  given. 

There  was  also  a  motion  in  error  on  the  ground  of  the  insufficiency 
of  the  indictment,  but  as  the  decision  of  the  case  was  wholly  upon  the 
motion  for  a  new  trial,  that  part  of  the  case  is  not  stated. 

Hicks,  for  the  prisoner. 

O.  A.  Fay,  contra. 

Carpenter,  J.  —  There  being  a  difference  in  opinion  on  the  questions 
arising  upon  the  motion  in  error,  none  of  those  questions  are  now  de- 
cided, but  we  confine  our  attention  to  the  motion  for  a  new  trial. 

We  tliink  the  charge  of  the  court  upon  the  subject  of  insanity  was 
unexceptionable.  It  fully  complied  with  the  i-equests  of  the  prisoner's 
counsel,  so  far  as  those  requests  were  according  to  law.  The  language 
of  the  court  differed,  and  very  properlj'  differs  from  the  language  of  the 
requests  ;  but  the  law  of  the  cliarge  is  correct,  and  all  that  the  prisoner 
was  entitled  to. 

We  arc  also  of  the  opinion  that  the  court  was  not  bound  to  charge  as 
requested  upon  the  subject  of  intoxication.  If  the  prisoner  was  in  fact 
intoxicated  at  the  time  of  the  homicide,  that  does  not  as  a  matter  of 
law  reduce  the  offence  to  manslaughter,  much  less  does  it  justify  the 
prisoner.  Nor  does  it  in  point  of  law  reduce  it  to  murder  in  the  second 
degree.  There  was  no  error,  therefore,  in  refusing  to  charge  according 
to  these  requests. 


DUUNKENNKSH. 


G()7 


Relt'viint  on  Question  of  Deliberation. 


rea^onabh^ 
bo  respon- 
icflt  of  the 

Murder  in 
iny  person 
deliberate, 
ory,  rape, 
immission 
oinmittinjr 
on  will  be 
ised  com- 
tion.     On 
murder  in 
ilty." 
it  degree, 
sal  of  the 

afflciency 
upon  the 


luestions 
now  de- 
1. 

nity  was 
I'isoner's 
anguage 
?e  of  the 
prisoner 

large  as 
s  in  fact 
atter  of 
tify  the 
second 
3ording 


The  court  charged  the  jury  that  "  drunkenness  docs  not  excuse  a 
])arty  from  the  consequences  of  a  crinainal  act;  one  crime  cannot  justify 
another.  A  man  committing  a  criminal  act,  though  intoxicated  at  the 
time,  is  a  legal  and  proper  subject  of  i)unishiuent." 

This,  too,  as  a  general  proposition,  is  correct.  If  that  was  the  (July 
question  involved  in  the  case  it  would  be  entirely  free  from  dilllculty. 
But  the  real  question  is,  whether  drunkenness  as  a  fact  may  bo  consid- 
ered by  the  jury  as  evidence  tending  to  disprove  an  essential  fact  in  the 
case,  a  deliberate  intention  to  take  life. 

We  have  entertained  some  doubts  whether  tliis  question  was  made  in 
the  couit  below,  and  so  presented  here  as  that  we  can  properly  consider 
it.  In  the  first  place,  it  does  not  very  clearly  appear  that  the  intoxica- 
tion proved  or  claimed  was  of  such  a  degree  as  to  impair  the  capacity 
of  the  prisoner  to  form  a  deliberate,  premeditated  purpose  to  take  life. 
In  the  next  place,  it  does  not  appear  that  the  prisoner's  counsel  asked 
tlio  court  to  say  to  the  jury  that  the  intoxication  was  evidence  tending 
to  prove  that  the  killing  was  not  premeditated,  and  that  ho  could  only 
be  convicted  of  murder  in  the  second  degree ;  but  the  claim  was,  in 
substance,  that,  intoxication,  as  matter  of  law,  reduced  the  offence  to 
manslaughter. 

In  a  case  of  less  importance  these  considerations  might  have  some 
weight  and  induce  us  to  hesitate  to  grant  a  new  trial ;  but  in  a  capital 
case  we  are  not  disposed  to  enforce  the  rules,  however  salutary  those 
rules  may  bo  in  their  general  application,  so  rigidly  as  to  hold  the  pris- 
oner to  tlio  consequences  of  a  mistaken  view  of  the  law  by  his  counsel ; 
especially,  when  the  course  taken  on  the  trial  was  such  as  practically  to 
exclude  from  the  minds  of  the  jury,  a  fact  material  to  be  considered  in 
determining  not  whether  a  crime  was  committed,  but  the  measure  of 
guilt. 

The  prisoner  was  indicted  and  on  trial  for  murder  in  the  first  degree. 
As  the  homicide  was  not  perpetrated  by  the  means  of  poison,  or  lying 
in  wait,  or  in  committing  or  attempting  to  commit  any  of  the  crimes 
enumerated  in  the  statute,  he  could  only  be  convicted  of  the  higher 
offence  by  showing  that  it  was  a  wilful,  deliberate,  and  premeditated 
killing.  A  deliberate  intent  to  take  life  is  an  essential  element  of  that 
offence.  The  existence  of  such  an  intent  must  be  show"  ^s  a  fact.  Ira- 
plied  malice  is  suflflcient  at  common  law  to  make  the  --nee  murder, 
and  under  our  statute  to  make  it  murder  in  the  second  degree  ;  but  to 
constitute  murder  in  the  first  degree  actual  malice  must  be  proved. 
Upon  this  question  the  state  of  the  prisoner's  mind  is  material.  In  be- 
half of  the  defence,  insanity,  intoxication,   or  any  other  fact  which 


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DUUXKEXXESS. 


State  r.  .loliiison. 


tends  to  prove  that  the  prisoner  was  incapal)le  of  deliberation,  was 
competent  evidence  for  tlie  Jury  to  weigh.  Intoxication  is  admissible 
in  such  cases,  not  as  an  excus^ie  for  crime,  not  in  mitigation  of  punish- 
ment, but  as  tending  to  sliow  that  the  less  and  not  the  greater  offence 
was  in  fact  committi'(l.  I  cite  a  few  oidy  of  the  many  authorities 
which  sustain  tiiis  position:  Keenaa  v.  Commoitvealth  ;^  Huberts  v. 
People  ;  -  I'iijmKu  v.  iState;  •'  State  v.  Garre;/ ;  ■*  Ilaile  v.  i^tate; ''  Shcm- 
nalian  v.  Comma n weal tli :  ;^  Ray's  Medical  Jiu'isprudence.'' 

As  I  have  ahvady  said,  the  charge  of  the  court  was  in  itself  well 
enough  ;  but  wc  must  consider  it  in  its  application  to  the  case  on  trial, 
an('t  in  the  sense  in  which  the  jury  probably  understood  it.  When  they 
were  told  that  "  drunkeiniess  does  not  excuse  a  i)arty  from  the  conse- 
quences of  a  criminal  act,"  it  is  prol>able  that  they  did  not  distinguish 
!.  ^tTcen  excusing  a  crime  and  showing  that  the  specific  crime  charged 
'i;i'l  not  been  committed,  and  when  they  were  further  told  that  "  a  man 
•  ommitting  a  criminal  act,  though  intoxicated  at  the  time,  is  a  legal  and 
iH'oper  sul)Ject  of  punishment,"  they  undoubtedly  understood  the 
"  criminal  act  "  to  mean  mur<ler  in  the  first  degree,  and  i)unishment  to 
mean  capital  punishment,  and  that  the  intoxication  of  the  prisoner 
whether  little  or  much  could  legally  have  no  bearing  upon  the  question 
whether  it  was  murder  in  the  first  or  second  degree.  The  danger  is  that 
tha  jury,  while  making  up  their  verdict,  excluded  from  their  minds  the 
subject  of  intoxication  altogether ;  and  that  they  were  led  to  believe 
that  the  malice  implied  by  law  from  the  weapon  used,  and  the  circum- 
stances attending  the  offence,  was  sullicient  to  constitute  murder  in  the 
first  degree,  and  that  a  deliberate,  premeditated  design  to  take  life  was 
not  essential.  If  so,  it  is  manifest  that  injustice  may  have  been  douf 
the  prisoner.  I  think  the  court  should  have  submitted  to  the  considera- 
tion of  the  jury  the  fact  of  intoxication,  if  it  was  a  fact  to  be  weighed 
by  them,  in  connection  with  the  other  evidence  in  the  cause,  in  determin- 
ing whether  it  was  a  wilfid,  deliberate,  and  premeditated  killing. 

For  these  reasons,  a  majority  of  the  court  are  of  the  opinion  that  a 
new  trial  should  be  advised. 

In  this  opinion.  Park,  J.,  concurred.  Seymocij,  J.,  dissented.  Fos- 
ter, J.,  having  tried  the  case  below,  did  not  sit. 


'  44  Pa.  St.  5-. ; 
«  19  Mich.  401. 
»  14  Ohio  JM. 
4  11  Minn.  154. 


6  11  Humph.  154. 
•  8  Bush  (K>-.),463. 
'  (5thed.),5«56. 


STATE   V.  JOHNSON. 


'"09 


Syli.N  I.  . 


DEGREES  OF  MURDER  -  INTOXICATION  -  MALICE  —  IMPLIED  M.VLICE. 

State  v.  Johnson. 

[41  Couii.  686]. 
In  the  Supreme  Court  of  Errors  of  Connecticut,  November  Term,  1S74. 

Hon.  John  Ditank  Park,  Chief  Justice. 
"     Elisiia  Cakpkntku,       ] 
"     Lakayettk  S.  Fosteu,     , 
"     Ja.mks  PiiKM-s,  >Jti»tices. 

"     DwiuuT  W.  Pakdkk,     j 

1.  Intoxication  does notnecessarily  disprove  thu  existence  of  malice  in  the  commis- 

sion of  a  crimiuul  act. 

2.  Murder  in  First  Decree -Intoxication  -Malice.  -  On  an  indictment  for  murder  in 

tiio  ilrst  degree  which  by  statute  re-iuires  the  existence  of  actual  malice,  the  f.ict  that  the 
prisoner  was  intoxicated  at  the  time  is  to  be  considered  as  lending  to  orovo  that  such 
malice  did  not  c.xii-t. 

.1.  Murder  in  Second  Dejfree  -  Implied  Malice.  -  In  mur.ler  in  the  second  degree  which 
rests  upcn  implied  iiialue,  the  jury  may  llnd  the  existence  of  malice,  although  the 
prisoner's  condition  at  the  time  of  the  crime  disproves  express  malice. 

4.  Intoxication— When  relevant.— The  intoxication  of  the  prisoner  is  relevant  in 
determining  the  prisoner's  Mate  of  mind  at  the  time  of  the  act ;  and  in  connection  with 
proof  of  provocation  may  tend  to  show  that  the  act  was  one  of  sudden  passion  and  not 
of  premeditation,  and  that  therefore  the  homicide  is  manslaughler  and  not  murder. 

The  prisoner  •  was  again  put  on  trial,  this  time  on  an  indictment 
charging  him  with  murder  in  the  second  degree.  Verdict  guilty,  and 
prisoner  appealed. 

Ificks,  for  the  prisoner. 

G.  A.  Ftiy,  contra. 

Campbell,  J. —The  prisoner  was  on  trial  upon  an  indictment  for 
murder  in  the  second  degree.  His  counsel  requested  the  court  to 
charge  the  jury  "  that  if  the  jury  find  that  the  defend.nnt  was  intoxi- 
cated at  the  time  of  the  commission  of  the  act  alleged  in  the  indictment, 
and  was  thereby  in  such  a  condition  as  to  be  unable  to  form  a  deliber- 
ate and  premeditated  purpose  to  kill  any  person,  and  was  at  the  same 
time  unconscious  of  the  character  and  consequences  of  his  acts,  pro- 
vided he  had  no  deliberate  or  premeditated  purpose  to  kill  any  person 
prior  to  his  being  intoxicated,  then  the  jury  cannot  convict  the  defend- 
ant of  any  crime  higher  than  manslaught*^-. ' ' 


'  See  State  v.  Johnson,  ante. 


39 


GIO 


DRUNKENNESS. 


State  V.  Johnson. 


Tliis  request  coiitcinplatcs  a  condition  of  iiiiinl  and  body  in  which  it 
would  bc^  dillicnlt  to  do  any  cnininid  uct.  Tlie  mind  would  be  iut'a})iil)U! 
of  fill  ininij;  a  et'iniinal  intent,  and  if  it  was  in  that  condition  ))y  reason 
of  intoxication,  tlio  ph^'sical  organs  would  ordinarily  be  powerless  to  do 
harm.  Tho  case  does  not  show  that  the  defence  proved  or  chiinieil  that 
110  was  intoxicated  to  any  such  dc<xrce.  It  is  nn\nifest  from  (he  motion 
that  the  prisoner  if  intoxicated  at  all,  was  slightly  so.  ''Some  evi- 
dcuci'  "  tending  to  prove  it  was  ol'fereil ;  and  it  was  claimed  "  tii:it  his 
health  was  such  that  lie  was  more  easily  affi-cted  by  intoxicalini: 
liijuors ;  "  and  "  that  he  was  provoked  by  the  conduct  of  the  deceased 
to  such  a  degree  that  ho  was  wholly  beside  himself  and  for  the  time 
being  insane."  The  recpiest,  therefore,  was  not  pertinent  to  the  facts 
of  the  case,  nor  to  the  evidence  offered,  and  the  court  properly  refused 
to  charge  as  requested. 

The  court  charged  the  jury  that  "  the  law  recognizes  the  general 
principle  that  it  is  wrong  fen-  a  man  to  cloud  his  mind  and  excite  lii> 
passions  to  evil  actions  by  the  excessive  use  of  intoxicating  drink,  and 
if  he  does  this  voluntarily,  and  by  reason  of  its  effect,  does  what  thi' 
law  punishes  as  a  crime,  the  intent  to  drink,  and  the  evil  conse(iueiice 
combine  and  make  the  act  a  crime."  The  court  then  noticed  three 
important  qualilications  of  that  doctrine.  1.  When  the  intc^xication  is 
involuntary,  or  jjrotluced  by  stratagem  or  fraud  of  another.  2.  When 
excessive  drinking  long  continued  ri'sults  in  insanity  or  imbecility.  ,'3. 
When  the  law  recpiires  some  specillc  intent,  or  some  pjirticular  state  of 
mind,  as  an  essential  element  of  the  offence,  as  express  malice,  in  mur- 
der in  the  first  degree.  The  jury  were  then  told  that  murder  in  the 
second  degree  rested  on  implied  malice,  and  that  intoxication  does  not 
nccessiirily  rebut  or  disprove  any  essential  element  of  that  crime  ;  that 
intoxication  might  have  the  effect  in  connection  with  the  provocation  to 
ri'duco  the  offence  to  manslaughter.  The  prisoner  certainly  ought  not 
to  complain  of  this  charge.  It  will  be  noticed  that  the  charge  which 
his  counsel  claimed  should  have  lieen  given,  was  011I3'  intended  to  reduce 
the  offence  to  manslaughter.  For  that  purpose  he  had  the  benefit  of 
whatever  intoxication  was  proved,  and  in  the  only  way  in  which  lie  could 
have  it  legitimately.  A  criminal  intent  is  an  essential  clement  of  either 
crime.  To  constitute  murder  in  the  second  degree,  it  is  necessary  that 
that  intent  shall  be  the  result  of  malice.  In  manslaughter  it  may  be 
the  result  of  provocation  or  sudden  passion.  If  the  evidence  was  sufli- 
cient  to  show  that  it  was  caused  b}'  provocation,  then  it  disproved  the 
malice  ;  so  that  the  condition  which  the  prisoner  was  in,  must  have  been 
considered  by  the  jury  with  reference  to  the  (lucstion  of  malice. 


I.VTOXICATIOV    NO    DKFK.Nf  K. 


nil 


Does  not  Disprove  Malii 


J  wliicli  it 
incapable 
by  reason 
K'ss  to  do 
inu'il  tliat 
lie  motion 
■ioiiK"  evi- 
•Ili:it  hi.s 
oxieatiiiir 
deceased 
llie  time 
thi'  facts 
y  refused 

3  general 
xeite  ills 
■ink,  and 
what  the 
secjuence 
ed  three 
cation  is 
2.  When 
lity.     ,'3. 
slate  of 
,  ill  mur- 
n-  ill  the 
iocs  not 
ne;  that 
-•ation  to 
ught  not 
je  which 
o  reduce 
Micfit  of 
he  could 
3f  either 
ary  that 
may  l)e 
as  sufli- 
ved  the 
ive  been 


The  counsel  for  the  prisoner  during  the  aigunient  seemed  to  claim 
that  intoxication  was  an  excuse  for  any  crime  ;  at  least  the  argument 
logically  tended  to  tliat  conclusion,  and  it  was  claimed  that  thia^ court, 
when  this  case  was  l)efore  us  on  a  former  occasion, i  hud  t:d<en 
one  step  in  tiiat  direction,  and  that  wo  could  not  now  con^stently 
refuse  to  take  unotlu'r.  We  have  enunciated  no  smh  doctrine: 
and  nothing  said  in  that  case,  if  comprehended,  and  candidly  considered, 
will  bear  any  such  construction.  We  distinctly  held  that  on  a  trial  for 
murder  in  the  first  degree,  which,  under  our  statute,  requires  ort.mJ 
('xprKs.s  vudirc,  the  jury  might  and  should  take  into  consideration  the 
fact  of  intoxication  as  tending  to  prove  that  such  malice  did  nut  exist. 
And  we  as  distinctly  hehl  that  "  drunkenness  does  not  excuse  ji  party 
from  the  consequences  of  a  criminal  a(!t ;  one  crime  cannot  excuse 
another,  a  man  committing  a  criminal  act,  though  intoxicated  at  the 
lime,  is  a  legal  and  proper  subject  of  punishment." 

We  are  now  asked  to  recede  from  this  latter  position,   and  take  a 
dei)arture  from  the  common  law,  and  the  law  of  our  sister  States,  and 
to  establish  the  doctrine  that  a  drunken  man  cannot  connnit  tlie  crime 
■jf  murder;  that  intoxication,  in  law,  dispn.ves  the  existence  of  malice. 
]\[nrder  in  the  second  degree,  as  the  jury  were  proi)erly  told,  rests 
upon  implied  malice.     IVIalice  may  be  implied  from  the  circumstances 
of  the  ho.nicide.     If  a  drunken  man  takes  the  life  of  another,  unaccom- 
panied with  circumstances  of  provocation  or  justification,  the  jurv  will 
be  warranted  in  finding  the  existence  of  malice,  though  no  express  malice 
be  proved.    Intoxication  which  is  itself  a  crime  against  society  combines 
with  the  act  of  killing,  and  the  evil  intent  to  take  life  which  necessarily 
accompanies  it,  and  all  together  afford  sullicient  grounds  for  implying 
malice.  ° 

Intoxication,  therefore,  so  far  from  disproving  malice,  is  itself  a 
circumstance  from  which  malice  may  be  imi)lied.  We  wish,  therefore, 
(o  reiterate  the  doctrine  emphatically,  that  intoxication  is  no  excuse  for 
crime  ;  and  we  trust  it  will  be  a  long  time  before  the  contrary  doctrine, 
which  would  be  so  convenient  for  criminals  and  evil  disposed  persons^ 
will  receive  the  sanction  of  this  court.     A  new  trial  must  be  denied. 

In  this  opinion  the  other  judges  concurred. 

'  State  v.  Johnson,  40  Conn.  136 


T 


eA2 


DRUNKENNESS. 


.IdiU's  I'.  Stiitf 


DRUNKENNESS  —  I  )KC.REES  OF  MrRDEH  — PRO  VOCATION. 

Jones  v.  State. 

[211  Oil.  5'.»4.] 

In  the  Supreme  Court  of  Georgia^  January  Term,  ISGO. 

Drt'-nkennesa—Defrreesof  Murder  — Provocation. —  In  deciding  ns  to  tlic  degree  nf  a 
homicide,  the  jury  may  consider  tliedruntcenncs.4  of  tlie  accused  nt  the  time  of  tlu;  kill- 
ing, not  to  excuse  or  mitigate  or  e.\tenuate  Ids  crime,  but  to  assist  tlicni  indecidir-  when 
there  was  a  iirovocntion,  whether  the  intention  to  kill  preo^dcd  the  provocation,  or  wuh 
I)roduccd  by  it. 

The  prisoner  was  tried  in  the  Richmond  Supreme  Court  before  Juds^o 
Holt,  for  the  murder  of  Willitim  C)sl)orne.  The  killing  was  admitted 
and  the  defence  turned  entirely  upon  the  grade  of  the  homicide.  Ver- 
dict, guilty. 

Alex.  II.  Stephem  and  E.  J    tVnlker,  for  prisoner. 

Solicitor-General  Rogem  and  W.  R.  Leiois,  for  the  State. 

Stkpiikns,  J.,  delivered  the  opinion  of  the  court. 

(Omittii.g  a  decision  on  another  point.) 

In  grading  this  homicidi',  what  instructions  ought  to  have  1)een  given 
to  the  jury  concerning  the  drunkenness  of  the  accused?  This  court, 
approving  of  the  judge's  refusal  to  give  the  instructions  asked  by  the 
defence,  thinks  that  other  important  instructions  not  given  would  have 
been  appropriate  to  the  facts  in  evidence.  I  shall  point  out  what  we 
think  would  have  been  the  proper  instructions,  but  shall  first  present 
those  views  of  the  general  subject  which  lead  my  own  mind  to  the  con- 
clusions at  which  the  court  arrived. 

One  side  in  the  argument  affirms  as  a  great  principle,  that  no  man, 
drunk  or  .sober,  should  be  punished  for  a  crime  which  he  did  not  have 
sutlicieut  mind  to  perpetrate  ;  and  the  other  repliet^,  with  an  equally  im- 
portant principle,  that  drunkenness  is  no  excuse  for  crime.  The  two 
sides,  each  relying  upon  its  chosen  principle,  itave  arrived  at  singularly 
conflicting  conclusions.  The  truth  is,  that  both  these  principles  are  cor- 
rect, and  constitute,  with  tl.e  just  deductions  from  them,  but  parts  of  tni 
harmonious  whole,  sustained  by  law  and  sanctioned  by  reason. 

The  error  which  the  side  of  the  accused  commits,  lies  in  assuming  too 
large  a  quantum  of  mind  as  the  minimum  which  can  furnish  the  neces- 
sary mental  element  in  all  crime  —  in  erecting  too  high  a  standard  of 
mental  capacity.  Different  classes  of  crime  do  involve  different  degrees 
of  mind,  and  in  all  cases  there  may  arise  particular  instances  which  in 


I 


DIUNKKNNKSS. 


<;i3 


Li'gul  Mulicu  DelliicMl. 


ION. 


B  degree  of  a 
e  ot  the  kill- 
icidir  wliL-n 
ntioii,  or  WU8 


ore  Jud<yo 
i  admitted 
ido.     Ver- 


>cen  given 
Ills  court, 
ed  by  tlie 
)iild  have 
;  what  vc 
it  present 
)  the  con- 

t  no  man, 
not  have 
luall}'^  im- 
The  two 
lingiilarly 
s  are  cor- 
irts  of  an 

imingtoo 
le  neces- 
ndard  of 
t  dejrrces 
which  in 


the  mode  and  circumstances  of  their  perpetration  iniiy  involve  even  a  high 
degree  of  Kcientillc  knowledge.  But  subject  to  this  (lualitication  of  the 
general  trutli,  the  general  truth  itself  is  tliat  the  miuimiini  of  mind  which 
can  furnish  the  necessary  mental  element  in  crime  is  a  far  smaller  (pian- 
tity  than  was  claimed  by  the  argument  for  the  accused.  The  argument, 
rightfully  assuming  that  there  can  be  no  murder  without  the  mental  ele- 
ment of  malice,  proceeded  to  claim,  as  lu'ing  necessarily  involved  in 
malice,  an  amount(jf  memory  and  reason,  «hieh,  I  think,  is  not  justified 
by  the  legal  dimensions  of  that  malice  which  enters  into  the  constitu- 
tion of  murder.  The  popular  idea  of  malice,  in  its  sense  of  revenge, 
hatred,  and  ill  will,  has  nothing  to  do  with  the  subject.  A  nundicr  of 
cases  might  be  given  to  show  the  difference  between  the  jiopular  idea, 
and  that  malice  which  forms  a  necessary  part  or"  the  legal  crime  of 
murder. 

The  crime  of  infanticide  i)resents  the  difference  in  a  striking  light. 
This  crime  is  clear  nuwdcr,  and  the  mother  wliu  destroys  her  infant  to 
conceal  her  own  shame,  has  legal  malice,  though  in  point  of  fact  she 
may  feel  no  hatred  towards  any  human  being  in  the  world,  nor  any 
indifference  to  human  life  in  general,  and  may  actually  have  the  yearn- 
ings of  a  mother's  love  towards  her  innocent  victim,  loving  its  life  just 
less  than  her  own  reputation.  Here  there  is  no  malice,  in  the  popular 
sense  assumed  in  this  argument,  and  yet  the  law  says  there  is  malice, 
and  that  the  killing  is  murder ;  and  reason  gives  its  undoubting  sanc- 
tion to  the  law.  The  legal  idea  of  malice  in  the  crime  of  nuu'der  is, 
simply,  an  intent  to  kill  a  human  being,  in  a  case  where  the  law  would 
neither  justify  nor  in  any  degree  excuse  the  intention,  if  the  killing 
should  take  place  as  intended.  I  make  no  distinction  betwi-en  malice 
express  and  malice  implied  in  this  definition,  for  there  is  no  difference 
except  in  the  mode  of  arriving  at  tlie  fact.  You  may  prove  the  partic- 
ular intent,  or  you  may  prove  the  more  general  intc.it,  which  includes 
it,  and  implies  it,  but  the  thing  when  once  you  get  it,  is  the  same  in 
both  cases,  and  is  the  simple  intent  to  kill  a  human  being  in  such  a  case 
as  I  have  stated,  whether  this  Intent  springs  from  hatred  or  a  sense  of 
shame,  or  from  the  mere  frenzy  of  drunkenness,  it  is  malice,  it  is  the 
mental  constituent  of  murder,  unless  there  is  something  to  justify  the 
intent  or  in  some  degree  to  excuse  it.  Now  the  kind  of  a  case  in  which 
this  intent  happens  to  be  formed,  obviously  has  nothing  to  do  with  the 
quantum  of  mind  involved  in  its  formation.  Whoever  thi-n  has  mind 
enough  to  form  the  simple  intention  to  kill  a  human  being,  has  mmd 
enough  to  have  malice,  and  to  furnish  the  mental  constitiients  of  mur- 
der.    And  even  this  nuantutii  of  mind,  snuill  as  it  is,  is  to  be  viewed  and 


CM 


DIU'NKKNNESS. 


Jones  V.  Stall*. 


invcstifiMlc'd  in  tlic  li^lit  of  tin  important  rulo  of  fvidonce,  applicable 
to  all  nu'U  aliki',  and  founded  on  reason  and  necessity.  It  i.s,  that  all 
men  arc  presmued  to  intend  the  natural  and  proxiniati;  cou.seiiucnces  of 
their  actions.  Wlien  a  man  kills  anotlier  by  the  use  of  means  appro- 
priate to  that  end,  he  is  presumed,  drunl<  or  sol)er,  to  have  intcndetl 
that  end. 

This  is  but  a  i)resuniption,  but  it  nnist  prevail  until  It  is  rebutted  by 
other  facts  and  circumstances,  showing  tliat  the  end  was  not  intended, 
but  was  accidental.  It  cannot  l)e  rebutted  by  the  mere  vague  opinions 
of  witnesses  that  the  man  had 'mio  uiind,"  or  "didn't  seem  to  know 
he  was  doing  wrong"  The  result  is,  then,  that  any  man,  sober  or 
drunk,  sane  or  insane,  has  mind  enough  to  furnish  the  mental  element 
in  murder,  •when  he  has  enough  to  form  the  intention  to  kill  a  human 
l)eing;  and  he  shall  be  presumed  to  have  formed  that  intention,  wlien- 
cver  he  has  'lone  the  act  of  killing  by  tiie  use  of  a|)propriate  means, 
unless  there  are  circumstances  to  show  that  death  was  an  accidental  and 
not  an  inti'uded  conse(iuence  of  his  act.  This  doctrine,  faithfully  en- 
forced, offers  no  escape  to  tlie  drunken  man,  from  punishment  for  the 
crimes  which  he  connnits,  and  fen*  those  not  committed  by  him,  he  ouglit 
not  to  be  i)unislu'd.  I'nder  this  doctrine,  if  it  were  the  whole  law  ap- 
plicable to  his  case,  even  the  poor  idiot  could  •'  scarcely  be  saved." 
But  it  is  not  the  whole  law  applicable  to  his  case. 

And  this  brings  me  to  a  consideration  of  tiie  great  perversions  which 
have  been  made  of  the  doctrine  that  drunkenness  is  no  excuse  foi 
crime.  The  foundation  stone  of  these  perversions,  not  distinctly  shaped 
in  the  argument,  l)ut  unconsciously  assumed  in  it,  is  a  feeling  or  notion 
that  the  exemption  of  insane  persons  and  3'oung  children  from  criminal 
responsibilit}'  is  not  th>'  result  of  positive  law  excusing  them,  but  is  the 
simple  consequence  of  their  mental  deficiency,  which  is  supposed  to  be 
so  complete  as  not  to  be  capable  of  furnishing  the  mental  element  of 
crime  ;  while  the  drunken  man,  with  the  same  actual  mental  deficiencj-, 
is  held  resi)onsible  for  his  actions,  not  because  they  are  crimes  havinu 
the  mental  and  pliysical  element  of  crime,  but  b}'  virtue  of  a  certain  de- 
structive capacity  infused  into  him,  from  reasons  of  policy,  by  the  law 
which  declares  that  drunkenness  shall  be  no  excuse  for  crime.  The  re- 
verse of  all  this  is  the  true  philosophy  of  the  law.  The  law  deals  with 
all  of  these  classes  of  people,  as  having  a  sufficient  quantum  of  mind  to 
have  bad  passions  and  evil  intentions,  and  carelessness  in  their  actions, 
and  so  to  furnish  the  mental  element  of  crime,  but  as  laboring  also  un- 
der an  inferiority  of  reason,  wliich  serves  to  betray  them  into  these  evil 
intentions  and  carelessness,  and  at  the  same  time  breaks  down  this  power 


DKl  NKKNNKNS    (ANNOT    i:.\(  INK    (  IM.MK. 


r.i5 


liut  niuy  hhow  that  no  Clinic  wusConmiitteil, 


tipplioablc 
i.s,  that  all 
lucnct's  of 
Ills  uppro- 
!  intended 

butted  by 

iiilended, 

e  opinions 

II  to  know 
sobtT  or 

III  clonient. 
:i  liiinmn 

on,  w!ien- 
ite  int'aiis, 
U'lituI  siiid 
lifiilly  eu- 
iit  for  the 
,  lie  oii<'lii 
le  law  ap- 
;  saved." 

ms  •which 

X'use   for 

y  shaped 

or  notion 

criminal 

)ut  is  the 

ed  to  be 

einent  of 

fieiency. 

s  having 

rtain  de- 

y  the  law 

'I'hc  n- 

cals  with 

niiiid  to 

actions. 

also  nii- 

lese  evil 

IS  power 


of  resisting  temptation.  The  law  comes  in  then,  and  excuses  the  young 
and  the  insane,  out  of  tendi'rness  towards  an  inlirniity  wliifh  is  iiivohm- 
tary,  and  at  the  same  time,  to  guard  against  the  possibility  that  men 
might  make  the  same  excuse  whenever  there  is  tl:e  same  inlirmity  of 
reason,  the  law  takes  special  care  to  exeliuh-  druiikin  men  fn^iii  the  ex- 
cuse, liecause  their  inlinnity  is  voluntai  v. 

The  result  is  that  the  young  and  tlu'  involuntary  insane  occupy  a 
platform  of  their  own  by  virtue  of  an  exception  made  in  their  favor, 
while  the  voluntary  insanity  of  drunkenness,  being  excluded  from  the 
exception,  stands  just  as  if  no  exception  had  been  made,  and  the  drunk 
man  and  sober  man  occui)y  the  .same  great  platfoiin  of  responsibil- 
ity for  the  crimes  which  they  commit,  and  for  no  others.  When  their 
actions  have  the  criminal  mental  element  unit«'d  with  them,  tl'ey  become 
crimes,  but  ii(>t  tUlV'cn. 

The  crimes  of  drunk  men,  like  those  of  sober  men.  are  actual  crimes, 
not  constructive  ones  —  whole  crimes,  not  pieces  of  crimes.  And 
drunkenness,  like  all  other  things  which  are  not  made  excu.ses  liy  posi- 
tive law,  is  no  excuse  for  crime,  but  is  like  all  the  rest,  a  fact  which 
ought  to  be  used  whenever  it  can,  as  it  often  may  df),  to  shed  light  upon 
ciUii-r  branch  of  the  alleged  crime,  the  ph3'sical  or  rnontal,  in  investi- 
gating Avhat  crime,  or  whether  an}'  crime  has  been  committed. 

The  arguineiit  might  safely  be  U'ft  wiiere  it  now  stands,  l)iit  I  prefer 
to  trace  the  fallacies  which  have  been  founded  on  a  sound  principle 
through  the  two  s[)ecial  forms  in  which  they  have  presenti'd  themselves. 
One  is  this:  Drunkenness  is  no  excuse  for  crime,  therefore  drunken- 
ness cannot  be  used  for  any  purpose  of  defence  in  a  criminal  accusa- 
tion. A  non-seqnitur  if  ever  there  was  one.  Ignorance  of  chemistry  is 
no  more  an  excuse  for  crime  than  drunkenness ;  therefore,  if  the  rea- 
soning be  good,  ignorance  of  chemistry  can  not  be  used  for  any  jjiirpose 
of  defence  in  a  criminal  accusation.  If  Dr.  Webster,  on  his  celebrated 
trial  at  Boston  some  years  ago  for  the  nnirder  of  Dr.  Parkman,  could 
have  shown  that  he  was  ignorant  of  chemistry,  he  could  have  shown 
conclusively,  not  that  he  had  an  excuse  for  the  murder,  but  that  lie  did 
not  commit  it ;  for  the  .slayer,  Avhoever  he  was,  had  carried  the  dead 
body  through  a  process  of  destruction,  involving  high  chemical  knowl- 
edge. No  doubt  the  court  would  have  allowed  him  to  save  his  life  by 
proving  his  ignorance  of  chemistry,  although  ignorance  of  chemistry 
was  no  excuse  for  crime.  Suppose  now,  the  Doctor  could  have  proved 
that  he  had  been  drunk  to  the  point  of  stupor  or  7M'«?i/a  ^>>/»,  during 
the  lime  when  that  chemical  process  must  have  been  performed.  No 
doubt  the  court  would  have  allowed  him  to  do  so,  not  to  excuse,  miti- 


616 


DKl'NKKNNKSS. 


JoneH  V.  State. 


gate,  or  cxtoniinto  liin  crimo,  bnt  simply  to  show  in  a  vory  satisfactory 
way  tliat  lie  liad  not  conimittod  tlic  crimo;  for  it  is  exceedingly  im- 
l)rol)al)le  tluit  a  man  in  timt  degree  of  drunkenness  could  luive  conducted 
tlie  chemical  process.  And  Dr.  Webster  would  luive  bei'u  allowed  to 
save  his  life  by  |)r()ving  that  he  was  drunk. 

S(mie  years  »<j;o  T  kni-w  an  attempt  at  house-ltiirninu',  where  the  slow 
match  found  after  tlie  fire  had  been  extinguished,  exhil)itcd  great  inge- 
nuity in  the  bending  of  wires  and  crooking  of  pins  in  a  peculiar  way, 
so  as  to  secure  both  slovvness  and  certainty  of  ignition.  The  crooking 
of  the  pins,  especially,  in  a  manner  so  peculiarly  adapted  to  the  end  in 
view,  was  the  theme  of  village  wonder  for  weeks  afterwards,  and  is  still 
remembered  ])y  many  persons  as  a  remarkable  display  of  mechanical 
genius.  Now  there  were  two  or  three  men  who  frequented  that  village 
in  those  days,  any  one  of  whom,  if  suspicions  had  fallen  on  him,  could 
have  proven  that  at  any  time  for  a  week  before  the  fire  he  had  been  too 
drunk  to  crook  a  |)in.  Would  any  man  have  discarded  that  evidence  if 
he  had  been  seekincj  for  the  truth?  Both  these  illustrations  show  the 
absurdity  of  excluding  the  consideration  of  drunkenness,  in  investigat- 
ing the  act  which  enters  into  the  allegctl  crime  •  bnt  another  form  of  tlie 
fallacy,  is  that  when  the  act  ai)pears  to  have  been  done  by  the  accused 
he  shall  not  be  allowed  to  excuse  his  act  by  any  consideration  of  his 
dnmkenness.  It  might  be  suflftcient  to  reply  to  this  by  saying  the  law 
says  that  for  crimes,  not  acts,  drunkenness  shall  be  no  excuse.  This 
form  of  the  fallacy  ignores  utterly  the  most  important  clement  of  the 
crime;  for  the  mental  part  of  the  crime  is  criminal  in  morals  and  re- 
ligion without  its  union  Avith  any  act  whatever,  while  neither  in  law  nor 
morals  has  the  act  any  criminality  whatever  until  coimected  with  a 
criminal  state  of  mind.  Acts  need  no  excuse  ;  crimes  do.  This  form 
of  the  fallacy  puts  a  drunk  man,  not  on  the  same  platform  with  sober 
men,  but  on  a  nuich  more  disadvantageous  one.  'I'he  act,  when  done 
by  appropriate  means,  carries  a  presumption  against  all  men,  sober  oi' 
drunk,  that  it  was  intended  to  be  done  ;  but  this  proposition  is  to  leave 
it  but  a  presumption  against  sober  men,  and  to  fix  it  irrevocably  against 
a  drunk  man.  The  proposition  admits,  that  dinnkenness,  like  any 
other  '*  no  excuse  "  for  crime,  may  be  used  to  throw  light  on  the  inves- 
tigation into  the  physical  constituent  of  the  crime,  but  denies  that  it 
may  be  used  in  examining  into  the  mind,  which  is  the  special  field  where 
drunkenness  displays  its  power.  That  is  to  say,  it  ma^-  be  used  in  that 
part  of  the  investigation  on  which  it  ordinarily  throAvs  least  light,  but 
must  be  excluded  from  that  branch  in  which  it  usually  throws  most 
light.     Can  there  be  a  sensible  reason  for  such  a  discrimination  between 


EVIl>KNCK   OF   DKUNKKNNKSS. 


017 


May  Sliow  that  Act  was  Innocent. 


tisfactory 
lingly  iin- 
oiidiK'tod 
llowcd  to 


tlie  slow 
•Gilt  iiiuc- 
ilinr  way, 
crookinc: 
10  end  in 
nd  is  still 
echanical 
lit  villai^c 
m,  could 
boon  too 
idcnce  if 
iliow  the 
\('stigat- 
m  of  tlio 
.MPcused 
m  of  his 
r  the  law 
B.     This 
It  of  the 
and  re- 
law  nor 
I  with  a 
n's  form 
th  sober 
•n  done 
jober  or 
to  leave 
against 
ike  any 
i  inves- 
that  it 
i  where 
in  that 
lit,  but 
8  most 
etween 


the  purposes  for  which  drunkenness  may  be  used  ?  It  is  too  apparent 
to  need  argument,  that  when  the  act  is  shown,  the  mental  constituent  of 
the  crime  still  remains  to  l)o  investigated,  and  in  this  investigation  there 
can  be  no  rational  discrimination  made  between  the  light  which  may  be 
shed  upon  it  l)y  drunkenness,  and  that  which  may  be  sht'd  l)y  any  other 
fact  in  the  world.  Let  me  illustrate  this  branch  of  the  investigation.  The 
fact  of  being  a  skilful  physician  is  no  more  an  excuse  for  crinu;  than 
drunkenness  is,  and,  therefore,  if  tlie  reasoning  in  the  last  form  of  the 
fallacy  be  good,  the  fact  of  bi-ing  a  skilful  pliysician.  ought  not  to  l)e 
used  for  the  purpose  of  showing  with  what  intention  an  act  was  done. 
A  man  indicts  another  for  an  attempt  to  poison  him,  and  proves  that  the 
accused  actually  administered  arsenic  to  him.  Here  the  act  is  done,  and 
the  sole  (juestion  is  as  to  the  intent  with  which  it  was  done.  The  accuse<1 
simply  shows  that  he  was  a  skilful  physician,  and  this  single  fact,  in 
connection  with  other  facta  that  the  man  did  not  die,  but  got  well,  ex- 
plains the  whole  case,  and  shows  that  the  act  was  done  with  an  innocent 
and  praiseworthy  intention ;  for  if  a  skilful  physician  should  intend 
to  kill  by  arsenic,  he  would  infallibly  regulate  the  dose  to  kill  and  not 
to  cure.  And  here  the  man  is  i)ermitted  "  to  ex(Mise  "  his  act  in  the  lan- 
guage of  the  fallac}',  by  proving  his  own  superior  knowledge,  a  fact 
which  of  all  others,  is  surely  the  last  which  ought  to  be  allowed  to  ex- 
cuse any  crime.  Is  it  not  plain,  that  he  does  not  use  the  fact  "  to  ex- 
cuse his  act,"  but  simply  to  show  that  the  act  was  an  innocent  one 
which  needed  no  excuse?  Shall  not  drunkenness  lie  used  for  the  same 
p*irpose  when  it  can  shed  the  same  light? 

A  skilful  marksman  shoots  at  a  bird,  at  a  short  distance,  1)ut  misses 
the  bird  and  kills  a  man  who  was  behind  the  bush,  and  who  turns  out  to 
be  one  with  whom  the  marksman  had  a  deadly  feud.  He  is  indicted  for 
murder  The  fact  that  a  man  so  skilful  with  his  gun  should  have  missed 
the  bird  at  so  short  a  distance,  and  should  have  hit  his  enemy,  makes  a 
strong  impression  that  the  shooting  at  the  bird  was  but  a  pretense  to 
cover  the  real  intention  to  slay  his  enemy.  But  the  man  shows  that  he 
was  very  drunk,  a  fact  which  renders  it  at  once  very  probable  that  he 
should  have  missed  the  bird,  and  very  improbable  that  he  had  sufficient 
capacity  for  so  deep  an  artifice  as  the  one  imputed  to  him,  for  drunk 
men  are  much  more  apt  to  be  the  victims  than  the  perpetrators  of  tricks. 
Is  there  in  the  world  an  enlightened  Christian,  or  a  barbarian,  who  will 
say  that  this  man  ought  not  to  be  allowed  to  save  his  life  b}'  proving  that 
he  was  di'unk?  The  fact  has  no  effect  to  excuse  his  crime  nor  to  excuse 
his  act,  but  to  show  that  his  act  thfnigh  an  unfortunate  one,  was  inno- 
cent and  needed  no  excuse ;  or  else  to  show  that  it  was  not  an  act  of 


<U8 


DIMNKKXNKSS. 


Joiifs  c.  stale 


murder,  hutnn  aH  of  involuntary  nj:iii>l!ui<;litpr,  in  the  pursuitof  a  law- 
ful intonl  witliDiit  due  caiitioii  and  circuinspcetion.  On  tlie  ({iiestion  of 
murder,  liis  drnnki'nncss  is  in  iiis  favor,  but  on  tlu'  (lucstion  of  rarcless- 
nossin  the  pursuit  of  his  lawfid  intent,  it  is  against  iiitn  ;  for  carelessness 
is  nuich  more  easily  believed  of  a  drunken  man  llian  of  n  sober  man. 
His  drunkeiuiess  saves  him  from  the  one  charge  and  convicts  him  per- 
haps of  the  otiur,  not  by  excusing  the  one  crime,  nor  aggravating  (he 
other,  but  simply  by  shecMing  the  light  of  truth  upon  both.  Apply 
these  principU's  to  the  case  before  us.  Osltornc  with  one  hand  seizes 
Jones  by  the  arm,  and  with  theotherby  the  throat  and  pushes  him  back. 
Jones  stabs  Osborne  and  kills  him.  Jones  is  indicted  for  nnirdi-r.  Ilis 
defence  is  that  the  killing  was  but  tiu!  repelling  of  an  assaidt  and  bat- 
tery, which  reduces  it  to  manslaughter  at  all  events,  and  will  rdso  reduce 
it  to  justifialile  homicide,  if  the  jury  should  think  ho  had  reasonable 
fear  that  Osborne  would  choke  him  to  death.  The  State  replies  that 
though  siu.'h  an  assault  and  battery  occurred,  the  killing  was  not  pro- 
duced by  it,  and  was  but  tlu'  execution  of  an  intent  formed  and  in 
progress  of  execution  l>efore  the  assaidt  and  battery  occured.  Right  liLi  <• 
hangs  the  case,  the  defence  maintaining  that  the  intent  to  kill  was  pro- 
duced by  the  i)rovocation,  and  the  Slate  mainttiining  that  it  existed 
before.  What  is  the  evidence  to  support  the  view  of  tiie  State?  Jones 
was  walking  up  to  Osborne  with  a  knife  in  his  hand,  and  he  was 
very  drunk.  Here  his  drunkenness  is  against  him.  for  it  is  easier  to  be- 
lieve that  a  reckless  drunk  man  intends  to  kill  without  provocation,  than 
that  a  thoughtfid  sol»cr  man  has  such  an  intention.  This  is  the  whole 
case  made  by  the  circumstances  of  the  fatal  rencontre  to  show  that 
Jones  had  an  intention  to  kill  before  he  received  the  provocation.  But 
the  State  wisely  chose  not  to  rest  the  ca«c  there,  and  the  strongest  evi- 
dence on  the  point  is  light  rellected  from  a  previous  rencontre,  in  which 
Jones  had  much  more  clearly  manifested  the  intent  to  kid.  The  argu- 
ment was,  that  having  hsid  the  intention  in  the  first  rencontre,  he  must 
be  i)resumod  to  h  ve  persisted  and  continued  in  the  same  state  of  mind, 
up  to  the  time  of  the  second  rencontre,  a  ver^-  short  time  afterwards.  The 
interval  between  the  two  rencontres  is  n(}t  definitely  stated,  but  it  was 
sufficiently  long  for  J(Mies  to  be  put  out  of  the  house  and  come  back 
again,  and  be  the  interval  long  or  short  the  whole  force  of  the  argument 
lies  in  his  pn-sumed  persistence  and  continuance  in  the  same  state  of 
mind  from  the  first  rencontre  to  the  second,  and  right  here  his  deep 
drunkenness  was  evidence  in  his  favor,  tending  to  rebut  the  presumi^tioii 
of  such  a  persistence  or  continuance  in  the  same  state  of  mind.  Who 
needs  to  be  told  that  drunkenness  ma}'  almost  destroy  memory  for  the 


UKLEVANT   ON    gilSTION    OF    I'lJOVOCATlON. 


GID 


|)i>(>  not   .Mitigate  Criiiit'. 


it  of  a  law- 
[uostion  of 
f  rurcless- 
iri'lcssnoss 
obcr  man. 
8  liiiii  piT- 
vatiiif^  the 
1.     Apply 
iiid  seizt'H 
liim  hack. 
JiT.     His 
I;  and  bat- 
Iso  rcduct' 
:':isonal)lo 
plies  til  at 
I  not  pro- 
1  and  ill 
tight  hcie 
was  pro- 
I   existed 
?    Jones 
I  lie  was 
ier  to  be- 
on,  than 
he  whole 
l»ow  that 
n.     But 
gest  evi- 
in  which 
lie  argii- 
he  must 
>f  mind, 
s.     The 
t  it  was 
Tie  back 
•gumeiit 
state  of 
is  deep 
unptioii 
Who 
for  the 


time,  making  it  as  a  mere  .s/c/v,  letting  events  aii<l  thoughts  and  inten- 
tions slip  through  it  as  mum  an  they  fall  into  it?  lie  might  have 
forgotten  the  first  rencoiitn'  and  all  its  passions  and  intentions,  and  so 
brought  none  of  them  to  tlic^  second  —  if  he  wsis  (vry  drunk.  liut 
drunkenness  far  short  of  the  point  of  cxtieiiie  forget  fulness,  renders  the 
mind  inconstant  in  purpose,  and  exceedingly  whimsical  and  rapid  in  its 
changes  from  one  emotion  to  another,  and  even  from  one  elassof  emo- 
tions to  another  class.  Who  has  not  seen  the  drunken  man  Jireathing 
threats  one  moment,  and  the  next  uttering  maudlin  |)rofessions  of  friend- 
ahij)  — inone  moment  an  imaginary  hero,  in  the  next  an  abject  whim- 
perer? 

The  whole  tendency  of  drunkenne...  was  to  change  that  slate  of  mind  — 
which  the  State  maintained  ii.-id  not  been  changed,  but  had  continued 
from  the  first  rencontre  to  the  scMond.  Its  tcmlenev  was  to  rebut  the 
strongest  evidence  which  sliowi  ■  the  formatio  i  of  an  intent  to  kill  l)ef()re 
the  provocation  was  given,  and  it  is  r\Metly  for  this  pur|)ose  that  the 
drunkenness,  in  tl:j  opinion  of  this  (  oui  I,  ought  to  have  been  considered 
by  the  jury,  to  assist  them  in  di-cidlng  whether  the  intent  to  kill  pre- 
ceded the  provocation,  or  was  produced  by  it. 

Jud'jment  reversed. 
Lyon,  J.  dissenting. 


DRUNKENNESS 


IRKELEVANT  ON 


DOES    NOT  MITKJ.VTE   CRIME 
QUESTION  (JE  DEtiRKE. 

State  v.  Cijoss. 


[27  Mo.  382.] 
In  the  Supreme  Court  of  Missouri,  October  Term,  185S. 


Hop.  VVim.iam  Scott, 


I 


"     Wii.i.iA.M  H.  Nai'To.v,     \  Jmlijca. 
"    John  C.  RuiiAituso.N-  ) 

Drunkenness  does  not  inillgato  a  crime;  neither  can  it  bo  taken  into  consideration  by  a 
Jury  In  rtetenniiiing  whcilier  ii  person  coniiuittinj,'  a  bomieidc  acted  therein  wilfully, 
deliberately ,  and  prenieditaledly,  so  as  to  constitute  murder  in  the  first  degree. 

AppEAf,  from  Franklin  Circuit  Court. 
Maurn,  for  the  State. 
C  Jones  for  appellant. 


620 


DKUNKENXESK. 


State  V.  Cross. 


Napton,  J.,  (li'livered  the  opinion  of  the  court. 

[After  deciding  that  the  judgment  must  be  reversed  because  the 
record  does  not  show  tl'.at  I'^e  prisoner  was  present  in  court  when  ihc 
verdict  ■"•as  rendei'cd.] 

The  following  instruction  was  aslced  upon  tliis  trial  by  the  counsel  for 
the  ]>ri9oner,  and  refused:  "  That  before  the  jury  can  find  the  prisonci- 
guilty  of  mirder  in  tlie  first  degree  they  nuist  ascertain  as  a  matter  of 
fact  that  the  accused  was  in  such  a  state  of  mind  as  to  do  the  act  of 
killing  wilfully,  deliberately,  premeditated ly  and  maliciousl}',  and  an} 
fact  that  will  shed  light  upon  the  condition  of  his  mind,  at  the  time 
of  the  killing,  may  be  looked  into  by  them,  and  constitute  legitimate 
proof  for  their  consideration;  and  among  other  facts  any  state  of 
dnuikenness  being  proven,  it  is  a  legitimate  subject  of  Inquiry  as  to 
what  influence  such  intoxication  might  hjt  ,'e  had  upon  the  mind  of  the 
prisoner  in  the  perpetration  of  the  deed,  and  whether  he  was  not,  at  the 
time  of  the  killing,  in  such  a  state  of  mind,  by  reason  of  Intoxication, 
as  would  be  unfavorable  to  the  commission  of  a  crime  requiring  delib- 
eration and  premeditation."  The  court  gave  the  following  instruction 
on  this  branch  of  the  case:  "•The  jury  are  further  instructed  that  if 
the  circumstances  attending  the  killing,  the  weapon  used,  the  nature  and 
extent  of  the  injury  inflicted,  and  the  amount  of  violence  used,  with 
all  the  other  evidence  in  the  case,  satisfy  them  that  Cross  intended  to 
kill  McDonald,  then  the  circumstance  of  his  being  drunk  at  the  time  is 
not  sufficient  to  repel  the  inference  of  malice  and  premeditation  arising 
out  of  such  evidence,  or  to  mitigate  the  offence  from  murder  in  the  first 
degree  to  murder  in  the  second  degree,  or  any  ethci-  less  offence." 

The  old  and  well  established  maxim  of  the  common  law  is  thot 
drunkenness  does  not  mitigate  a  crime  in  an}'  respect ;  on  the  contrary, 
that  it  rather  is  an  aggravation.  Insanity  is  a  full  and  complete  defence 
to  a  criminal  charge ;  yet  drunkenness  is  a  species  of  insanity,  and  is 
attended  with  a  temporary  loss  of  reason  and  power  of  self-control. 
But  drunkenness  is  voluntary ;  it  is  brought  about  by  the  act  of  the 
l)arty,  whilst  insanity  is  an  infliction  of  Providence,  for  which  the  party 
affected  is  not  responsible.  This  is  understood  to  be  the  basis  of  the 
distinction  which  the  law  has  made  between  these  two  kinds  of  dementia, 
and  is  the  principal  reason  why  the  rules  of  law  have  been  settled  so  as 
to  allow  the  one  madness  to  constitute  an  exemption  from  legal  respon- 
sibility, but  deny  to  the  other  any  mitigating  qualities  whatever.  There 
are  also  obvious  reasons  of  public  policy  why  the  law  should  be  so  es- 
tablished. 


DRUNKENNESS   NO    DEFENCE. 


621 


The  Cases  Reviewed. 


icanso  the 
when  ihc 

oiinsel  for 
e  pnsonei- 
matter  of 
tlie  act  of 
)  and  an} 
t  tlie  time 
legitimate 

state  of 
liry  as  to 
k1  of  the 
ot,  at  the 
)xication, 
ing  delib- 
struction 
d  that  if 
iture  and 
st'd,  with 
ended  to 
le  time  is 
n  arising 
J  tlie  first 
•e." 

'  is  thflt 
sontrar}-, 

defence 
\',  and  is 
•control, 
t  of  the 
lie  party 
s  of  the 

ed  so  as 

respoii- 

Therc 

e  so  es- 


Some  efforts  have  been  made,  of  comparativel)-  recent  date  —  for  the 
maxim  we  li:ive  (juoted  is  as  old  as  the  common  law  itself —  to  (nuilify 
or  to  get  rid  of  this  ancient  rule.  Some  very  authoritative  books  on 
criminal  law  and  some  courts  of  great  respcctalnlity,  both  in  England 
and  this  country,  have  suggested  interpretations  and  modifications  of 
the  axiom,  tending,  as  we  think,  to  subvert  the  principle  itself  for  all 
practical  purposes.  Russell,  in  his  work  on  Crimes,  says:  "Though 
voluntary  drunkenness  cannot  excuse  from  the  commission  of  a  crime, 
yet  when,  as  upon  a  charge  of  murder,  the  material  question  is,  whether 
an  act  was  premeditated  or  done  only  with  sudden  heat  and  impulse,  the 
fact  of  the  party  being  intoxicated  has  been  h olden  to  be  a  circumstance 
proper  to  be  taken  into  consideration."  The  authority  for  this  sugges- 
tion of  Russell  is  the  ease  of  Bex  v.  Grindle>/,  decided  at  the  Worces- 
ter assizes  in  181!) ;  but  in  Iie.v  v.  Carroll,^  Paukk,  B.,  in  the  presence 
of  LiTTLEDALE,  J.,  Said  :   "  That  case  was  not  law." 

In  this  country  the  subject  is  very  ably  discussed  ])v  Judge  Ti  i;i,f.y, 
of  the  Supreme  Court  of  Tennessee,  in  the  case  of  Pirtle  v.  Slate,- 
and  by  Judge  Wakdlaw,  of  South  Carolina,  in  the  case  of  State 
V.  McCantH.^  The  authorities  on  both  sides  of  the  question  are 
pretty  generally  referred  to  and  reviewed  in  each  of  these  cases,  yet 
the  results  to  which  the  two  courts  arrived  were  quite  the  opposite 
of  each  other.  It  is  true  the  Supreme  Court  of  Tennessee  declare 
their  maintenance  of  the  ancient  doctrine  of  the  common  law  in  all  its 
original  severity,  and  repudiate  quite  distinctly  the  case  of  Eex  v. 
Orindley,  and  the  dktum  of  Russell,  based  thereon ;  but  by  a  process 
of  ingenious  reasoning  the  court  seem  to  arrive  at  a  conclusion  indi- 
rectly overturning  the  principles  and  rules  they  start  out  with,  main- 
taining and  leading  practically  to  the  doctrine  advanced  hj  Russell  and 
the  decision  of  Justice  Hoi.no'i-D  in  Rex  v.  Grindley.  It  is  not  perceived 
how  drunkenness  can  be  held  to  be  a  circumstance  proper  to  be  con- 
sidered by  a  Jury  in  determining  the  question  of  premeditation  and 
malice,  and  at  the  same  time  be  considered  as  no  mitigation  of  the 
crime.  It  is  said  that  there  is  no  inconsistenc}-  in  the  two  doctrines, 
because  the  fact  of  drunkenness  may  show  that  the  crime  charged  was 
not  committed.  If  the  crime  charged  was  not  committed,  then  it  is 
immaterial  whether  the  defendant  was  drunk  or  sol)er;  he  is,  in  either 
event,  entitled  tc  an  acquittal.  But  if  all  the  circumstances  in  the  case, 
except  drunkenness,  show  that  the  crime  charged  was  committed,  and 


!  7  C.  &  p.  14.5. 


9  Humph.  6t::', 


»  1  Spear,  392. 


u22 


DRUNKENNESS. 


State  V.  Cross. 


drunkenness  alone  is  the  cireurastanee  to  show  that  by  reason  of  its  in- 
tei'vention  among  the  circumstances  of  the  case,  the  crime  was  different 
from  what  it  would  have  been  in  the  absence  of  this  circumstance,  then 
it  is  manifest  that  this  circumstance  alone  has  produced  the  mitigation, 
and  the  old  principle  of  the  conmion  law  which  pronounces  drunken- 
ness to  be  no  mitigation  is  overturned. 

In  the  case  of  Pirtle  it  is  concedi'd  in  the  opinion  that,  except  in  re- 
lation to  the  two  grades  of  homicide  distinguished  in  their  code  as  they 
are  in  ours  as  murder  in  the  first  and  second  degrees,  drunkenness 
would  not  be  a  legitimate  subject  of  inquiry  ;  that  upon  the  question  of 
provocation  it  sliould  have  no  weight,  but  on  the  question  of  premedi- 
tation, it  should.  It  is  singular  tliat  in  Hex  v.  Thomas,^  a  British 
judge,  Baron  Pakkk,  took  quite  the  opposite  position.  He  is  reported 
to  have  said  to  the  jury:  "  I  must  also  tell  you  that  if  a  man  makes 
himself  voluntarily  drunk,  this  is  no  excuse  for  any  crime  he  may  com- 
mit when  he  is  so;  he  must  take  the  consequences  of  his  own  vohintary 
act,  or  most  crimes  would  go  unpunislied.  But  dru'ikenness  m;iy  be 
taken  into  consideration  in  cases  wlien  wliat  tlie  law  deems  sufficient 
provocation  has  been  given,  because  the  question  is,  in  such  cases, 
wliether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited 
by  the  previous  provocation,  and  that  passion  is  more  easily  excitable 
in  a  person  when  in  a  state  of  intoxication  than  when  he  is  sober." 
The  Supreme  Court  of  South  Carolina,  in  commenting  on  this  charge  of 
Baron  Pakkk,  admit  its  propriety,  if  it  is  to  be  understood  as  maintain- 
ing that  he  who  is  in  a  state  of  voluntary  intoxication  is  subject  to  the 
same  rule  of  conduct  and  the  same  legal  influences  as  the  sober  man, 
and  that  when  a  provocation  is  received  which,  if  acted  on  instantly, 
would  mitigate  the  offences  of  a  sober  man,  and  the  question  in  the 
case  of  the  di^inken  man  is,  whether  that  provocation  was  in  truth 
acted  upon,  evidence  of  intoxication  may  be  considered  in  deciding 
that  question.  But  the  remarks  of  Baron  Pauke,  thus  construed, 
would  clearly  be  unfavorable  to  the  defence,  and  would  substantially 
make  intoxication  an  aggravation  rather  than  a  mitigation. 

The  case  put  by  Judge  Tlki.ky  to  illustrate  his  views,  and  probably 
as  strong  a  case  as  could  be  imagined,  is  where  the  crime  charged  is 
murder  by  poison,  and  the  question  is,  whether  the  poison  was  admin- 
istered intentionally  or  by  mistake.  The  facts  supposed  are  that  two 
medicines  are  on  the  table  —  the  one  poison  and  the  other  not  —  and 


1  7C.  &P.  817. 


DRUNKENNESS    DOES    NOT    PALLIATE    CHIME. 


^^^23 


state  V.  Cross. 


then 


the  poison  is  administered.  The  inquiry  made  is,  whether  the  faot  that 
the  man  who  administered  the  poison  was  drunk,  is  not  evidence  to  show 
the  probability  of  mistake.  The  answer  is  very  easy  if  we  adhere  to  the 
doctrine  that  drunkenness  does  not  palliate  or  mitigate  a  crime.  A 
mistake  or  accident  may  happen  to  a  man,  whether  drunk  or  sober,  and 
if  they  are  more  likely  to  occur  when  in  the  former  predicament,  he  is 
not  ciititled  to  any  advantage  over  the  sober  man  by  reason  of  this. 
If  he  is,  the  maxim  of  the  common  law  is  worth'oss,  or  is  so  easily  evaded 
as  to  furnish  no  practical  guide  in  the  adminislnitiou  of  justice  ;  there 
is  one  rule  for  the  sober  man  .and  another  for  the  drunken  man. 

According  to  our  understanding  of  the  law,  the  instruction  asked  l)y 
the  defendant  in  this  ca-^e  was  properly  refuse.l ;  such  instrnctions,  we 
think,  would  subvert  ancient  and  well  settled  princii)les,  and  proclaim 
viitual  impunity  to  the  most  enormous  crimes.  It  wonld  only  be  nec- 
essary for  a  man  to  dethrone  his  reason  by  intoxicating  drafts re- 
duce himself  to  a  state  of  brutal  insensibility  to  the  value  of  human  life, 
and  then  take  shelter  under  the  plea  of  drunkenness  for  protection 
against  the  consequences  of  his  acts.  If  a  man  can  thus  divest  himself 
of  his  responsibility  as  a  rational  creature  and  then  perpetrate  deeds  of 
violence  with  a  consciousness  that  his  actions  are  to  be  jndged  l)y  the 
irr.ational  condition  to  which  he  has  voluntarily  reduced  himself,  society 
would  not  be  safe.  To  look  for  deliberation  and  forethought  in  a  man 
maddened  by  intoxication  is  vain,  for  drunkenness  has  deprived  him  of 
the  deliberating  faculties  to  a  greater  or  less  extent ;  and  if  this  depri- 
vation is  to  relieve  him  of  all  responsibility  or  to  diminish  it,  the  great 
majority  of  crimes  committed  will  go  unpunished.  This,  however,  is 
not  the  doctrine  of  the  common  law ;  and  to  its  maxims,  based  as  they 
obviously  are  upon  true  wisdom  and  sound  policy,  we  must  adhere. 

The  instruction  given  by  the  Circuit  Court  was,  in  my  opinion,  sub- 
stantially correct.  It  might,  and  perhaps  ought  to  be  so  modified  as  to 
inclnde,  among  the  circumstances  specifically  alluded  to,  some  of  those 
favorable  to  the  prisoner  in  connection  with  those  already  stated  of  an 
unfavorable  bearing,  such  as  the  previous  relations  of  the  parties,  the 
previous  and  subsequent  conversations,  etc. 

The  judgment  will  be  reversed  and  the  cause  remanded. 
Richardson.  J.,  dissented. 


624 


DRUNKENNESS. 


People  V.  Uogcrs. 


INTOXICATION  —  RELEVANT  ON  QUESTION  OF  PREMEDITATION, 
ETC.  — INSANITY  RESULTING  FROM  DRUNKENNESS. 

People  v.  Rogers. 


[18N.  Y.  9.] 
In  the  Court  of  Appeals  of  New  York,  September  Term,  1858. 

Hon.  Alexander  S.  Joiinsox,  Chief  Judge, 

"  Geouge  F,  Comstock, 

"  Samuel  L.  Seldex, 

"  IIlHAM  Den'io, 

"  James  J.  Roosevelt,     \  Judges. 

"  Ika  Harris, 

"  Daniel  Pratt, 

'»  TiiERON  R.  Strong, 

1.  Voluntary  Intoxication  is  no  excuse  for  crime. 

Intoxication— Relevant  upon  Deliberation  and  Heat  of  Passion.— Where  the  crime 
was  committed  nftcr  prurocation,  evidence  of  intoxication  is  admissible  on  the  ques- 
tion whether  it  was  done  in  tlie  heat  of  passion,  and  wliether  threatening  words  were 
uttered  by  the  prisoner  with  deliberate  purpose  or  otherwise. 

3.  Insanity  Besultingr  from  Intoxication.—  Insanity  resulting  from  habits  of  intemper- 
ance, and  not  directly  from  the  immediate  influence  of  intoxicating  liquors,  may 
amount  to  a  defence  to  crime. 

Writ  of  Error  to  the  Supreme  Court  of  the  First  District  to  review 
a  judgment  of  that  court  in  favor  of  James  Rogers,  the  present  defend- 
ant in  error. 

Rogers  was  indicted  in  the  Court  of  General  Sessions  of  the  Peace  of 
the  city  and  county  of  New  York,  for  tlie  murder  of  John  Swanston,  in 
that  citj',  on  the  17th  of  October,  1857.  Tlie  trial  took  place  in  that 
court  on  the  12th  November  of  .that  year,  before  A.  D.  Russell,  city 
judge.  It  appeared  that  Swanston,  the  deceased,  and  his  wife  were 
returning  from  market  about  ten  o'clock  in  the  evening,  when  they  were 
met  by  tlie  -prisoner  and  two  other  young  men,  with  whom  they  were 
unacquainted,  at  the  corner  of  Twenty-first  Street  and  the  Tenth  Avenue. 
The  prisoner  rudely  ran  against  the  wife  of  the  deceased,  pushing  her 
upon  her  husband.  According  to  the  testimony'  of  the  wife,  the  pris- 
oner, at  the  time,  asked  the  deceased  what  he  was  saying,  and  the  latter 
answered,  "  What  is  that  to  you?  "  One  of  the  prisoner's  companions 
said  to  him:  "  They  are  not  talking  to  you."  At  this  time  the  three 
had  passed  the  deceased  and  his  wife.  They  then  turned  about  and 
came  back  towards  the  deceased,  who  turned  his  head  towards  them, 


I'KOl'LE    V.  UOGEIiS. 


r»2:) 


Facts    of  the  Case. 


ATION, 


'.858. 


re  tho  crime 
II  the  ques- 
words  were 

f  intemper- 
luors,  may 


o  review 
;  defend- 

Peace  of 

iiston,  ill 

in  th:it 

KLL,  city 

ife  were 

lej'  were 

icy  were 

Avenue. 

ling  her 

tlie  pris- 

le  latter 

panions 

le  three 

out  and 

s  tiiem, 


and  the  prisoner,  who  had  been  taken  hold  of  by  the  other  two,  broke 
from  them,  came  up  to  the  deceased,  stabbed  him  in  the  breast,  and 
then  ran  up  the  avenue.  The  wound  was  about  three  inches  dcej). 
and  penetrated  the  artery  of  the  heart,  and  the  deceased  died  imme- 
iliately.  The  weapon  was  not  found.  Tlie  surgeon  testified  that  the 
wound  appeared  to  have  been  made  by  a  sharp  instrument,  which  he 
judged  was  a  large  dirk-knife.  Other  evidence  upon  that  point  tended 
to  show  that  sh(jrtly  before,  and  on  the  same  evening,  the  prisoner  had 
in  his  pocket  a  jack-knife.  The  prosecution  proved  the  'prisoner's  con- 
fession that  it  was  a  common  pocket-knife,  and  that  he  had  thrown  it 
away  when  he  heard  that  the  man  he  had  struck  was  dead;  and  his 
mother  and  sister  swore  that  he  carried  a  small  pocket-knife,  with  two 
blades,  and  they  did  not  know  of  his  iiaving  an}'  otiier  knife.  The 
comnanions  of  the  prisoner  and  another  person,  all  called  by  the  prose- 
cution, gave  testimony  as  to  the  circumstances  of  tlie  iK^nicide ;  one,  a 
man  who  lived  near  the  spot,  saw  the  affair  from  his  window.  He  saw 
the  motion  of  the  prisoner  as  though  striking  the  deceased,  who  went  a 
few  steps  and  then  fell.  He  saw  no  other  striking.  The  two  young 
men  who  were  with  the  prisoner  agreed  in  testifying  that  the  affair  com- 
menced by  tlie  ]irisoner  running,  or,  as  one  of  them  said,  staggering, 
against  the  deceased's  wife  ;  and  they  united  in  saying  that  tlie  deceased 
then  struck  at  the  prisoner  without  hitting  him.  One  of  tliein  said  that 
they,  the  two  witnesses,  then  took  the  piisoner  away,  but  he  broke  from 
them,  came  to  the  deceased  and  struck  tlie  fatal  blow;  the  other  repre- 
sented that  there  were  mutual  and  successive  blows  between  the  de- 
ceased and  the  prisoner  after  they  had  let  the  prisoner  go,  and  that  the 
latter  said  he  wanted  to  fight.  They  both  swore  that  the  prisoner  hatl 
drank  beer  with  them  twice  during  the  evening ;  that  he  was  intoxi- 
cated, and  that  they  were  trying  to  get  him  home.  The  prisoner  went 
to  the  house  of  his  mother,  which  was  his  home,  immediately  after  tlie 
homicide ;  and  she  and  his  sister  testified  that  he  was  then  so  much  in- 
toxicated th*\t  he  could  not  walk,  but  fell  upon  the  floor,  and  that  tiiey 
had  to  undress  him  and  put  him  to  bed.  The  testimony  as  to  intoxica- 
tion was  given  without  any  objection  on  the  part  of  the  public  prosecu- 
tor, and  a  portion  of  it  on  his  examination. 

Two  exceptions  were  taken  to  rulings  of  the  judge  upon  the  recep- 
tion of  testimony.  The  first  arose  as  follows :  The  prosecution  proved, 
by  a  boy  of  the  name  of  Scott,  that  a  few  minutes  before  the  homicide 
the  prisoner  and  his  two  companions  passed  by  where  the  witness  was 
standing  in  the  door  of  a  house  eating  an  apple.  The  prisoner  asked 
him  for  the  apple,  and  then  tried  to  get  something  out  of  his  pocket, 
40 


626 


DUUNKEXNESS. 


People  V.  Rogers. 


and  the  witness  saw  that  he  had  a  Jaek-knife.  There  was  an  objection 
to  this  evidence  by  the  prisoner's  counsel  as  immaterial,  but  the  objec- 
tion was  overruled,  and  the  counsel  excepted.  The  confession  of  the 
l)risoner,  wliit-h  has  been  mentioned,  respecting  the  knife,  was  proved 
by  a  New  York  policeman,  who  h:id  him  in  custody  and  who  brought 
him  from  New  Brunswick  in  New  Jersey,  where  he  received  liim  from  a 
constable  at  the  jail,  to  New  York,  without  process.  The  admission  in 
substance  was  that  he,  the  prisoner,  was  di'uiik,  and  killed  the  deceased 
with  a  common  pocket-knife.  The  objection  to  this  testimony  conceded 
in  terms  that  no  inducement  had  been  held  out  to  the  i»risoner,  but  it 
assumed  that  no  admission  made  by  an  accused  person,  when  under 
arrest,  could  be  used  against  him.  The  pi'isoner's  counsel  excepted  to 
the  decision  overruling  tiie  objection.  The  bill  of  exceptions  states 
that  there  Avas  other  testimony  on  the  part  of  the  defendant  not  set 
forth  in  it.  In  the  charge  to  the  jury,  the  judge  stated  the  definition 
of  murder  and  of  the  first  and  third  degrees  of  manslaughter  as  con- 
tained in  the  Revised  Statutes,  with  some  remarks  upon  the  law  of  the 
case.  lie  stated  that  if  the  prisoner  had  tin  i  to  think,  and  did  intend 
to  kill,  it  was  murder,  though  he  conceived  the  intent  but  on  the  instant 
before  the  blow  was  struck  ;  but  if  tliey  were  satisfied  that  the  mortal 
blow  was  struck  in  the  heat  of  passion,  without  a  design  to  effect  death, 
the  offence  would  be  manslaughter  in  the  third  degree.  There  is  a 
general  cxcei)tion  to  the  charge.  The  remainder  of  tlie  bill  of  excep- 
tions, ui)on  which  the  most  material  of  the  questions  in  the  case  arise, 
is  as  follows:  "The  counsel  for  the  prisoner  requested  the  court  to 
charge  that,  if  it  appeared  by  the  evidence  that  the  condition  of  the 
prisoner  from  intoxication  was  such  as  to  show  that  there  was  no  inten- 
tion or  motive,  by  reason  of  drunkenness,  to  commit  the  crime  of  miu-- 
der,  that  the  jury  should  find  a  verdict  of  manslaughter.  But  the 
court  refused  to  instruct  the  jury  in  the  words  of  the  proposition,  but 
charged  that,  under  the  old  law,  intoxication  wav  .on  aggravation  of 
crime;  but  that  intoxication  never  excused  ciIu  .  .oU;":  it  was  of  the 
degree  to  deprive  the  offender  of  his  reasoning  cr.  ;iiries;  to  which  re- 
fusal to  charge,  the  prisoner's  counsel  excepted  " 

The  jury  returned  a  verdict  of  guilty  of  murdei",  ami  tlie  court  sen- 
tenced the  prisoner  to  be  executed. 

A  writ  of  error  was  allowed,  with  a  stay  of  execution.  The  record, 
with  the  bill  of  exceptions,  was  returned  to  the  Supreme  Court,  where, 
after  argument,  the  judgment  of  the  sessions  was  reversed  and  a  new 
trial  awarded,  upon  which  the  present  writ  of  error  was  brought  on  be- 
half of  the  People. 


PEOPLE   V.  ROGERS. 


627 


AUinissibillty  of  Coufi-sslon. 


John  Graham,  for  the  plaintiffs  in  error. 

E.  W.  Andreics,  for  the  defendant  in  error. 

Dexu),  J.  — I  do  not  perceive  that  there  was  any  valid  ol>jection  to 
the  testimony  of  the  witness  Scott.  The  surgeon  had  testified  that  tlie 
injury  of  which  the  deceased  died  was  an  incised  wound.  The  ol)Ject 
of  the  prosecution  was  to  show  that  it  was  inllicted  by  the  defendant, 
and  to  that  end  it  was  prcjved  that  he  struck  the  deceased  immediately 
before  he  fell  dead  ;  but  the  witness  who  testified  to  this,  did  not  see 
any  weapon.  If  it  could  be  shown  that  the  i)risoner  had  a  knife  or  other 
similar  weapon  about  his  person  at  the  time,  such  proof  wouhl  consider- 
ably advance  the  case  of  the  prosecution  ;  and  it  was  this  fact  which 
Scott  swore  to.  He  saw  the  handle  of  a  knife  in  the  i)risoner's  posses- 
sion, as  the  latter  attempted  to  draw  it  from  his  pocket,  while  on  his 
way  to  the  place  where  the  homicide  took  place,  and  only  a  few  minutes 
before  that  time. 

The  objection  to  the  testimony  of  the  policeman  assumes  tliat  no 
admission  by  a  person  accused  of  crime  to  an  oflicer  who  has  him  in 
custody  can  be  roi  'ived.  It  was  not  pretended  that  any  threats,  prom- 
ises or  other  induninents  to  make  a  confession  had  been  held  out  to 
the  prisoner,  but  the  objection  was  placed  distinctly  upon  the  ground 
first  mentioned.  I  have  looked  carefully  into  all  the  cases  referred  to 
by  the  defendant's  counsel,  in  support  of  that  position,  and  many 
others  and  do  not  find  that  it  has  ever  been  held  tliat  the  single  fact  of 
the  prisoner  being  in  custody  was  sufHcient  to  exclude  his  declarations, 
whether  made  to  the  oflicer  or  to  third  persons.  On  the  contrary,  many 
of  the  cases,  upon  the  competency  of  confessions,  show  that  the  prisoner 
was  in  custody  at  the  time,  and  the  question  generally  has  been  whether 
the  confession  was  voluntary,  or  was  influenced  by  what  was  said  to 
him  by  the  officer  or  by  others.  In  Ward  v.  People,^  the  prisoner  made 
an  admission  while  in  the  custody  of  a  constable  ;  and  a  question  having 
arisen,  whether  it  ought  not  to  be  excluded  in  consequence  of  promises 
of  impunity,  held  out  by  the  prosecutor  before  the  arrest,  the  court  held 
it  admissible,  and  it  was  received.  Commonwealth  v.  Mosler,^  was 
likewise  the  case  of  a  confession  made  by  a  prisoner  while  in  the  cus- 
tody of  a  constable,  and  the  point  made  by  the  defendant  was,  that  a 
caution  should  have  been  given,  such  as  is  required  from  examining 
magistrates ;  but  the  court  held  it  unnecessary,  and  decided  that  the 
evidence  was  competent.  Hex  v.  Richards,^  was  also  the  case  of 
an  admission  made  to  a  constable  while  hc>lding  the  prisoner  in  custody, 


1  3  Ilili.  395. 


■•I  4  Pa.  St.  264. 


3  5  0.  &  P.,  318. 


628 


nnUNKEXNESS. 


IV'oplc  r.  Rogers. 


whifli  was  held  to  be  competent,  ii«)  inducement  having  been  held  out  at 
the  time.     It  is  very  plain  tliat  tliis  exception  cannot  be  sustained. 

The  principal  exception  to  the  Judu^e's  charge  wliich  is  now  relied  on, 
relates  to  the  consideration  which  should  be  given  to  the  i)roof  that  the 
j)risonerwa3  intoxicati'd  at  the  time  of  the  homicide.  Ti\e  commission 
of  crime  is  so  (^ftcn  the  attendant  upon  and  the  consequence  of  drunk- 
ciujcss,  that  wo  siiould  natur:illy  expect  the  law  concerning  it  to  bo  well 
dellned.  Accordingly  we  find  it  laid  down  as  early  as  the  reign  of 
Edward  VI.,  l')IH,  that  "  if  a  person  that  is  drunk  kills  another,  this 
shall  be  felony,  and  he  shall  be  hanged  for  it ;  and  3'et  he  did  it  through 
iirnorance,  for  when  lie  was  drunk  he  had  no  understanding  nor  memorv  ; 
but  inasmuch  as  that  ignorance  was  occasioned  by  his  own  act  and 
folly,  and  he  might  have  avoided  it,  he  shall  not  be  i)rivileged  thereby."  ' 
The  same  doctrine  is  laid  down  by  Coke  in  the  Institutes,  where  he  calls 
a,  drunkard  voluntarious  lUvmon,  and  declares  that  ''whatever  hurt  or 
ill  he  docth,  his  driuikenness  dotli  aggravate  it."  -  So  in  his  reports  it 
is  stated  that  "although  he  who  is  drunk  is  for  the  time  ?*ou  (om^ios 
mentis,  yet  his  drunkenness  does  not  extenuate  his  act  or  offence,  nor 
.'urn  to  his  avail;  but  it  is  a  great  offence  in  itself,  and  therefore 
aggravates  his  offence,  and  doth  not  derogate  from  the  act  which  he  did 
<hiring  tliat  time  ;  and  that  as  well  in  cases  touching  his  life,  his  lands, 
his  g(;ods,  or  any  other  thing  that  concerns  him."  ^  Lord  Bacon,  in  his 
"  Ma:iiii;3  ulthe  Law,"  dedicated  to  Queen  Elizabeth,  asserts  the  doctrine 
thus:  "  If  a  madman  commit  a  felony,  he  shall  not  lose  his  life  for  it, 
because  his  inhnuity  came  by  the  act  of  God;  but  if  a  drunken  man 
commit  a  felony,  'le  shall  not  be  excused,  because  the  imperfection  came 
by  his  own  defauli."  '  And  that  great  and  humane  judge,  Sir  Mattiikw 
IIai-k,  in  his  "•History  of  the  Pleas  of  the  Crown,"  written  nearly 
two  hundred  3 ears  ago,  does  not  countenance  any  relaxation  of  the 
rule.  "  The  third  kind  of  dementin,"  he  says,  "  is  that  which  is  (Jcmen- 
tia  affectata,  namely,  driuikenness.  The  vice  doth  deprive  men  of  the 
use  of  reason,  and  puts  many  men  into  a  perfect  but  temporary  frenz}' ; 
and,  therefore,  according  to  some  civilians,  such  a  person  committing 
homicide  shall  not  be  punished  simply  for  the  crime  of  homicide,  but 
shall  suffer  for  his  drunkenness,  answerable  to  the  nature  of  the  crime 
occasioned  thereby,  so  that  yet  the  primal  cause  of  the  punishment  is 
rather  the  drunkenness  than  the  crime  committed  in  it ;  but  b>i  the  laics 
of  England  such  a  person  shall  have  no  privilege  l\v  his  voluntarily 


1  Plowden,  li). 
-  3  Coke,  40. 


3  Beverley's  Case,  4  Co,  125  a. 
♦  Uule  5. 


DRrNKKNNESS. 


(121) 


The  Kni^lish  ("asus  Ueviowcd. 


but 


contracted  madness,  but  sliall  have  the  same  judgment  as  if  he  were  in 
his  right  senses."     He  states  two  execplions  to  tlie  nde,  one  wlicre  the 
intoxication  is  witliout  fault  on  iiis  part,  as  where  it  is  caused  by  drugs 
administered  by  an  unskilful  physician,  and  the  other,    where  inchd- 
gence  in  habits  of  intemprrance  has  produce*'  permanent  mental  dis- 
ease, which  he  calls  '■'fixed  frenzy."  '     Coming  .lown  to  uiore  modern 
limes,  we  lind  the  principle  insisted  upon  by  the  enlightened  Sir  William 
Blackstone.     "The  law  of  England,"  he  says,  "  considering  how  easy 
it  is  to  contract  this  excuse,  and  how  weak  an  excuse  it  is  (though 
real),  will  not  suffer  any  man  thus  to  privilege  one  crime  by  anotlier."  - 
A  few  recent  cases  in  the  English  courts  will  show  the  consistency  with 
which  the  rule  has  been  followed  down  to  our  own  times.     In  Barrow's 
Case,  •"'  the  prisoner  was  indicted  for  rape,  and   urged  that  he   was  in 
liquor.     IIolhoyd,  J.,  addressed  the  jury  as  follows :  "  It  is  a  maxim  in 
the  law  if  a  man  gets  himself  intoxicated,  he  is  answerable  to  the  conse- 
quences, and  is  not  excusable  on  account  of  an}'  crime  he  may  commit 
when  infuriated  by  liquor,  provided  he  was  previously  in  .i  lit  state  of 
reason  to  know  right  from  wrong.     If,  indeed,  tlie  infuriated  state  at 
which  he  arrives  should  continue  and  become  a  lasting  malady,  then  he 
is  not  answerable."     A  similar  charge  was  given  to  the  jury  in  the  next 
ease  in  the  same  book,  where  drunkenness  was  urged  upon  the  trial  of 
an  indictment  for  burglary.     Patrick  Carroll  was  tried  in  LSoo,  at  the 
Central  Criminal  Court,  before  a  judge  of  the  King's  Bench,  and  a  judge 
of  the   Common  Pleas,  for  the   murder  of  Elizabeth  Browning.      It 
appeared  that  shortly  before  the  homicide  the  prisoner  was  very  drunk. 
His  counsel,  though  he  admitted  that  drunkenness  could  not  excuse  from 
the  commission  of  the  crime,  yet  submitted  that  in  a  charge  for  murder, 
the  material  question  being  whether  the  act  was  premeditated  or  done 
with  only  sudden  heat  and  impulse,  the  fact  of  the  party  being  intoxi- 
cated, was  a  proper  circumstance  to  be  taken  into  consideration,  and  he 
referred  to  a  case  before  IIolkoyb,  J.,''  where  that  doctrine  was  laid 
down.     Pakke,  J.,  in  summing  up,  said:  "  Iliglily  as  I  respect  that  late 
excellent  judge,  I  differ  from  him,  and  my  brother  Littlkuale  (the 
associate)  agrees  with  me.     He  once  acted  on  that  case,  but  afterwards 
retracted  his  opinion,  and  there  is  no  doubt  that  that  case  is  not  law.     i 
think  that  there  would  be  no  safety  for  human  life  if  it  were  considered 
as  law."     The  prisoner  was  convicted  and  executed. ^     It  would  be 
easy  to  multiply  citations  of  modern  cases  upon  this  doctrine ;  but  it  is 


1  1  Hale,  32. 
5  4  Com.  26. 
3  Lewln  C.  C.  75,  A.  D.  1823. 


*  Reported  in  2  Russ.  on  Crimes,  8   (Bex 
«'.  Grindley). 
!•  7  C.  *  P.  145. 


I).')!) 


DIMNKKNNKSs. 


I'f(>lili'    ('.   KouiTs, 


unnciesaary,  us  ihcy  jill  ii^rcc  ii|)()n  tho  nmin  proposition,  iiiuncly,  that 
mental  iilit'iuition  procUicod  by  driiikiiifj;  iiit<)xi(Mtin«5    liiiiKji-  fiiinishcs 
no  iinniuiiity  for  crime.     Hex  v.  Meakin,^  and  Rex  v.  ThoiuoN,^  may 
he   mciiliotied ;    and    in   tliia   country,    United   Slates   v.    Dreir,'-^   and 
United  iSl(  I  ten  \.  MeG'lue,'^  will  he  found  to  maintain  the  principle  upon 
the  authority  of  Judge  Stouy  and  Judge  Ciktis,  of  the  Supreme  Court 
of  the  United  States.     These  last  two  cases  are  interesting,  not  only  for 
stating  the  general  principle,  but  for  conlirniing  the  distinction  laid 
down  so  long  ago  by  Sir  Matthew  IIai.e,  that  where  mental  disease,  or 
as  he  terms  it,  a  "■  fixed  frenzy,"  is  shown  to  be  the  result  of  drunken- 
ness, it  is  entitled  to  the  same  consideration  as  insanity  arising  from  any 
Other  cause.     The  first  of  them  was  a  case  of  delirium  tre)nen,s,  and 
Judge  Stoky  directed  an  acipiittal   on  that  account.     In  the  other  the 
evidence  left  it  doubtful  whether  the  furious  madness  e|fliil)itcd  by  the 
prisoner  was  the  result  of  the  present  intoxication,  or  of  delirium  super- 
vening upon  long  habits  of  indulgence.     This  state  of  the  evidence  led 
Judge   CuKTis  to  state  the  rule  and  exception  with   great  force  and 
clearness.     In  this  State  the  cases  of  the  People  v.  Ilammill  and  the 
People  V.  Robinsun,  reported  in  the  second  volume  of  Judge  Pakkku's 
reports  •''  show  the  consistencj'  with  which  the  doctrine  has  been  adhered 
to  in  our  criminal  courts  and  in  the  Supreme  Court.     The  opinion  in 
the  last  case  contains   a  reference    to  several  authorities  to  the  same 
effect  in  the  other  States  of  tiie  Union.     Where  a  principle  in  law  is 
found  to  be  well  established  by  a  series  of  authentic  precedents,  and  es- 
pecially where,  as  in  this  case,  there  is  no  conflict  of  authority,  it  is 
unnecessary  for  the  judges  to  vindicate  its  wisdom  or  policy.     It  will, 
moreover,  occur  to  every  mind  that  such  a  principle  is  absolutel}'  essen- 
tial to  the  protection  of  life  and  property.     In  the  forum  of  conscience 
there  is  no  doubt  considerable  difference  between  a  murder  deliberately 
planned  and  executed  b}'  a  person  of  unclouded  intellect,  and  the  reck- 
less taking  of  life  by  one  infuriated  by  intoxication  ;  but  human  laws  are 
based  upon  considerations  of  policy,  and  look  rather  to  the  maintenance 
of  personal  security  and  social  order,  than  to  an  accurate  discrimination 
as  to  the  moral  qualities  of  individual  conduct.     But  there  is,  in  truth, 
no  injustice  in  holding  a  person  responsible  for  liis  acts  committed  in  a 
state  of  voluntary  intoxication.     It  is  a  duty  which  every  one  owes  to 
his  fellow-men  and  to  society,  to  say  nothing  of  more  solemn  obligations, 
to  preserve,  so  far  as  it  lies  in  his  own  power,  the  inestimable  gift  of 


»  7  O.  *  P.  297. 

2  7  C.  &  p.  817. 

3  5  Mason,  28. 


*  1  Curtis  C.  0.  1. 
^  pp.  223,  23S. 


i)i:rMvi:NNEis.s. 


031 


V»'li.  II  K'flcvant  on  Crimlniil  Trial. 


rea?>()ii.  If  it  is  piTverteil  or  destroyt'd  hy  fixed  tlisoase,  lhoii<;li  brouf^flit 
on  by  his  own  vices,  the  law  holds  him  not  accountalile.  But  if  by  a 
voluntary  act  he  temporarily  casts  off  the  restraints  of  reason  and  con- 
science, no  wrong  is  done  him  if  he  is  considered  answerable  for  any  in- 
jury which  in  that  state  he  may  do  to  others  or  to  societj'. 

Ik'f(jre  proceeding  to  examine  the  judge's  charge,  it  is  necessary  to 
state  one  other  principle  connected  with  the  subject  of  intoxication.     I 
am  of  the  opinion  tli  t,  in  cases  of  homicide,  the  fact  that  the  accused 
was  under  the  intlrer.je  of  liiiuor,  may  be  given  in  evidence  in  his  l)e- 
half.     The  effect  vhich  the  evidence  ougiit  to  iiave  upon  the  verdict  will 
depend  upon  the  other  circumstances  of  the  case.     Thus,  in  Hex  v.  Car- 
roll, which  was  a  case  of  murder  by  stabbing,  there  was  not,  as  the  court 
considered,  any  provocation  on  the  part  of  the  deceased,  and  it  was  held 
that  the  circumstance  that  the  prisoner  was  intoxicated  was  not  at  all  ma- 
terial to  be  considered.     Rex  v.  3Ie<ikin  was  an  indictment  for  stabbing 
with  a  fork,  with  intent  to  murder,  and  it  was  shown  that  the  prisoner 
was  the  worse  for  liquor.     Alukhson,  Earon,  instructed  the  jury  that, 
with  regard  to  the  intention,  drunkenness  might  be  adverted  to  according 
to  the  nature  of  the  instrument  used.     "If,"  he  said,  "  a  man  uses  a 
stick,  you  would  not  infer  a  malicious  intent  so  strongly  against  him,  if 
drunk  when  he  made  an  intemperate  use  of  it,  as  you  would  if  he  had 
used  a  different  kind  of  weapon;  but  where  a  dangerous  instrument  is 
used,  which,  if  used,  must  produce  grievous  bodily  harm,  drunkenness 
can  have  no  effect  upon  the  consideration  of  the  malicious  intent  of  the 
party."     In  Bex  v.  Thomas,  for  malicious  stabbing,  the  [)erson  stabbed 
had  struck  the  prisoner  twice  with  his  fist,  when  the  latter,  being  drunk, 
stabbed  him,  and  the  jury  were  charged  that  drunkenness  might  be  taken 
into  consideration  in  cases  where  what  the  law  deems  sufficient  provoca- 
tion has  been  given,  because  the  (luestion  in  such  cases  is,  whether  the 
fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited  by  the  pre- 
vious provocation  ;  and  that  passion,  it  was  said,  is  more  easily  excitable 
in  a  person  when  in  a  state  of  intoxication  than  when  he  is  sober.     So.  it 
was  added,  where  the  question  is  whetlier  the  words  have  been  uttered 
with  a  deliberate  purpose,  or  are  merely  low  and  idle  expressions,  the 
drunkenness  of  the  person  uttering  them  is  proper  to  be  considered. 
But  if  there  is  really  a  previous  determination  to  resent  a  slight  affront 
in  a  barbarous  manner,  the  state  of  drunkenness  in  which  the  prisoner 
was,  ought  not  to  be  regarded,  for  it  would  furnish  no  excuse." 

It  must  generally  happen,  in  homicides  committed  by  drunken  men, 
that  the  condition  of  the  prisoner  would  explain  or  give  character  to  some 
of  his  language,  or  some  part  of  his  conduct,  and,  therefore,  I  am  of 


682 


DKIJNKEXNEHH. 


]'t'(>|)lt!    I'.    l{»li,'l'IV 


opinion  that  it  woiilil  never  be  corroft  to  excliuU!  the  proof  altogether. 
'J'liiit  it  woiihl  sometimes  be  right  to  advise  the  jnr}'  tliat  it  ouglit  to  have 
no  inlliu'nce  upon  tlie  case,  is,  I  think  clear  from  the  foregoing  author- 
ities. In  a  case  of  lengtiiened  premeditation,  of  lying  in  wait,  or  where 
tlie  death  was  by  poisoning,  or  in  the  case  of  wanton  killing  without  any 
provocation,  sucii  an  instruction  would  plainly  be  proper. 

Assun»ing  the  foregoing  positions  to  be  established,  I  proceed  to  an 
examination  of  the  exceptions  to  the  charge  of  the  judge.  It  is  difll- 
cult  to  know  i)re('iscly  wiiat  was  meant  by  the  request  to  charge  ;  but  I 
think  its  sense  may  be  expressed  thus  —  that  drunkenness  might  exist  to 
such  a  digrec  that  neither  an  intention  to  commit  munler,  nor  a  motive 
for  such  an  act,  could  be  imputed  to  the  prisoner.  It  was,  therefore, 
asked  that  it  siiould  be  left  to  the  jury  to  determine  whether  such  a  de- 
gree of  intoxication  had  been  shown,  and  that  they  should  bo  instructed 
that  if  it  had,  the  prisoner  should  be  found  guilty  of  manslaughter  only. 
We  must  lay  out  of  view,  as  inapplicable,  the  case  of  a  person  who  had 
become  insensible  from  intoxication,  and  was  performing  an  act  unac- 
companied by  volition.  There  was  notliiiiu  in  the  evidence  to  show  that 
the  prisoner's  conduct  was  not  entircl}-  under  the  control  of  his  will,  or 
which  would  render  it  possible  for  the  jury  to  find  that  he  did  not  in- 
tend to  stab  the  deceased  with  his  knife.  'I'ho  mind  and  will  were  no 
doubt  more  or  less  per%erted  by  intoxication,  but  there  was  no  evidence 
tending  to  show  that  they  were  annihilated  or  suspended.  Assuming, 
therefore,  that  the  request  did  not  refer  to  such  a  hypothesis,  the  only 
other  i)ossible  meaning  is,  that  it  supposes  that  the  jury  might  legally 
find  that  the  prisoner  was  so  much  intoxicated  that  he  could  not  be 
guilty  of  murder,  for  the  want  of  the  requisite  intention  and  motive  ;  and 
the  request  was  that  they  might  be  so  instructed.  This  would  be  pre- 
cisely the  same  thing  as  advising  them  that  they  might  acquit  of  murder 
on  account  of  the  i)risoner's  intoxication,  if  they  thought  it  suflicient  in 
degree.  It  has  been  shown  that  this  would  be  opposed  to  a  well  estab- 
lished principle  of  law.  The  judge  was  not  at  liberty  so  to  charge,  and 
the  exception  to  his  refusal  cannot  be  sustained.  What  he  did  charge 
on  the  subject  of  intoxication  was  more  favorable  to  the  prisoner  than  he 
had  a  right  to  claim.  It  implies  that  if  he  was  so  far  intoxicated  as  to 
be  deprived  of  his  reasoning  faculties,  it  was  an  excuse  for  the  crime  of 
murder ;  or,  as  perhaps  it  was  intended  to  state,  that  he  could  not  be 
guilty  of  murder.  The  rule  which  I  have  endeavored  to  explain 
assumes  that  one  may  be  convicted  of  murder  or  any  other  crime,  though 
his  mind  be  reduced  by  drunkenness  to  a  condition  which  would  have 
called  for  an  acquittal,  if  the  obliquity  of  mind  had  arisen  from  any  other 


I'KOI'I.i:    V.   \HHiVMS. 


(;.3n 


('(iiiriirriii^  n|)lnliiii  of  Harris,  J. 


Itogcther. 
It  to  have 
g  autlior- 
or  where 
thout  any 

ced  to  an 
It  is  diffl- 
;e ;  but  I 

t  exist  to 
a  motive 
horcforc, 
ith  a  de- 
lis truftcd 
Iter  only, 
who  had 
act  unac- 
ihow  that 
s  will,  or 
d  not  in- 
were  nn 
evidence 
Sliming, 
tlie  only 
t  legally 
n(jt  hv 
ive ;  and 
be  prc- 
mun'or 
cient  in 
11  ostab- 
•ge,  and 
1  charge 
'than  he 
ed  as  to 
Mime  of 
not  be 
explain 
though 
Id  have 
ly  other 


causf.  Till'  jiKigc  uuglit  ti)  have  charged  that  if  a  man  makes  himself 
voluntarily  drunk,  thai  is  no  excuse  for  any  crime  he  may  commit  while 
he  is  so,  and  that  he  must  take  the  consequences  of  his  own  voluntary 
act.'  Till'  charge,  therefore,  gave  the  prisoner  the  chance  of  an  aeijuittal, 
to  which  he  was  not  entitled ;  l>ut  tliis  was  not  an  error  of  which  he  can 
take  advautagi'. 

The  jiidgiiieiit  of  the  Court  of  Sessions  was  reversed  by  the  Supreme 
Court  on  the  ground,  as  it  appears  from  the  opinion,  that  tlie  judge 
altogether  withdrew  the  attention  of  the  jury  from  the  considera- 
tion of  the  fact  that  the  prisoner  was  intoxicated.  I  do  not  so  under- 
stand the  chaige ;  all  the  evidence  which  was  offered  to  show  the 
prisoner's  condition  in  that  resped,  was  I'cceived  wiihouL  objertion. 
Thejmlge  refused  to  charge  that  it  would  entitle  him  to  be  acquitted  of 
murder,  whatever  the  jury  might  think  of  its  degree.  Upon  the  ques- 
tion whether  it  could  be  taken  into  con^/idcration  to  explain  or  charac- 
terize his  acts,  nothing  appears  to  have  been  said  either  bv  the  counsel  or 
the  judge.  It  does  not  appear  whether  the  whole  charge  is  given,  or 
only  sui'h  parts  as  were  excepted  to.  As  I  do  not  find  any  error  in  the 
portions  which  are  set  forth,  1  am  of  the  opinion  that  the  judgment  of 
the  Sessions  ought  not  to  have  been  reversed  on  the  ground  that  it  is  not 
sufllciently  full  in  other  respects. 

Under  the  act  of  18o5,  courts  of  error  arc  to  order  a  new  trial  when 
they  are  satisfied  that  a  conviction  for  murder  is  against  evidence  or 
law,  or  that  justice  reipures  another  trial.-  In  the  exercise  of  this 
jurisdiction,  I  have  examined  this  case  with  the  attention  wliich  its  im- 
portance to  the  prisoner  and  to  the  public  merits.  It  satisfactorily  ap- 
peared that  the  prisoner,  without  any  provocation  on  the  part  of  the 
dc(!eased,  who  was  a  stranger  to  him,  came  upon  hira  and  stabtied  him  to 
the  heart  with  a  knife.  The  jur}'  have  found,  and  upon  sufflcient  evi- 
dence, as  I  think,  that  the  prisoner  intended  to  kill  the  deceased.  The 
case  is  within  the  principle  of  People  v.  Clark  and  People  v.  Snl- 
livan.'^  Independently  of  the  question  of  intoxication,  already  disposed 
of,  the  evidence  disclosed  a  clear  case  of  murder. 

The  judgment  of  the  Supreme  Court  ought  to  be  reversed,  and  the 
proceedings  remitted  to  that  court,  with  <lirections  to  pronounce  sen- 
tence anew  against  the  prisoner. 

IIarkis,  J.  — That  the  defendant  was  guilty  of  some  crime,  was  con- 
ceded upon  the  trial.  He  had  committed  homicide.  The  act  of  killing 
was  perpetrated  with  a  deadly  weapon.     The  only  question  to  be  de- 


1  Rex  t'.  'rhonia:^,  supra. 


p.  61.!,  sec.  ;•>. 


•^  3  SeH.  385,  396. 


034 


DRUNKENNESS. 


Pc'OpU'   V.  llOglTS. 


termined  by  the  jury  was,  whetluT  the  erinio  was  inurdor  or  inan- 
slaii<>htcr. 

Upon  the  law  applicable  to  this  question,  the  juiy  were  properly 
instructed.  They  were  told  that  if  there  was  an  intent  to  kill,  even 
though  that  intent  was  conceived  but  the  instant  before  the  fatal  blow 
was  struck,  the  vriine  was  murder.  But  if,  on  the  other  hand,  the  blow 
was  struck  in  the  heat  of  passion,  without  a  design  to  effect  death,  the 
crime  was  manslaughter.  The  charge  was  unobjectionable.  The  dis- 
tinction between  the  crime  of  murder  and  that  of  manslaughter  was 
sutliciently  stated.  The  jury  were  matle  to  know  that  it  was  their  duty 
to  convict  the  defendant  of  the  one  offence  or  the  other,  according  as 
they  should  llnd  upon  the  question  of  intent.  If  they  should  find  that 
there  was  an  intent  to  kill,  they  were  to  pi'onounce  the  defendant  guilty 
of  murder.  If  they  should  find  an  absence  of  such  intent,  the}'  were  to 
convict  of  manslaughter  only. 

But  there  was  evidence  to  show  that,  when  he  struck  the  deadly  blow, 
the  defendant  ,vas  intoxicated  ;  and  the  court  was  asked  to  charge  U;^ 
jury  that,  "if  it  appeared  by  the  evidence  that  the  condition  of  the 
prisoner  from  intoxication  was  such  as  to  show  that  there  was  no  inten- 
tion or  motive  by  reason  of  drunkenness,  to  commit  the  '•rime  of 
murder,  the}'  should  convict  him  of  manslaughter."  The  court  refused 
so  to  charge,  but,  ui)on  this  point,  instructed  the  jury  ''  that  intoxica- 
tion never  excused  crime,  unless  it  was  of  such  a  degree  a^  to  deprive 
the  offender  of  his  reasoning  faculties." 

In  the  proposition,  as;  it  was  thus  given  to  the  jur}',  there  was  no  error. 
No  rule  is  more  familiar  than  that  intoxicaticm  is  never  an  excuse  fur 
crime.  There  is  no  judge  who  has  been  engaged  in  the  administration 
of  criminal  law,  who  has  not  had  occasion  to  assert  it.  p]ven  where 
intent  is  a  necessary  ingredient  in  the  crime  charged,  so  long  as  the 
offender  is  callable  of  conceiving  a  design,  lie  will  be  presumed,  in  the 
absence  of  proof  to  the  contrary,  to  have  intended  the  natural  conse- 
quences of  his  own  act.  Thus,  ii'  a  man,  without  nrovocation,  shoot 
another  or  cleave  him  down  with  an  ax,  no  degree  of  intoxication,  sh(nt 
or  that  which  shows  that  he  was  at  the  time  utterl}'  incapable  of  acting 
from  motive,  will  shield  him  from  conviction.  This  wng,  in  substance, 
the  doctrine  which  the  jury  received  from  the  court  iii  this  case.  The 
defendant  had  struck  a  blow  with  a  deadly  weapon,  which  had  resulted 
in  immediate  death.  To  this  act,  the  law,  without  further  proof, 
imputed  guilt}'  design.  If  the  perpetrator  would  escape  the  conse- 
quences of  an  act  thus  committed,  it  was  incumbent  on  him  to  show, 
either  that  he  was  incapable  of  entertaining  such  a  purpose,  or  that  the 


li 


r  Of  man- 

e  properly 
)  kill,  evt'ii 
fatal  blow 
1,  the  blow 
death,  the 
The  dis- 
£-hter  was 
theii-  duty 
;ording  as 
I  find  that 
lant  guilty 
y  were  to 

id\y  blow, 

hargo  i^,j 

on  of  tile 

no  inteii- 

"rime  of 

•t  refused 

intoxioa- 

0  deprive 

no  error, 
ccuse  foi- 
listration 
'u   wliere 
<i^  as  tlie 
d,  in  the 
il  conso- 
n,  sh(jol, 
jn,  short 
if  acting 
bstance, 
se.     The 
resulted 
r  proof, 
3  conse- 
o  show, 
that  the 


DHLNKENXESS. 


c;].")- 


Kc'Ii'vant  on  QiK'>ti(m  of  Di.sifiii. 


act  was  committed  under  provocation.  Jn  respect  to  tlie  latter,  there 
was  nothing  said  by  tin;  court,  n(n-  any  request  to  charge.  Had  it  been 
contended  that  the  blow  was  struck  in  the  heat  of  passion,  it  mighf.  then 
have  been  proi)er  to  instruct  the  juiy  that,  in  determining  this  question, 
the  intoxicatitm  of  the  defendant  might  well  be  considered.  No  such 
ground  appears  to  have  been  taken  by  the  counsel  for  the  defence. 
There  was,  indeed,  some  testimony  tending  to  show  th:it  the  defendant 
had  been  struck  before  he  committed  the  act  for  wliicli  he  was  tried. 
But  the  weight  of  the  testimony  is  clearly  against  this  theory  of  the 
case.  It  was  no  doubt  judicious,  therefore,  for  the  defendant's  counsel 
to  refrain  from  asking  the  court  to  cliarge  that  the  intoxication  of  the 
defendant  might  be  considered  by  the  jury  in  determining  whether  the 
blow  was  sti-uck  in  the  heat  of  passion,  or  with  premeditated  design. 
Had  such  a  request  l)een  made,  I  think  it  would  have  been  the  duty^of 
the  court  so  to  charge  ;  though  from  the  state  of  the  testimony,  it  is  not 
likely  that  the  result  would  have  been  favorable  to  the  defendant. 

The  Supreme  Court  seem  to  have  understood  that,  in  all  cases  where 
without  it,  the  law  would  impute  to  the  act  a  criminal  intent,  drunken- 
ness may  be  availalde  to  disprove  such  intent.     I  am  not  aware  that 
such  a  doctrine  has  before  l)een   asserted.     It  is  certainly   unsound. 
The  adjudications   upon   the  question,  both  in  England  and  in  this 
country,  are  very  numerous,  and  are  characterized  by  ^singular  uniformity 
of  language  and  doctrine.     They  all  agree  that,  where  the  act  of  killing 
is  unequivocal  and  unprovoked,  the  fact  that  it  was  committed  while  the 
l)eri)etrator  was  intoxicated  cannot  be  allowed  to  affect  the  legal  charac- 
ter of  the  .    xiie.     But  when  the  circumstances  are  such  as  to  raise  the 
(lucstion  whether  the  act  was  the  result  of  design  or  impulse  of  sudden 
liassion,  the  intoxicatif)n  of   the  accused  is  a  [ji-oper  subject  of  consid- 
eration.    "  Drunkenness,"  says  Paiuvk,  B.,  in  li,'.  v.  Thomas,^  "may 
i)e  taken  into  consideration  in  cases  where  what  the  law  deems  sulHcient 
provocation  has  been  given,   l)ecause  the  question  is,  in  such  cases, 
wliether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger,  excited 
liy  the  previous  provocation  and  that  passion  is  more  easily  excitable  in 
a  person  when  in   a  state  of  intoxication   than  when   he  is   sober." 
Again,  in  i^cT;  v.  J/ea/cm,2  Ai.or.ijsox,  B.,says:   "  With  regard  to  the 
intention,  drunkenness  may,  perhaps,  be  adverted  to  according  to  the 
nature  of  the  instrument  used.     If  a  man  use  a  stick,  you  would  not 
infer  a  malicious  intent  so  strongly  against  him,  if  drunk  wlien  he  made 
an  intemperate  use  of  it,  as  you  would  if  he  had  used  a  different  kind 


C.  &  p.  817. 


»  7  CAP.  297. 


(;;)i; 


DULNKENNES.S. 


IVople  V.  UojiLi's. 


of  wt'tipou ;  but,  where  a  (huigerous  weapon  is  used,  which,  if  used, 
must  pHnluee  grievous  bodily  hiirni,  driuilvenncss  can  have  no  effect  on 
the  consideration  of  the  malicious  intent." 

This  subject  has  been  well  considered  by  the  Court  of  Appeals  in 
South  Carolina,  in  the  State  \.  McCantsA  In  pronouncing  the  judg- 
ment of  the  court,  Wauulaw,  J.,  after  referring  to  the  hinguago  of 
Pakkk,  B.,  in  Rex  v.  Thomati,  above  cited,  and  what  is  said  on  the  sub- 
ject in  Russell  on  Crimes,-  says:  "  To  th's  doctrine  I  subscribe,  under- 
standing l)y  it  that  he  who  is  in  a  state  of  voluntary  intoxication  shall 
be  subject  to  the  same  rule  of  conduct,  and  the  same  legal  influences, 
as  the  sober  man,  but  that  where  a  provocation  has  ])een  received, 
which,  if  acted  upon  instantly,  would  mitigate  the  offence  of  a  sober 
man,  and  the  question  in  the  case  of  a  drtinken  man  is,  whether  that 
provocation  was  in  truth  acted  upon,  evidence  of  intoxication  may  bo 
considered  in  deciding  that  question.  The  law  infers  malice  against 
the  drunkard  who,  in  his  frenzy,  shoots  into  a  crowd  and  kills,  he  knows 
not  who,  no  less  than  against  a  sober  man  for  like  conduct.  And  it 
wouUl  be  jeopardizing  the  peace  and  safety  of  society  to  say  that  he  who, 
by  half  a  dozen  glasses,  is  habitually  rendered  irritable  and  fierce,  shall 
be  looked  upon  with  more  indulgence,  when  he  has  barbarously  resented 
a  trivial  affront,  because  he  had  taken  the  quantity  of  licjuor  requisite 
to  make  him  a  savage."  So  in  Kelly  v.  .State,^  the  defendant  had  been 
indicted  for  murder  in  killing  his  slave.  It  was  proved  that  when  the 
act  was  committed  he  was  drunk.  The  counsel  for  the  defendant  had 
asked  the  court  to  instruct  the  jury  that  they  might  take  the  evidence 
of  intoxication  into  consideration  as  a  proof,  more  or  less  strong, 
according  to  their  view  of  the  circumstances,  of  the  absence  of  that  pre- 
meditated design  re(iuired  as  an  indispensable  ingredient  of  murder. 
The  court  declined  so  to  charge.  In  reviewing  the  case  upon  error,  the 
Court  of  Appeals,  in  Mississippi,  say:  "The  fact  of  the  party  being 
intoxicated  has,  indeed,  been  holden  to  be  a  circumstance  proper  to  be 
taken  into  consideration,  where  the  sole  question  is,  whether  an  act  wtis 
premeditated  or  done  with  only  sudden  heat  or  impulse." 

In  Pennsylvania,  Tennessee,  and  some  other  States,  the  crime  of  mur- 
der is  classified  by  statute  into  two  degrees.  When  the  killing  is 
"  wilful,  deliberate,  malicious  and  premeditated,"  it  is  murder  in 
the  first  degree.  All  other  kinds  of  murder  are  declared  to  be  murder 
in  the  second  degree.     Where  this  distinction  prevails,  it  has  been  held 


th| 

del 

ncl 

lial 

tli[ 

ur 

qui 


1  1  Speers,  384. 


"  1).  6. 


3  Sm.  A  M.  518. 


DIUJXKENNE.SS. 


t* .)  — 


Caiuiot  Reduce  Ivilliui?   to  Mansliiu^lilcr. 


ieh,  if  used, 
no  effect  on 

f  Appeals  in 
iig  the  judg- 
languago  of 
i  on  the  sub- 
ribe,  under- 
ieation  shall 
i  influences, 
n   received, 
!  of  a  sober 
iietber  that 
ion  may  be 
lice  against 
s,  he  knows 
^'t.     And  it 
hat  he  who, 
fierce,  shall 
ily  resented 
or  requisite 
it  liad  been 
t  when  the 
.'ndant  had 
e  evidence 
ss  strong, 
•f  that  pre- 
>f  murder, 
error,  the 
^rty  being 
oper  to  be 
an  act  w:is 

Qe  of  mur- 
killing  is 
mrder  in 
)e  murder 
been  held 


that  the  influence  of  intoxication  may  be  consiilered  by  the  jury  in 
detcrniuiiiig  whether  there  had  been  that  deliberation  and  premeditation 
necessary  to  constitute  the  ciime  of  murder  in  the  first  degree.  But  it 
has  been  repeatedly  said,  when  asserting  this  ride,  that  it  Ts  confined  to 
the  question  whether  the  crime  is  murder  in  tiie  first  or  second  degree 
under  the  statute.  In  such  a  case,  deliberation  as  well  as  design  is  a 
question  of  fact  to  be  determined  by  the  jury.' 

In  the  case  now  l>efore  us,  there  was  no  attempt  to  show  that  the  act 
of  killing  was  committed  under  the  impulse  of  sudden  passion.  All 
that  the  court  was  requested  to  do,  was,  to  instruct  the  jury  that  if 
they  were  satisfied  that,  by  reason  of  the  intoxication,  there  was  no 
intention  or  motive  to  commit  the  crime  of  murder,  tiicy  should  convict 
the  defendant  of  manslaughter  only.  In  refusing  so  to  charge,  there 
was  no  error.  If,  l^y  this  request,  the  counsel  for  the  dclcndau't  meant, 
:is  the  recpiest  seems  to  have  been  interpreted  by  the  Supreme  Court, 
that  the  jury  should  be  instructed  to  take  into  consideration  the  intoxi- 
cation of  the  defendant  in  determining  the  intent  with  which  the  homi- 
cide was  committed,  the  proposition  is  not  law.  It  has  never  yet  been 
lield,  that  the  crime  of  murder  can  be  reduced  to  manslaughter  bv 
sliowing  that  the  per[)etrator  was  drunk,  when  the  same  offence,  if 
committed  by  a  sol)er  man,  would  be  murder.  If,  on  the  other  hand, 
it  w\a3  intended  that  the  court  should  instruct  the  jury  tliat  if,  by  rea- 
son of  intoxication,  the  defendant  was  so  far  deprived  of  his  senses  as 
to  be  incapable  of  entertaining  a  purpose,  or  acting  from  design,  the 
jury  were  so  instructed.  This  was  enough,  unless  the  counsel  for  the 
defendant  desired  to  have  the  jury  decide  whether  the  act  was  not  com- 
Jiiitted  in  the  heat  of  passion.  In  that  case,  his  proposition,  must  have 
been  very  differently  framed. 

Ui)on  the  whole  case,  I  am  satisfied  that  no  error  has  been  committed 
by  the  court,  and  no  injustice  done  the  defendant.  The  judgment  of 
the  Supreme  Court,  should,  therefore,  be  reversed,  and  that  of  the 
Sessions  atlirmed. 

Judgment  of  the  Supreme  Court  reversed  and  that  of  the  General 
Sessions  affirmed. 

'  Swan  V.  State,  4  Humph.,  136;  Pirtle  v.  State,  9  Id.  670;  Uaile  r.  state,  1  Id.  154. 


•18. 


638 


DUUNKENXESS. 


Jones  V.  Commonwealth. 


INTOXICATION  — DEGliEES  OF  MURDER. 

Jones  v.  Commonwealth. 

[75  Pa.  St.  40;5.] 
In  the  Supreme  Court  of  Pennsylvania^  1874. 
Hon.  Daniki.  AdNKW,  Chief  Justice 


<< 


GkOUOE  SHAUSWOOl), 

IIknuy  \V.  Williams, 

Ul.YSSES  Mkkci'r, 
"  Isaac  (J.  Goudon, 
"     Edwaui)  M.  Paxson, 

"      WaUHKN  J.  WOODWAKD, 

Intoxication  is  no  oxcuse  for  crime;  but  if  it  deprives  tlie  reason  of  power  to  think  an(f 
weigh  the  nature  of  the  act  committed,  it  may  prevent  a  conviction  for  murder  in  the 
flrbt  degree. 

Error  to  the  Court  of  Oyer  and  Terminer  of  Luzerne  County. 

William  S.  Jones  was  indicted  for  the  murder  of  Frances  Hughes, 
and  convicted  of  murder  in  the  first  degree.  A  new  trial  heing  allowed, 
he  pleaded  guilty,  and  the  judge  sentenced  him  as  for  murder  in  the 
first  degree. 

AoNEW,  C.  J.  —  In  this  case  if  we  confine  our  attention  to  the  weapon, 
its  previous  preparation,  the  threat  proved  by  Mr.  Crooks,  the  timo  for 
deliberation,  and  the  circumstances  of  the  killing  of  JNIrs.  Hughes  by 
the  prisoner,  we  might  conclude  that  his  crime  was  murder  in  the  first 
degree.  In  this  aspect  the  learned  judge  of  the  Oyer  and  Terminer 
had  sufficient  evidence  to  justify  his  finding  of  the  degree.  But  ample 
time  for  reflection  may  exist,  and  a  prisoner  may  seem  to  act  in  his  right 
mind  and  from  a  conscious  purpose ;  and  3'et  causes  may  affect  his 
intellect  preventing  reflection  and  hurrying  onward  his  unhinged  mind 
to  rash  and  inconsiderate  resolutions,  incompatible  with  the  deliberation 
and  premeditation  defining  murder  in  the  first  degree.  When  the  evi- 
dence convin  .;es  us  of  the  inability  of  the  prisoner  to  think,  reflect  and 
weigh  the  nature  of  his  act,  we  must  hesitate  before  we  pronounce  upon 
the  degree  of  his  offence.  That  reasonable  doubt  which  intervenes  to  pre- 
vent a  fair  and  honest  mind  from  being  satisfied  that  a  deliberate  ami 
premeditated  puri)ose  to  take  life  existed,  should  throw  its  weight  into 
the  scale  to  forbid  the  sentence  of  death.  Intoxication  is  no  excuse 
for  crime ;  yet  when  it  so  clouds  the  intellect  as  to  deprive  it  of  the 


MUUUKU    IN    tup:    I'lUST    DKGKEE. 


G3!) 


Elements  of  this  Crime. 


!r  to  think  anff 
murder  in  the 


unty. 

is  Hughes, 
ig  allowed. 
rder  in  the 

le  weapon, 
le  timj  for 
lughes  by 
in  the  first 

Terminer 
But  ample 
11  his  right 
affect  his 
igod  mind 
'liberation 
'n  the  evi- 
etlect  and 
ince  upon 
les  to  pre- 
icrate  and 
I'ight  into 
10  excuse 

it  of  the 


power  to  tliink  and  weigh  the  nature  of  the  act  committed,  it  may  pre. 
vent  a  conviction  of  murder  in  the  first  degree.  The  intent  to  take  life, 
with  a  full  and  conscious  knowledge  of  the  purpose  to  do  so,  is  the  dis- 
tinguishing criterion  of  murder  in  the  first  degree;  and  this  conscious- 
ness of  the  purposes  of  the  heart  is  defined  by  the  words  deliberately 
and  premeditatedly.  Much  has  been  said  upon  the  meaning  of  these 
words;  some  of  which  may  mislead,  if  we  do  not  consider  well  the 
cases  in  which  it  has  been  uttered.  In  Commonwealth  v.  O'llara, 
tried  in  1797,  Chief  Justice  McKkan  said:  "What  is  the  meaning  of 
the  words  deliberately  and  premeditatedly?  The  first  implies  s°me 
degree  of  reflection.  The  party  nuist  have  time  to  fiame  the  design. 
The  time  was  very  short,  —  it  cannot  be  said  to  be  done  coolly.  The 
Legislature  must  have  put  a  different  construction  on  tlie  words  delib- 
erately and  premeditatedly.  If  he  had  time  to  think,  then  he  had  time 
to  think  he  would  kill.  If  you  are  of  opinion  he  did  it  deliberately, 
with  intention  to  kill,  it  is  murder  in  the  first  degree.  If  he  had  time 
to  think,  and  did  intend  to  kill,  for  a  minute,  as  well  as  an  hour  or  day, 
it  is  sufficient."  The  correctness  of  this  charge  to  the  jury  will  not  be 
doubted  if  we  examine  the  circumstances,  and  yet  this  is  essential  to 
understand  it  properly.  O'llara  was  a  journeyman  shoemaker,  sitting 
on  his  bench  at  work  with  Ilaskins  and  others.  Aitkins,  the  deceased, 
his  friend,  came  upstairs,  and  said  to  him :  "  I  have  been  talking  about 
you  belowthis  hour."  "  Yes,"  said  Ilaskins,  "  about  the  five  sheep  you 
stole."  Thereupon  O  'Ilara  immediately  left  his  work  upon  the  bench, 
took  up  a  shoemaker's  knife  by  his  side,  went  up  to  Aitkins  and  stabbed 
him  in  the  belly.  The  act  was  not  thoughtless,  for  the  prisoner  had 
time  to  lay  down  his  work,  take  ui)  the  knife,  rise  and  walk  up  to  his 
friend,  and  to  strike  him  in  a  vital  part.  Upon  every  principle  of  human 
action,  we  must  conclude  under  these  circumstances,  that  O 'Ilara  in- 
tended to  take  Aitkins'  Hfe,  otherwise  the  thoughts  of  man  never  can 
he  determhied  from  clear  and  distinct  acts  evidencing  the  pm-poses  of 
the  mind.  There  was  an  irritation,  it  is  true,  heightened  by  tlie  pre- 
viously existing  story  about  the  sheep ;  but  it  was  without  any  just 
cause  of  provocation  to  take  life,  and  therefore,  evidenced  a  heart 
malignant,  and  ready  to  execute  a  vengeance  even  upon  a  friend,  in  a 
moment  of  wicked  passion.  In  such  a  case,  a  moment  Avas  suflicient  to 
form  and  deliberate  upon  the  purpose  to  take  life,  and  premeditate  the 
means  of  executing  it.  But  these  words  of  the  Chief  Justice  are 
sometimes  wrested  from  their  application  and  applied  to  cases  where 
reason  has  been  torn  up  by  the  roots,  and  judgment  jostled  from  her 
throne. 


640 


DUL'NKENXKSS. 


Jones  V.  C'oiiiinonwealth. 


m: 


Another  case  often  quotevl  and  misapplied  is  that  of  Richard  Smith, 
tried  l)efore  President  Rrsii  in  18 IG.     Sniitli  iiad  become  intimate  with 
llie  wife  of  Capt.  Carson,  and  had  a  dilliculty  with  him  in  liis  own 
house.     He  returned  with  Mrs.  Carson  and  went  witli  her  into  the  parlor. 
Carson  came  up  unarmed,  and  ordered  him  to  leave.     Smith  had  armed 
himself,  and  held  one  hand  under  his  surtout,  and  the  other  in  his  breast. 
Carson  told  Smith  he  had  come  to  take  i)eaceable  possession  of  his  own 
house,  and  the  latter  nuist  go.     Smith  said  to  Mrs.  Carson,  "Ann,  shall 
I  go."     She  replied,  "  No."     Smith  moved  into  the  corner  of  the  room, 
Carson  following  him  and  telling  him  he  must  go,  at  the  same  time  let- 
ting his  arms  fall  by  his  side,  and  saying  he  had  no  weapon.     Upon  this, 
Smith  drew  a  pistol  from  luider  his  surtout,  and  shot  Carson  through 
the  head,  threw  down  his  pistol  and  ran  down  stairs.     In  this  state  of 
the  facts,  Judge  Rush,  charging  upon  the  subject  of  deliberation,  said : 
"The  truth  is,  in  the  nature  of  the  thing,  no  time  is  fixed  by  the  law, 
or  can  be  fixed  for  the  deliberation  required  to  constitute  the  crime  of 
murder."     Speaking  then  of  premeditation,  he  says:  "It  is  equally 
true,  both  in  fact  and  from  experience,  that  no  time  is  too  short  for  a 
wicked  man  to  frame  in  his  mind  the  scheme  of  murder,  and  to  contrive 
the  means  of  accomplishing  it."     We  cannot  doubt  the  correctness  of 
these  remarks  in  the  case  in  which  they  were  made,  but  cases  often 
arise,  when  this  readiness  of  intent  to  take  life,  when  imputed,  may  do 
great  injustice.     Hence  it  was  said  in  Drum's  Case :  ^  "  This  expression 
(of  Judge  Ri'sii)  must  be  qualified,  lest  it  mislead.     It  is  true  that  such 
is  the  swiftness  of  human  thought,  no  time  is  so  short  in  which  a  wicked 
man  may  not  form  a  design  to  kill,  and  frame  the  means  of  executing 
his  purpose ;  yet  this  suddenness  is  opposed  to  premeditation,  and  a  jury 
must  be  well  convinced  upon  the  evidence  that  there  was  time  to  deliberate 
and  premeditate.     The  law  regards,  and  the  jury  must  find  the  actual  in- 
tent, that  is  to  say,  the  fully  formed  pur[)ose  to  kill,  with  so  much  time  for 
deliberation  and  premeditation  as  to  convince  them  that  this  purpose  is 
not  tlie  iiinnediate  offspring  of  rashness  and  impetuous  temper,  and  that 
the  mind  has  become  fully  conscious  of  its  own  design.     If  there  be 
time  to  frame  in  the  mind  fully  and  consciously  the  intention  to  kill,  and 
to  select  the  weapon  or  means  of  death,  and  to  think  and  know  before- 
hand, though  the  time  be  short,  the  use  to  be  made  of  it  then  there 
is  time  to  deliberate  and  premeditate."     This  was  said  in  the  case  of  a 
sudden   affray,  when  the   circumstances  made  it   a  serious  question 
whether  the  act  was  premeditated,  or  was  the  result  of  sudden  and  rash 
resentment. 

'  r.-i  I'a.  SI.  ic. 


DUUXKENNEtSS. 


041 


lleh'vaut  on  QiU'stion  of  Dcjircc  of  C'rinio. 


hard  Smith, 
itimate  with 
in  his  own 
)  the  parlor. 
I  luul  armed 
n  liis  breast. 
1  of  his  own 
"Ann,  sliall 
)f  tlie  room, 
ine  time  let- 
Upon  this, 
5on  through 
this  state  of 
ation,  said : 
by  the  law, 
he  crime  of 
'>  is  equally 
I  short  for  a 
to  contrive 
rroctness  of 
cases  often 
ed,  may  do 
expression 
le  that  such 
h  a  wicked 
executing 
,  and  a  jury 
)  deliberate 
e  actual  in- 
ch time  for 
l)urpose  is 
r,  and  that 
f  there  be 
to  kill,  and 
ow  before- 
then  there 
case  of  a 
question 
1  and  rash 


Thus  we  must  perceive,  that  at  the  bottom  of  all  that  has  l)een  said  on 
the  subject  of  murder  in  the  first  dcureo,  is  the  frame  of  mind  in  which 
the  deadly  blow  is  <>iven,  tiiat  state  of  mind  which  enables  the  prisont'r 
either  to  know  and  bo  fully  conscious  of  his  own  i)urposo  and  act,  or 
not  to  know.  AVhy  is  insanity  a  defence  to  homicide?  Bccau.-e  it  is 
a  condition  of  the  mind  which  renders  it  incapable  of  reasoning  and 
judging  correctly  of  its  own  impulses,  and  of  determining  whether  the 
impulse  should  l)e  followed  or  resisted.  Intelligence  is  not  the  only 
criterion,  for  it  often  exists  in  the  madman  in  high  degree,  making  him 
shrewd,  watchful,  and  capable  of  determining  his  purpose,  and  select- 
ing the  means  of  its  accomplishment.  "Want  of  intelligence,  therefore, 
is  not  the  only  defect  to  moderate  the  degree  of  offence ;  but  with  intel- 
ligence there  may  l)e  an  absence  of  power  to  determine  properly  the  true 
nature  and  character  of  the  act,  its  effect  upon  the  suliject  and  the  true 
responsibility  of  the  actor ;  a  power  necessary  to  control  the  impulses  of 
the  mind  and  prevent  the  execution  of  the  thought  which  possesses  it. 
In  other  words,  it  is  the  absence  of  that  self-determining  power,  which 
in  a  sane  mind  renders  it  conscious  of  the  real  nature  of  its  own  purpose, 
and  capable  of  resisting  wrong  impulses.  When  this  self-governing 
power  is  wanting,  whether  it  is  caused  by  insanity,  gross  intoxication,  or 
other  controlling  influence,  it  cannot  be  said  truthfully'  that  the  mind  is 
fully  conscious  of  its  own  purposes,  and  deliberates  or  premeditates  in 
the  sense  of  the  act  describing  murder  in  the  first  degree.  We  must, 
however,  distinguish  this  defective  frame  of  mind  from  that  wickedness 
of  heart  which  drives  the  murderer  on  to  the  commission  of  his  crime, 
reckless  of  consequences.  Evil  passions  do  often  seem  to  tear  up  rea- 
son by  the  root,  and  urge  on  to  murder  with  heedless  rage.  But  they 
:ire  the  outpourings  of  a  wicked  nature,  not  of  an  unsound  or  disabled 
mind.  It  becomes,  therefore,  necessary  to  inquire  upon  the  evidence 
in  this  case,  whether  the  prisoner  was  really  able  to  deliberate  and  pre- 
meditate the  homicide. 

William  S.  Jones  had  been  upon  bad  terms  with  his  wife.  She  had 
become  too  intimate  with  another  Jones,  called  Charley.  William  S. 
Jones  failing  to  break  off  the  association,  got  to  drinking  hard,  and 
finally,  after  another  quarrel  with  his  wife,  on  the  10th  of  June,  1871, 
attempted  suicide  by  taking  a  large  quantity  of  laudanum.  Dr.  Davis 
found  him  lying  on  a  lounge  partly  insensible,  eyes  nearly  closed,  pupils 
contracted  and  face  discolored  by  congestion.  Energetic  remedies 
were  used  and  he  was  so  far  restored  as  to  be  out  of  danger ;  but  the 
effects  of  the  laudanum  remained.  From  this  time  until  the  night  of 
the  19th  of  June,  when  he  took  the  life  of  Mrs.  Hughes,  his  mother-in- 
41 


642 


I)Iji:nken\ess. 


Joni's  »).  Coiiiinoiiwcalth. 


law,  he  was  in  a  constant  state  of  nervous  excitement,  continued  drinkinfj, 
and  had  buttles  of  laudanum  about  his  person,  ]\rany  witnesses  de- 
scribe him  as  without  sense,  constantly  tall\ing  nonsense,  wild  in 
appearance,  and  incoherent  in  speech.  Some  sa}'  he  acted  like  a  man 
drinking  liard,  was  iiitoxicated,  and  once  fell  from  a  horse.  Otliers  de- 
scribed him  as  looking  crazy,  talking  to  himself,  his  hands  going,  his 
head  thrown  back,  walking  to  and  fro,  throwing  his  head  about,  swing- 
ing his  arms,  and  wild,  nervous,  and  excited.  lie  would  jump  upon  a 
chair  and  begin  to  preacli,  and  run  off  upon  Charley  Jones  and  his  wife  ; 
said  he  was  going  to  build  to  a  tavern  on  tlie  mountain,  and  a  church 
beside  it ;  claimed  all  the  property'  about,  and  was  evidently  much  out 
of  the  way.  Tliese  appearances  were  particularly  noticed  on  the  19lh 
day  of  June,  the  day  of  the  homicide,  lie  was  then  on  very  bad  terms 
with  his  wife,  3'et  seeking  her  and  remonstrating  Avith  her,  and  on  the 
afternoon  of  that  day,  he  had  beaten  and  abused  her,  chasing  lier  down 
stairs,  and  into  the  street,  and  then  striking  and  kicking  her  until  sep- 
arated by  others.  He  continued  in  this  condition  down  into  the  night 
of  the  19th,  when  he  came  to  ]\Irs.  Hughes'  house,  between  nine  and 
ten  o'clock.  Stepping  inside  of  the  door,  he  asked  Mrs.  Hughes  if  the 
fuss  was  settled;  said  he  had  comedown  to  settle  it.  She  rose  and 
told  him  to  go  awa}' ;  told  Lizzie  to  fetch  a  poker;  said  she  would 
strike  him  if  he  did  not  go  away.  He  stepped  back.  She  picked  up  a 
stool,  and  told  him  if  he  did  not  go  away  she  would  level  him  with  it. 
He  said,  "  I'll  level  you  now,"  pulled  out  a  pistol,  stepped  forward  and 
shot  her.  Mrs.  Hughes  twice  exclaimed,  "  I  am  shot."  and  went  back 
into  the  kitchen ;  while  Jones  was  seized  by  the  persons  present,  and 
the  pistol  wrested  from  his  hand.  Between  him  and  Mrs.  Hughes  there 
had  been  a  state  of  good  feeling  before  he  took  tlie  laudanum,  and  she 
attended  him  upon  the  day  when  he  was  under  its  influence.  He  spoke 
of  her  as  his  best  friend.  His  conduct  towards  his  wife,  her  daughter, 
had  led  Mrs.  Hughes  to  resent  it,  and  some  feeling  had  arisen  on  tiie 
part  of  Jones;  but  after  his  arrest,  he  said  he  took  the  pistol  to  kill 
his  wife,  and  the  old  woman  had  got  it. 

Looking  then  at  the  state  of  Jones*  mind  from  the  10th  until  the  19th 
of  June,  and  down  to  the  very  moment  he  fired  the  pistol,  and  also  at 
the  suddenness  of  his  quarrel,  her  call  for  the  poker  and  lifting  tlie 
stool,  it  seems  to  us  a  matter  of  grave  doubt,  whether  his  frame  of  mind 
was  such  that  he  Avas  capable  either  of  deliberation  or  premeditation. 
It  seems  to  have  been  i-ather  the  sudden  impulse  of  a  disordered  brain, 
weakened  by  potations  of  laudanum  and  spirits,  and  of  a  distorted 
mind,  led  away  from  reason  and  judgment  by  dwelling  upon  the  con- 


DKUN'KEWESS  —  DfUJREES    OF   MIHDER. 


()'4;{ 


Swan  V.  State, 


(I  (Irinkiiifr, 
tnesses  de- 
!,    wild    in 
like  a  man 
Otliors  de- 
going,  his 
•lit,  swing- 
np  upon  a 
1  his  wife  ; 
I  a  church 
much  out 
n  the  19th 
bad  terms 
lid  on  the 
her  down 
until  sep- 
'  the  night 
nine  and 
;lic3  if  the 
i  rose  and 
he  would 
eked  up  a 
n  with  it. 
■ward  and 
vent  back 
■sent,  and 
jhes  there 
I,  and  she 
He  spoki' 
daughter, 
3n  on  the 
ol  to  kill 

the  19th 
id  also  at 
ftiug  the 
e  of  mind 
?ditation. 
ed  brain, 
distorted 
the  con- 


duct of  his  wife,  influenced  by  his  continued  state  of  excitement  It 
presented  a  case  of  the  preparation  of  a  weapon,  and  an  undefined  pur- 
pose of  violence  to  some  one,  where  the  time  for  reflection  was  ample  • 
but  where  the  frame  of  mind  was  wanting,  which  would  enable  the 
prisoner  to  be  fully  conscious  of  his  purpose,  or  the  resolve  to  take  the 
life  of  the  deceased,  with  deliberation  and  i)remeditation.  Yet  it  was 
clearly  murder,  done  without  sufficient  provocation  and  without  neces- 
sity, and  in  a  frame  of  mind  evincing  recklessness,  and  that  common- 
law  malice,  which  distinguishes  murder  from  manslaughter.  There  was 
error,  therefore,  in  ascertaining  the  degree  and  sentencing  to  death. 


DRUNKENNESS -DEGREES   OF    MURDER. 

Swan  v.  State. 

[4  Humph.  130.] 
In  the  Supreme  Court  of  Tennessee,  July,  1843. 
Hon.  Nathan  Grrex, 


on.  iNATIIAN   (iRREX,  "j 

"     William  B.  Rkksk,  \  Judges. 

"       WiLLIA.M  B.  TUBLKY.  -' 


On  the  question  of  the  degree  of  a  murder  evidence  of  the  drunkenness  of  the  prisoner  is 
relevant.  ^ 

The  prisoner,  was  indicted  for  the  murder  of  Samuel  G.  Moore,  and 
convicted  and  sentenced  to  be  hanged.     He  appealed. 

Jarningan,  for  the  prisoner. 

The  Attorney-General  for  the  State. 

Reese,  J.,  delivered  the  opinion  of  the  court. 
*         *******         *■**»         » 

With  regard  to  the  charge  of  the  court  the  record  informs  us  as  fol- 
lows :  — 

"The  court,  it  was  admitted  on  all  sides,  charged  the  law  cor- 
rectly, with  one  exception,  to  wit :  counsel  for  defendant  requested  the 
judge  to  state  to  the  jury,  that  if  the  defendant  was  drunk  at  the  time 
he  inflicted  the  wound,  it  would  reduce  the  crime  from  murder  in  the 
first  degree  to  murder  in  the  second  degree.  But  the  court  stated  to  the 
jury  that  drunkenness  was  no  excuse  or  justification  for  any  crime,  and 
then  read  the  act  of  Assembly  to  the  jury,  and  left  it  to  them  to  say,  in 


(\U 


I)Klnki:nnk8.s. 


Swan  t^.  Stiitf. 


the  event  they  should  (liul  the  (h'foiuhint  guilty  of  murder  in  the  first 
<legrce,  in  their  verdict,  whether  there  was  any  rnitigtiting  cireunistauce 
or  circumstances." 

Tlie  coin-t  was  asked  to  charge,  as  a  mutter  of  hvw,  tliat  drunkenness 
would  reduce  the  crime  of  murder  in  the  first  degree  to  that  of  murder 
in  the  second  degree.  The  court,  i  i  reply,  said  that  drunkenness  is  no 
excuse  or  Justification  for  any  crime.  The  legal  correctness  of  the  gen- 
eral statement  of  the  court  is  abundantly  sustained  by  a  long  nnd  un- 
broken scries  of  authority  in  ancient  and  modern  times,  and  by  none 
more  strongly  and  full}'  than  by  this  court  in  the  case  referred  to  in 
Martin  &  Yerger's  Reports.  AVhatever  etliical  pliilosoph^'  may  make  of 
the  matter,  such,  probably,  for  stern  reasons  of  policy  and  necessity, 
will  ever  remain  the  doctrine  of  criminal  courts.  But,  although  drunken- 
ness, in  point  of  law,  constitutes  no  excuse  or  justification  for  crime, 
still,  when  the  nature  and  essence  of  a  crime  is  made  liy  law  to  <lepend 
ui)on  the  peculiar  state  and  condition  of  the  criminal's  mind  at  the  time, 
and  with  reference  to  tiie  act  done,  drunkenness,  as  a  matter  of  fact, 
affecting  such  state  and  condition  of  the  mind,  is  a  proper  sul»ject  for  con- 
sideration and  incjuiry  by  the  jury.  The  question  in  such  case  is,  what  is 
tlie  mental  stutUH  f  Is  it  one  of  self-possession,  favorable  to  the  formation 
of  fixed  purpose,  b}'  deliberation  and  premeditation,  or  did  the  act  spring 
from  existing  passion,  excited  by  inadequate  provocation,  acting,  it  may 
be,  on  a  peculiar  temperament,  or  upon  one  already  excited  by  ardent 
spirits.  In  such  case  it  matters  not  that  the  provocation  wns  inade- 
quate, or  the  si)irits  voluntarily  drank  ;  the  question  is,  did  the  act  pro- 
ceed from  sudden  passion,  or  from  deliberation  and  i)renH'ditation? 
What  was  the  mental  Kfatiis  at  the  time  of  the  act,  and  with  reference  to 
the  act?  To  reyjard  the  fact  of  intoxication  as  meriting  consideration 
in  such  a  case,  is  not  to  hold  that  drnnkenness  will  excuse  cr*ne,  but 
to  inquire  whether  the  very  crime  which  the  law  defines  and  punislies 
has,  in  point  of  fact,  been  committed.  If  the  mental  state  required  by 
law  to  constitute  the  crime  be  one  of  deliberation  and  premeditation, 
and  drunkenness  or  other  cause  excludes  the  existence  of  such  mental 
state,  then  the  crime  is  not  excused  by  drunkenness  or  such  other  cause, 
but  has  not,  in  fact,  been  committed.  Even  in  iMigland,  where  the  crime 
of  murder  in  the  first  degree  has  not  been  created  and  defined  1)y  law,  it 
has  been  held,  in  the  case  of  KUig  v.  Gi'indley,^  that,  "  though  voluntary 
drunkenness  cannot  excuse  from  the  commission  of  crime,  yet  when  — 
as  upon  a  charge  of  murder  —  the  material  question  is  whether  an  act  is 


>  1  Rus.-^.  on  Cr. 


DKLNKENXESS  —  DEUliEEili   OF    MLUDKU. 


(Ilo 


rirtio  V.  State 


1  the  first 
uiustancc 

I  like  nil  ess 
if  iminler 
loss  is  no 
F  the  gen- 
l  and   un- 

hy  none 
['red  to  in 
Y  make  of 
leccssit}-, 
(Ininken- 
)i'  crime, 
o  depend 
the  time, 

of  fact, 
t  for  eon- 
s,  wiiat  is 
orniation 
ictsiiring 
^,  it  may 
»y  ardent 
IS  inatle- 

aet  pro- 
dilation? 
}renee  to 
ideration 
'Tie,  but 
punishes 
uired  by 
ditation, 
li  mental 
!r  cause, 
lie  crime 
ly  law,  it 
ohintary 
when  — 
in  act  is 


premeditated,  of  done  only  with  sudden  heat  and  imptdsc,  the  fact  of 
the  party  being  intoxicated  has  been  held  to  be  a  circumstance  i)ropert() 
be  taken  into  consideration."  And  in  Pennsylvania  upon  a  statute 
similar  to  ours,'  it  has  been  held  that  "  (b-unkenness  does  not  incaiiaci- 
tate  a  man  from  forming  a  premeditated  design  of  murder,  but,  as 
drunkenness  clouds  the  understaiubng  and  excites  passion,  it  may  be 
evidence  of  passion  only,  and  of  want  of  malice  and  design."  But  the 
bill  of  exceptions  informs  us  that  the  charge  of  tiie  court  was  in  all  re- 
spects unquestionable  except  as  to  the  point  stated.  We  are,  there- 
fore, to  suppose  that  the  court,  when  charging  upon  the  nature  and 
character  of  murder  in  the  first  degree,  did  charge  whatever  was  proper 
upon  the  subject  we  have  been  discussing;  upon  the  whole,  then  we 
have  felt  it  to  be  our  duty  to  allirm  the  judgment  in  this  case. 


DRUNKENNESS— DEGREES   OF   MURDER  -  PREMEDITATION— DELIB- 

ERATION  —  MANSLAUGHTER. 

PiRTLE  V.  State. 

[y  Humph.  (K;.^.] 
In  the  Supreme  Court  of  Tennessee,  April  Term,  1849. 

IIou.  N.\TII.\.V  Grkex,  ^ 

"     WiLLi.v.M  B.  Ti  ui.F.v,     (  Judges. 
"     Robert,!.  McKiNNEY.  j 

Brunkenness  —  Relevant  on  Deliberation  and  Premeditation.  — Drunkt'iines.s  works 
no  luitigiitiou  of  the  graiJe  of  tlic  guilt  of  any  one  who  hits  committed  a  criminal  offence ; 
yet  in  a  case  where  under  the  act  of  182!),  ch.  23,  sec.  3,  there  must  be  a  deliberate  and 
premeditated  killing  to  constitute  murder  in  the  first  degree,  proof  of  drunkenness  is 
admissible,  because  it  may  show  that  the  party  accused  was  incapable,  by  reason  of 
the  state  of  his  mind,  of  forming  a  deliberate  and  premeditated  design  to  take  life. 
As  between  the  offences  of  murder  in  the  second  degree  and  manslaughter,  the  drunk- 
enness of  the  offender  can  form  no  legitimate  subject  of  imiuiry ;  the  killing  voluntary, 
the  offence  is  necessarily  murder  in  the  second  degree,  unless  the  provocation  were 
such  as  to  reduce  the  offence  to  manslaughter. 

This  is  an  indictment  against  Pirtle,  in  the  Circuit  Court  of  Madison 
County,  for  the  commission  of  murder  in  the  first  degree  by  stabbing. 
The  defendant  was  tried  by  a  jury  and  umler  the  charge  of  the  i)resid- 


'  Pennsylvania  I'.  RIcFall,  Add.  237. 


r>4i; 


DIM'SKENNKSS. 


I'lrtli-  V.  Sliilr 


iiifjf  jmluje  (Rkak),  lie  wiis  found  i^iiilty,  mid  llic  jiidj^iufiit  rendered 
ngj)iii!st  liini.     lie  aiipetiled. 

M.  liniwn  and  ToKi'd,  fur  the  plaintiff  in  error. 

Till'  Attonieif-Gencntl,  for  the  Stale. 

Ti  iM.KV,  J.,  delivered  the  opinion  of  the  court. 

The  prisoner  wiis  convicted  of  the  crime  of  murder  in  the  second  de- 
dcj^ree  at  the  Auijrust  term,  1H|H,  of  the  Cireiiit  Court  of  Madison; 
upon  the  trial  it  was  jiroved  thiit  he  was  intoxicated,  from  the  use  of 
ardent  spirits,  at  the  time  he  committed  the  offence,  and  in  relation 
theret(i  the  .jiidj^e  cliargeil  the  Jury,  "•  that  the  fiict  of  such  drunkenness 
could  not  be  taken  into  consideration  by  them,  unless  the  defendant 
was  so  far  lioiie.  as  not  to  be  conscious  of  what  he  was  doinjjj,  and  did 
not  know  right  from  wrong."  Out  of  this  chargi"  arisi'S  the  jioiiit  to  lie 
consith'red  by  the  court  in  this  case,  and  that  is,  how  far  drunkenness, 
in  law,  is  a  mitigation  or  excuse  for  the  commission  of  offences. 

This  is  no  new  question,  presented  for  the  liist  time  for  considera- 
tion, but  one  of  the  earliest  consideration  in  the  law  of  offences  ;  one 
which  has  been  again  and  again  adjudicated  by  the  courts  of  Great 
Britain  and  the  United  States,  and,  as  wc  comprehend,  with  a  consis- 
tent r.nifonnity  rarely  to  be  met  with  in  ([uestions  of  a  like  interest  and 
importance.  Upon  the  subject  we  have  nothing  to  di'^cover,  no  new 
prlncii)le  to  lay  down,  no  philosophical  investigation  to  enter  into,  in 
relation  to  mental  sanity  or  insanity,  but  only  to  ascertain  liow  the  law 
upon  this  subject  htis  been  heretofore  adjudged,  and  so  to  adjudge  it 
ourselves.  Lord  IIalk  in  his  History  of  the  I'leas  of  the  Crown,'  says: 
*'  The  third  sort  of  madness  is  that  which  is  dementia  offvdata,  namely, 
drunkenni'ss.  This  vice  doth  deprive  a  man  of  reason,  and  puts  many 
men  into  a  perfect  but  temporary  frenzy  ;  but  by  the  laws  of  England, 
such  a  person  shali  h-ive  no  privilege  b}-  his  voluntarily  contracted  mad- 
ness, but  shall  have  tb:  same  judgment  as  if  he  were  in  his  right  senses." 
In  the  case  of  Reyig>:r  v.  Fogossa,-  it  was  laid  down  as  a  rule,  "  that  if 
a  person  that  is  drunk  kills  another,  this  shall  be  felony,  and  he  shall  Ik; 
hanged  for  it ;  and  3'et  lie  did  it  through  ignorance  ;  for  when  he  was 
drunk  he  had  no  understanding  or  memory  ;  but  inasmuch  as  that  ig- 
norance was  occasioned  b}'  his  own  at-t  and  foil}',  and  he  might  have 
avoided  it,  he  shall  not  be  privileged  thereby."  Lord  Coke  in  his  first 
Institute,^  says:  "As  for  a  drunkard,  he  is  vohmtaiuiis  damou,  he  hath 
no  privilege  thereby  :  but  what  hurt  or  ill  soever  he  doth,  his  drunken- 


p.  :!2. 


Plow.  lit. 


p.  217. 


TllK    KAIJLV    K.N(il-IMI    <  A.sKH. 


or 


Till'  'rt'imoscc  CiM's. 


t  rciulcied 


loc'ond  de- 
^liidison  ; 
lie  use  of 
n  ri'liition 
inikcniu'ss 
defcndiint 
U  and  did 
oiiit  to  be 
nkennesH, 
■s. 

.'oiisidora- 
let's;  OIK- 
of  Great 
a.  consis- 
frest  and 
I",  no  new 
I*  into,  ill 
V  the  law 
Ijndgo  it 
n,'  says: 
,  namely , 
II  ts  many 
England, 
;ed  mad- 
senses." 
"tlmt  if 
i  shall  1h; 
1  lie  was 
1  that  ig- 
?ht  have 
his  first 
he  hath 
Inuiken- 


nessdoth  aggregate  it."  In  Bpverb/\i  Ctiso,^  it  was  held,  "  that  ulthough 
he  who  is  drunk,  is  for  tlii'  time  von  covijion  iiicntis,  yvt  his  drunkenness 
dotli  not  niitigiite  his  act  or  offence,  nor  tiun  to  his  aviiil."  Hawkins 
in  his  Pleas  of  the  Crown, '-^  says:  "  lie  who  is  guilty  of  any  crime  wliat- 
ever  tlnough  his  voluntary  drunkenness,  shidl  be  punished  for  it  as 
much  as  if  he  had  been  sober."  Blackstone  in  the  fourth  book  of  his 
Commentaries,*'  says:  "As  to  artificial  voluntaril}'  contracted  madness, 
by  drunkenness  or  intoxication,  which  deprives  men  of  their  reason, 
and  puts  them  into  a  temponiry  frenzy,  our  law  looks  upon  this  as  an 
aggravation  of  the  offence,  ratlier  than  an  excuse  for  any  criminal  be- 
havior. The  hiw,  considering  how  easy  it  is  to  counterfeit  this  excuse, 
and  how  we-ak  an  excuse  it  is,  though  real,  will  not  suffer  any  man  thus 
to  privilege  one  crime  by  another."  So  Kiissell,  in  his  Treatise  on 
Crimes,*  says:  "With  respect  to  a  person  noii  cutiqios  vientis  from 
drunkenness,  a  species  of  madness  wliich  hns  been  termed  dementia 
ajj'ectdta,  it  is  a  settled  rule,  that  if  the  drunkenness  be  voluntary,  it 
cannot  excuse  a  man  from  the  commission  of  an}' crime ;  but  on  the 
contrary  must  be  considered  as  an  aixgravatiou  of  whatever  he  does 
amiss?  "  In  the  case  of  Cornu'cll  v.  State  of  Tmuiessec,-'  the  able  judge 
who  delivered  the  opinion  of  the  court,  in  speaking  upon  this  subject, 
uses  the  following  emphatic  language:  "A  contr:irv  doctrine  ought  to 
be  frowned  out  of  circulation,  if  it  has  obtidned  it,  by  every  friend  to 
virtue,  peace,  quietness,  and  good  govci'nment.  All  the  civilized  gov- 
einments  must  punish  the  culprit  who  relics  on  so  untenable  a  defence, 
and  in  doing  so  they  preach  a  louder  lesson  of  monility,  to  all  those  who 
are  addicted  to  intoxication,  and  to  parents,  and  to  guardians,  and  to 
youth,  and  to  society,  than  comes  in  the  cold  abstract  from  puliiits." 
To  the  justice  and  correctness  of  these  remarks,  all  who  have  had  ex- 
perience in  the  annals  of  crime  can  bear  testimony.  It  is  only  at  the 
present  terra  of  the  court  that  we  have  seen  it  proven  that  an  offender, 
a  short  time  before  the  perpetration  of  a  horrid  murder,  iiuiuired  of  a 
groceiy-keeper,  what  kind  of  liipior  would  make  him  drunk  soonest, 
and  swallowed  thereupon  a  bumper  of  brandy.  We  have  had  three 
cases  of  murder,  and  one  (;f  an  assault  with  intent  to  murder,  before  us 
at  this  term  of  the  court,  in  every  one  of  which  there  were  convictions  in  the 
Circuit  Court,  and  atlirinances  in  this  ;  every  one  of  which  is  of  aggravated 
character,  and  in  every  one  of  which  the  perpetrator  at  the  time  of  the 
commission  of  the  offence  was  laboring  under  dementia  affcctata^  drunken- 


1  4  Rep. 

-  B.  1  ch.  1,  sec.  6. 
•'  p.  26. 


«  Vol.  1,  p.  7. 

'•>  Mart.  &  Yerg.  U7,  U9. 


648 


imUNKENNESS. 


Pirtk-  r-.  St-it<'. 


ness ;  an  awful  illustration  of  the  necossity  of  holding  the  law,  as  it  has 
been  adjudged  uixm  this  subject.     There  is,  in  our  judgment,  no  con- 
flict of  authority  upon  this  i)oint  of  law ;  every  case  which  may  have 
such  Ji[)pearancc,  heing  a  case  of  exception  in  the  application  of  the 
rule,  or  a  case  of  no  authority  upon  the  subject.     Lord  Hale  in  his 
work  before  referred  to,'  says:   "If  by  means    of    drunkenness,  an 
.  habitual  or  fixed  madness  be  caused,  that  will   excuse,  though  it  be 
contracted  by  the  vice  and  will  of  the  party;  for  this  habitual  or  fixed 
frenzy  puts  a  man  in  the  same  condition,  as  if  it  were  contracted  at  first 
involuntarily."     And  it  was  to  this  principle  the  circuit  judge  was  allud- 
ing when  he  charged  the  jury  in  the  present  case,  that  the  drunkenness 
of  the  prisoner  could  not  be  taken  by  them  into  consideration,  unless 
he  were  so  far  gone  as  to  be  unconscious  of  what  he  was  doing,  and  did 
not  know  right  from  wrong ;  in  saying  which  he  put  the   case  most 
favorable  for  the  prisoner,  for  a  man  may  be  intoxicated  so  as  to  be  un- 
conscious of  what  he  is  doing  and  not  know  right  from  wrong ;  and  yet 
not  have  contracted  an  habitual  and  fixed  frenzy,  the  result  of  intemper- 
ance,  of  which  Lord  Hale  is  speaking  above.     The  case  of  Rex  v. 
Grindle;/,  decided  at  Worcester,-  by  IIolhoyd,  J.,  not  reported,  but  re- 
ferred to  by  Russell  in  his  works  upon  Crimes, ^  and  now  insisted  upon 
by  tiie  prisoner  as  putting  the  circuit  judge  in  the  wrong  in  his  charge 
to  the  jury,  and  holding  different  princii)les  upon  this  subject,  is  ex- 
pressly overruled  by  1*aukk  and  Littleuai.k,  Judges,  in  the  case  of  Bex 
V.  Carroll,'^  and  if  it  were  not,  it  is  an  anomalous  case ;  and  perhaps 
was  not  intended  or  considered  b}'  IIoi.ifOYO,  to  be  in  conflict  with  prin- 
ciples so  well  and  so  long  settled.     The  case  as  stated  by  Russell,  holds 
that,  "  though  voluntary  drunkenness  cannot  excuse  from  the  comniis 
sion  of  crime,  j-et  when  upon  a  charge  of  murder,  the  material  question 
is  whether  an  act  was  premeditated,  or  done  only  with  sudden  heal  and 
impulse,  the  fact  of  the  part}'' being  intoxicated  is  a  circumstance  ])roper 
to  be  taken  into  consideration."     Now,  in   relation  to  this  principle  as 
thus  laid  down,  it  may  be  observed  that  Cises  may  arise  even  of  mur- 
der at  common  law,  in  which  it  would  be  proper  to  receive  ruch  proof 
as  explanatory  of  intention.     To  constitute  murder  at  common  law,  the 
killing  must  have  been  done  with  malica  aforethought ;  the  existence  of 
this  malice  necessarily  implies  the  absence  of  all  circumstances  of  jus- 
tification, excuse,  or  mitigation  arising  from  adequate  provocation  ;  and 
this  malice  is  either  express  or  implied  ;  express  when  it  has  been  per- 


•  Partl.cli.  4. 
2  Sum.  Ass.  1819. 


3  p.  8. 

<  7  C.  A  P.  145. 


DiaMvKNM:.SS    NO    DErKNCK. 


(549 


The  Limits  of  tlu;  Rule. 


w,  as  it  has 
nt,  no  con- 
h  may  have 
tioii  of  tho 
Hale  in  his 
ciuiess,  an 
'Ugh  it  be 
h1  or  fixed 
ted  at  first 
was  alliid- 
"unkenness 
ion,  unless 
g,  and  did 
case  most 
i  to  be  un- 
;  and  jot 
intemper- 
)f  Hex  V. 
1,  but  re- 
sted upon 
is  charge 
ct,  is  ex- 
;e  of  Hex 
i  perhaps 
nth  prin- 
pll,  holds 
comniis 
question 
heal  and 
e  i)ropcr 
iiciple  as 
of  mur- 
ch  proof 
law,  the 
tence  of 
of  jus- 
)n ;  and 
3en  per- 


petrated l\y  poison.  l\'ing  in  wait,  or  other  deliberate  and  jjremeditated 
manner,  inii)licd  from  the  nature  of  the  weapon,  the  violence  of  the  as- 
sault, and  the  inackniuacy  of  tlie  provocation.     It  may  become  impor- 
tant in  a  case  to  kntnv  whether  poison  wliich  has  l)een  iuibibed,  was 
administered  knowingly  and  designedly,  or  accidentally;  and  if  it  be 
wilful,  which  it  is  in  the  case  of  the  administration  of  a  medicine,  there 
being  two  on  the  table,  one  a  poison,  the  other  not,  and  the  poison  being 
administered,  is  not  the  fact  that  the   person  who  administered  it,  was 
drunk  at  the  time,  legitimate  proof  for  tlio  pnrimse  of  showing  that  it 
was  a  mistake  which  a  drunken  man  might  make,  though  a  sober  one 
would  not?     This  would  not  be  to  i)rotect  him  from  the  punishment  for 
this  crime,  but  to  show  that  he  had  not  given  the  poison  premeditatedly, 
'.nd  therefore  was  guilty  of  no  crime.     So  if  the  question  be  wiiether 
the  killing  is  a  murder  or  manslaughter,  the  defence  being  adecpiate 
|)rovocation,  and  it   be  doubtful  whether  the  blow  be  str.ick  upon  the 
provocation  or  upon  an  old  grudge,  it  seems  to  us  proof  that  the  pris- 
oner was  drunk  when  he  struck  the  blow  is  legitimate,  not  to  mitigate 
the  offence,  but  in  explanation  of  the  intent,  that  is  whether  the  blow 
was  struck  upon  provocation,  or  upon  the  old  grudge  ;  for  the  law  onl}' 
mitigates  the  offence  to  manslaughter,  upon  adequate  provocation,  out 
of  compassion  to  human  frailty ;  and  therefore,  though  there  be  ade- 
(luate  cause  for  such  mitigation,  yet  if  in  point  of  fact,  one  avail  himself 
of  it  to  appease  an  old  grudge,  it  is  murder,  and  not  manslaughter ;  and 
in  all  such  cases  tiie  question  necessarily  is,  whether  the  blow  was 
stricken  premeditatedly,  or  upon  the  sudden  heat  and  impulse  produced 
by  the  provocation,  and  the  fact  of  the  self-possession  of  the  perpetrator 
of  the  crime,  is  very  material  in  a  conflict  of  proof  upon  the  subject. 
If  this  be  the  intent  of  the  opinion  of  Hoi.uoyd  in  the  case  of  Rex  v. 
Grindley,  we  are  not  prepared  to  hold  that  it  is  not  law.     But  if  it  be 
understood  to  hold  that  a  killing  maj'  be  mitigated  from  murder  to  man- 
slaughter in  consequence  of  the  drunkenness  of  the  perpetrator,  thereby 
making  that  adequate  provocation,  in  the  case  of  a  drunken  man,  which 
could  not  be  so  in  th^i  case  of  a  sober  one,  we  are  prepared  to  lutld  with 
Pauke  and  Litti.eoale,  that  it  is  not  law.      The    case  of    Siran   v. 
State  ^  has  also  been  relied  upon  as  containing  doctrine  adverse  to  that 
as  above  stated,  upon  the  subject  of  drunkenness  as  a  defence  in  crimi- 
nal cases.     This  is  not  so.     That  case  expressly  recognizes  the  correct- 
ness of  the  proposition  upon  this  subject  as  laid  down  in  this  opinion, 
with  an  exception  which  necessarily  exists  under  our  statute  classing 


'  4  Hump.  136. 


650 


DKUNKENNK.SS. 


I'irtli!  r.  State. 


murder  into  two  degrees.  The  judge  who  delivered  tlie  opinion  in  that 
case,  says:  "  The  court  was  asked  to  charge  as  a  matter  of  law,  that 
drunkenness  would  reduce  the  crime  of  murder  in  the  first  degree,  to 
that  of  murder  in  the  second  degree.  The  court,  in  reply,  said 
that  drunkenness  is  no  excuse  or  justification  for  any  crime.  The 
legal  c-orrectni'ss  of  the  general  statement  of  the  court  is  abun- 
dantly sustained  by  a  long  and  unshaken  series  of  authorities  in  ancient 
and  modern  times,  and  by  none  more  strongly-  and  fully  than  by  this 
court,  in  the  case  referred  to  in  ]\Iartin's  &,  Yei'ger's  Reports.  "What- 
ever ethical  philosophy  may  make  of  the  matter,  such  prol)ably  for  stern 
reasons  of  policy  and  necessity,  will  ever  remain  tlie  doctrine  of  criminal 
courts.  But  although  drunkenness,  in  point  of  law,  constitutes  no  ex- 
cuse or  justification  for  crime,  still,  wht  ii  the  nature  and  essence  of  a 
crime  is  made  to  depend  by  law,  upon  tiie  peculiar  state  and  condition 
of  the  criminal's  mind  at  the  time,  and  with  reference  to  the  act  done, 
drunkenness,  as  a  matter  of  fact  affecting  such  state  and  condition  of 
the  min<l,  is  a  proi)er  subject  for  consideration  and  inquiry  by  the  jur}'. 
The  question  in  such  case  is,  wh:jt  is  the  mental  status?  Is  it  one  of 
self-possession  favorable  to  the  formation  of  a  fixed  purpose,  b}'  de- 
liberation and  premeditation,  or  did  the  act  spring  from  existing  passion 
excited  by  inadequate  provocation,  acting,  it  mny  l)e,  on  a  peculiar 
temperament,  or  upon  one  already  excited  by  aident  spirits.  In  such 
case  it  matters  not  that  the  provocation  was  inadecjuate,  or  the  spirits 
voluntarily  drank ;  the  question  is,  did  the  act  proceed  from  sudden 
passion,  or  from  deliberation  or  premeditation.  What  was  the  mental 
status  at  the  time  of  the  act,  and  with  reference  to  tlio  ti^t?  To  regard 
the  fact  of  intoxication  as  meriting  consideration  in  such  a  case,  is  not 
to  hold  that  drunkenness  will  excuse  crime,  but  to  inquire  whether  the 
very  crime  which  the  law  defines  and  punishes,  has  been  in  point  of  fact 
committed.  If  the  mental  status  required  by  law  to  constitute  crime  be 
one  of  deliberation  and  premeditation,  and  drunkenness  or  other  cause 
excludes  the  existence  of  such  mental  state,  then  the  crime  is  not  excused 
by  drunkenness  or  such  other  cause,  but  has  not  in  fact  been  committed. ' ' 
This  reasoning  is  alone  applicable  to  cases  of  murder  under  our  act 
of  1820,1  which  provides  "  that  all  murder  committed  by  means  of  poi- 
son, l3Mng  in  wait,  or  any  other  kind  of  wilful,  delil)erate,  malicious,  and 
premeditated  killing,  or  which  shall  be  committed  in  the  perpetration, 
or  attempt  to  perpetrate  any  arson,  rape,  robber}-,  burglary,  or  larceny, 
shall  be  deemed  murder  in  the  first  degree,  and  all  other  kinds  of  mur- 
der shall  be  deemed  murder  in  the  second  degree."     Now  this  is  draw- 


i:hiip.  2:]. 


TJIE    DEOHEES    OF    Ml  UOEll. 


(551 


Druiikeuni'ss,  whin  Rt>li'vaiit. 


ion  in  that 
'  law,  that 
degree,  to 
eply,  said 
ime.     The 
.  is  abun- 
in  ancient 
all  by  this 
3.     Wliat- 
''  for  stern 
f  criminal 
tcs  no  ex- 
ence  of  a 
condition 
act  done, 
iidition  of 
tlie  jury. 
1  it  one  of 
se,  by  de- 
g  passion 
.  peculiar 
In  such 
he  spirits 
Q  sudden 
le  mental 
ro  regard 
so,  is  not 
[?ther  the 
it  of  fact 
crime  be 
icr  cause 
;  excused 
mitted." 
r  our  act 
IS  of  poi- 
ous,  ami 
etratioM, 
larceny, 
of  mur- 
13  draw- 


ing a  distinction  unknown  to  the  common  law,  solely  with  a  view  to  the 
punishment;  murder  in  the  first  degree  l)eing  punishable  with  death, 
and  murder  in  the  second  degree  by  confinement  in  the  i)enitentiary. 
In  order  to  inflict  the  punishment  of  death,  the  murder  must  have  been 
committed  wilfully,  deliberately,  maliciously,  and  i)rcraeditatedly ;  this 
state  of  mind  is  conclusively  proven  when  the  death  has  been  inflicted 
))y  poison,  or  by  lying  in  wait  for  that  purpose  ;  but  if  neither  of  these 
concomitants  attend  the  killing,  then  the  state  of  niind  necessary  to 
constitute  murder  in  the  first  degree,  by  the  wilfulness,  the  deliberation, 
the  maliciousness,  the  premeditation,  if  it  exist,  must  be  otherwise 
proven  ;  and  if  it  api)ear  that  there  was  sudden  provocation,  though  not 
of  such  a  character  as  at  common  law,  to  mitigate  the  offence  to  man- 
slaughter, and  the  killing  thereupon  takes  place  by  sudden  heat  and 
passion,  and  without  deliberation  and  premeditation,  although  the  com- 
mon law  would  presume  malice,  yet  it  is  under  the  statute  murder  in 
the  second  degree,  and  not  to  be  punished  by  death. 

Then  it  will  fiequently  happen  necessarily,  when  the  killing  is  of  such 
a  character  as  the  connnon  law  designated  as  mui'dcr,  and  it  has  not 
been  perpetrated  b^'  means  of  poison,  or  by  lying  in  wait,  that  it  will  be 
a  vexed  question  whether  the  killing  has  been  the  result  of  sudden  pas- 
sion, producetl  l)y  a  cause  inadequate  to  mitigate  it  to  manslaughter, 
but  still  suflflcient  to  mitigate  it  to  murder  in  tiie  second  degree,  if  it  be 
really  the  true  cause  of  excitement,  or  whether  it  has  been  the  result  of 
deliberation  and  premeditation  ;  and  in  all  such  cases  whatever  fact  is 
calculated  to  cast  light  upon  the  menial  status  of  the  offender  is  legiti- 
mate proof;  and,  among  others,  the  fact  that  he  was  at  the  timednnik, 
not  that  this  will  excuse  or  mitigate  the  offence  if  it  Avere  done  wilfully, 
deliberately,  maliciously,  and  premeditatedly  (which  it  might  well  be, 
though  the  perpetrator  was  drunk  at  the  time)  ;  but  to  show  that  the  kill- 
ing did  not  spring  from  a  premeditated  purpose,  but  sudden  passion 
excited  l)y  inadequate  provocation,  such  as  might  reasonal)ly  be  ex- 
pected to  arouse  passion  and  heat  to  the  point  of  taking  life,  without 
premeditation  and  deliberation.  This  distinction  never  can  exist  except 
between  murder  in  the  first  and  murder  in  the  second  degree  under  our 
statute.  It  is  upon  such  distinction  the  remarks  of  the  judge  in  the 
case  of  Simn  v.  State  are  based,  and  hy  it  they  are  to  be  confined. 
Thus  far  we  recognize  their  justness,  but  can  extend  them  no  further. 

If  a  drunken  man  commit  wilful,  deliberate,  malicious,  and  premedi- 
tated murder,  he  is  in  legal  estimation  guilty  as  if  he  were  sober.  If 
he  do  it  by  means  of  ])oison  knowingly  administered,  or  b}'  lying  in 
wait,  these  facts  are  as  conclusive  evidence  against  him  as  if  he  had 
been  sober.     If  from  the  proof,  in  absence  of  such  lying  in  wait,  or 


(i52 


DKUN  KEN  NESS. 


Cartwri^ht  v.  State. 


administering  tlie  poison,  it  shall  appear  that  the  killing  was  wilful, 
deliberate,  malicious,  and  premeditated,  he  is  guilty  as  though  he  was 
sober.  But  in  ascertaining  the  fact  of  such  intention,  all  the  concomi- 
tant circumstances  shall  be  heard,  in  order  to  enable  the  jury  to  judge 
whether  such  deliberate,  wilful,  malicious,  and  premeditated  design 
existed,  or  whether  the  killing  was  not  the  result  of  sudden  heat  and 
passion,  i)roduced  by  a  sudden  and  unexpected  controversy  between 
parties,  but  of  such  a  character  as  not  to  mitigate  the  slaying  to  man- 
slaughter. As  between  the  two  offences  of  murder  in  the  second 
degree,  and  manslaughter,  the  drunkenness  of  the  offender  can  form  no 
legitimate  matter  of  inquiry ;  the  killing  being  voluntary,  the  offence  is 
necessarily  murder  in  the  second  degree,  unless  the  provocation  were  of 
such  a  character  as  would  at  common  law  constitute  it  manslaughter, 
and  for  which  latter  offence  a  drunken  man  is  equally  responsible  as  a 
sober  one. 

We  think  that  the  circuit  judge  committed  no  error  in  his  charge  to 
the  jury  in  this  case,  and  affirm  the  judgment. 


DRUNKENNESS  — DEGREKS  OF  MURDER— DELIBERATION  AND  PRE- 
MEDITATION. 

Cautwkigiit  V.  State. 


[8  Lea,  377.] 

Jn  the  Supreme  Court  of  Tennessee,  December  Term,  1881. 

lion.  James  W.  Dkaderick,  Chief  Justice. 


"  Peter  Ti'rxey, 

"  Robert  McFarland, 

•'  William  F.  Cooper, 

"  Thomas  J.  Freeman, 


Judges. 


Drunkenness  —  Degrees  of  Murder  — Deliberation  and  Premeditation. —If  a  per- 
son is  Ro  drunk  as  to  be  incapable  of  foi  ining  a  piemcditated  and  deliberate  intent  to 
kill,  ho  cannot  bo  guilty  of  miiiacr  in  »iic  flrst  degree.  But  where  drunkenness  does 
not  exist  to  this  extent,  the  jury  mayco.  ider  itwithalltho  other  facts  to  see  (1)  whether 
the  purpose  to  kill  was  formed  in  pass  produced  by  a  cause  operating  upon  a  mind 
excited  with  liquor  — not  such  adequi  e  provocation  as  to  reduce  the  crime  to  man- 
slaughter,—but  it  may  reduce  it  to  i,  rder  in  the  second  degrev.  (2)  whether  the 
purpose  was  formed  with  deliberation  and  premeditation,  for  a  drunken  man  may  be 
guilty  of  murder  in  the  first  degree. 


Appeal  in  Error  from  the  Circuit  Court  of  Macon  County. 

McCoNNELL,  J. 


N.  W. 


was  wilful, 
igh  he  was 
c  coiicomi- 
V  to  judge 
ted  desiiin 
1  boat  and 
ly  between 
ig  to  man- 
tbe  second 
in  form  no 
!  offence  is 
on  were  of 
islaughter, 
isible  as  a 

charge  to 


lND  PRE- 


'81. 


—It  a  per- 
te  intent  to 
nncss  does 
(1)  whether 
pon  a  mind 
me  to  man- 
■hether  the 
lan  may  be 


N.  W. 


CAUTWIUGUT    V.  STATK 


(55;} 


TIk;  KiU'ts  ill  the  Case 


J.  L.  Roach,  and  J.  C.  Guild,  for  Cartwight. 

Atlorney-Cien(!ral  Lea,  for  the  State. 

McFarland,  J.,  delivered  the  opinion  of  the  court. 

The  prisoner  appeals  to  this  court  from  a  judgment  of  death  pro- 
nounced against  biin  by  the  Circuit  Court  of  Macon  County  for  the 
murder  of  Hugh  Sanders. 

The  prisoner  was  indicted  in  said  court  in  January,  1879,  for  stealing 
a  demijohn  of  wine  from  a  church,  was  tried  and  acquitted,  in  April, 
187!) ;  the  deceased  was  a  witness  against  him  on  the  trial.  Out  of  this 
affair  the  animosity  between  the  paities  probably  originated.  They 
were  both  young  men,  the  prisoner  living  in  the  town  of  Lafayette  — 
the  deceased  within  a  mile  or  two  of  the  town.  Sometime  after  the 
trial  —  precisely  how  long  is  not  shown  —  the  prisoner  left  the  county 
and  remained  away  until  a  short  time  before  the  killing.  It  is  claimed 
for  the  defence  that  be  left  from  fear  of  the  deceased.  There  is  proof 
l»y  several  witnesses,  that  from  the  time  of  the  trial  until  shortly  before 
the  killing  the  deceased  made  threats  against  the  prisoner  on  several 
occasions.  In  only  one  instance  does  it  appear  that  the  threat  was 
communicated  to  the  prisoner, — this  was  before  he  left  the  county.  The 
threats  in  some  instances  were  in  substance  that  the  deceased  had  heard 
that  the  prisoner  was  going  to  charge  the  stealing  the  wine  on  him,  and 
if  he  did  he  would  kill  him.  On  other  occasions,  he  said  they  could  not 
both  live  in  the  same  county;  that  he  expected  a  diniculty  with  him 
and  he  would  be  read}^  for  him.  One  threat  was  proven  to  have  been 
made  the  day  before  the  killing;  but  ns  alretuly  stated,  there  is  no  proof 
that  any  of  these  threats  were  communicated  to  the  prisoner  except  in 
the  one  instance.  One  witness  proves  that  a  week  or  ten  da3's  1)efore 
the  killing  the}'  met  at  a  spring  in  Lafayette,  when  the  deceased  made 
some  hostile  demonstration,  and  as  the  witness  thought,  was  about  to 
draw  a  knife,  and  intimated  that  he  would  see  the  prisoner  again. 

The  killing  occurred  on  the  l.'Jth  of  Octolier,  1880,  in  the  town  of 
Lafayette.  An  hour  or  two  before  the  killing,  several  young  men, 
including  the  prisoner  and  deceased,  were  in  front  of  Johnson's  notel. 
Thry  were  engaged  in  playful  conversation.  The  prisoner  had  a  gun, 
and  in  the  language  of  the  witnesses  "was  drinking"  or  had  been 
drinking.  One  of  the  young  men  asked  him  "  if  carrying  a  gun  made 
him  drunk,  if  it  did  he  would  get  him  one,"  and  deceased  said,  "■  if  it 
makes  you  drunk,  pass  it  around  and  we  will  all  take  a  spree  "  The 
prisoner  did  not  seem  to  take  offence  at  the  language.  The  company 
separated,  the  prisoner  and  deceased  going  in  different  directions. 
Within  an  hour  or  two,  deceased  and  two  other  j'oung  men  returned, 


CiU 


DUrNKKNNi^SS. 


Cartwriulit  v.  State. 


and  with  Johnson,  the  proprietor  of  the  house,  were  on  tl»e  pavement  in 
front  of  tlic  hotel,  tlie  deceased  sitting  in  a  ehair  leaning  back  against 
the  house.  The  prisoner  was  seen  coming  towards  them,  still  carrying 
the  gun.  Johnson  asked  deceased  if  he  was  not  uneasy  for  fear  the 
prisoner  wouhl  attack  him,  he  said:  "  No,  we  had  been  at  outs,  but  we 
liavc  agreed  to  drop  it,  and  we  speak  when  we  pass."  Prisoner  came 
ui),  when  near  where  the  parties  were  sitting,  turned  a  little  off  the 
pavement  and  came  ar  nind  directly  in  front  of  the  deceased,  brought 

down  his  gun,  and  said,    "'G — d  d n  you,   I  sujjpose  you  have  got 

something  against  me,"  and  instantly  iired  and  shot  the  deceased 
through  the  body,  from  the  effects  of  which  he  died  in  a  few  hours.  It 
is  fully  proven  by  the  three  witnesses  present  that  the  deceased  was 
'Uiarmed  and  making  no  demonstration  whatever,  —  the  gun  was  very 
)se  to  him  when  fired.  The  prisoner  walked  a  short  distance, 
;i.  ji".  started  to  run  aeioss  a  field  but  was  captured  and  ])rought  back. 
It  was  proven  by  nearly  all  the  witnesses  that  the  prisoner  was  in  the 
hobit  <  f  Vinking  too  much.  The  father,  mother  and  sister  of  the  prls- 
uULr  pro^'o  Hiai  he  had  been  drinking  for  perhaps  three  years,  and  their 
testimony  Indicates  that  at  times  he  was  subject  to  delirium  tremens. 
They  express  the  opinion  that  he  was  not  of  sound  mind  ;  but  the  effect 
of  their  testimony  is  that  he  at  times  had  delirium  tremens  from  the  use 
of  ardent  spirits.  The  other  witnesses  say  he  was  sane  on  the  day  of 
the  killing,  and  in  fact  was  sane  at  all  times.  His  father  says  he  was 
wild  and  very  drunk,  and  out  of  his  mind  on  the  day  of  the  killing,  — 
worse  than  he  had  seen  him  for  months.  The  mother  sa3's  he  at  times 
seemed  very  much  depressed,  and  said  deceased,  "  charging  him  with 
stealing  the  wine,  had  put  him  below  the  respect  of  decent  people." 
The  witnesses  pretty  much  all  agree  that  the  prisoner  "was  drink- 
ing" the  day  of  the  homicide,  but  to  what  extent  he  was  under  the 
influence  of  liquor  tlieir  testimony  differs  somewhat.  The  witnesses  for 
the  State  pretty  generally  say  that  he  was  "  drinking,  but  not  drunk  ;  " 
but  that  he  was  to  some  extent  under  the  influence  of  liquor  fully 
appears.  Prisoner's  father,  who  was  postmaster,  proves  that  shortly 
before  the  killing  the  deceased  came  into  his  office,  and  asked  for  a 
letter,  had  his  hands  in  his  pockets,  looked  all  around  and  walked  hur- 
riedly off.  In  a  few  moments  prisoner  came  in,  witness  told  him  that 
deceased  had  been  in,  had  his  hands  in  his  pockets,  that  ho  did  not  like 
his  conduct,  and  feared  mischief,  and  told  prisoner  that  he  had  better 
go  home ;  he  said  he  would  as  soon  as  ho  saw  Willie  Claiborne.  He 
went  out  and  shortly  afterwards  the  killing  occurred.     A  very  short 


DRUXKKXNESS   AS   A    UKFENCE. 


C55 


Cliargf  of  the  Court 


vement  in 
:'k  against 
1  carrying 
r  fear  the 
ts,  but  we 
ner  came 
le  off  the 
,  brought 
have  got 
deceased 
ours.     It 
ised    was 
was  very 
distance, 
ht  back. 
IS  in  tlie 
the  pris- 
md  their 
tremens, 
he  effect 
I  the  use 
!  day  of 
i  he  was 
lling,  — 
at  times 
im  with 
)eople." 
I   drink- 
ider  the 
sses  for 
•unk;" 
)r  fully 
shortly 
i  for  a 
k1  hur- 
ra that 
ot  like 
better 
e.     He 
'  short 


time  before  the  killing,  prisoner  was  seen  looking  in  at  Clail)orne'3 
store,  as  if  looking  for  some  one. 

This  is  a  sufllciont  outline  of  the  case  for  a  proper  understanding  of 
the  (juostions  presented  for  our  decision. 

Upon  the  subject  of  drunkenness  the  court  charged  the  jury  as  fol- 
lows: "Voluntary  drunkenness  is  no  excuse  for  tlie  commission  of  a 
crime,  but  it  may  be  looked  to  to  ascertain  whether  the  offence  has  been 
committed  or  not.  We  have  seen  that  to  commit  murder  in  the  first 
degree  the  killing  must  be  done  wilfully,  deliberately,  premeditately, 
and  Avith  malice  aforethought.  Tliis  reciuires  certain  states  of  the  mind, 
and  tlie  question  of  the  intoxication  of  the  prisoner  may  be  looked  to,  to 
see  whether  at  the  time  of  the  killing  he  had  these  states  of  mind.  Was 
he  so  intoxicated  that  he  Avas  incapable  of  giving  the  consent  of  his 
will  to  the  killing,  or  of  deliberating  and  premeditating  the  deed  ;  if  he 
was,  then  he  cannot  be  guilty  of  murder  in  the  first  degree.  But  if  he 
was  capable  of  willing,  deliberating  and  premeditating  the  deed  then  he 
is  capable  of  committing  murder  in  the  first  degree,  notwithstanding  his 
intoxication,  and  it  can  be  no  excuse  for  him.  The  only  effect  that 
voluntary  drunkenness  can  have  in  any  event,  is  to  reduce  the  crime  from 
murder  in  the  first  toniurder  in  the  second  degree.  It  is  never  ground 
of  entire  justification,  except  it  amounts  to  insanity,  as  will  hereafter  be 
explained  to  j'ou." 

Again  the  judge  saj-s:  "  If  you  believe,  beyond  a  reasonable  doubt, 
he  (the  prisoner)  shot  Sanders  in  malice,  not  intending  to  kill  him  but 
(lid  do  it,  or  if  you  find  he  was  so  intoxicated  that  he  was  not  capable 
of  that  deliberation  or  premeditation  necessary  to  make  murder  in  the 
first  degree,  or  you  have  a  reasonable  doubt  how  this  is,  you  should  find 
him  guilty  of  murder  in  the  second  degree."  This  is  the  entire  charge 
upon  this  subject. 

In  the  case  of  Haile  v.  State,  ^  the  charge  was  as  follows :  ' '  Voluntary 
drunkenness  is  no  excuse  for  the  commission  of  crime,  on  the  contrary 
it  is  considered  by  our  law  as  rather  an  aggravation.  Yet  if  the  defend- 
ant was  so  deeply  intoxicated  by  spirituous  liquors  at  the  time  of  the 
killing  as  to  be  incapable  of  forming  in  his  own  mind  a  design,  deliber- 
ately and  premeditately  to  do  the  act,  the  killing  under  such  a  state  of 
intoxication  would  only  be  murder  in  the  second  degree." 

Upon  a  conviction  for  murder  in  the  first  degree  the  above  charge  was 
held  to  be  erroneous.  Judge  Green  in  delivering  the  opinion  of  the 
court,  quotes  from  Judge  Reese  in  Swan  v.  State,^sis  follows:  "  But  al- 


•  a  Humph.  154. 


4  Humph.  136. 


656 


DULXKENXKSS. 


Ciirtwrifihl   r.  State. 


though  drunkenness  in  point  of  hiw  constitutes  no  cxouse  or  justification 
for  crime,  still  when  the  luilnre  and  essence  of  the  crime  is  made  to  de- 
pend by  law  upon  a  peculiar  state  and  condition  of  a  criminal's  mind  at 
the  time  with  reference  to  the  act  done,  drunkenness  as  a  matter  of  fact 
affecting  such  state  and  conditi(Ju  of  mind,  is  a  proper  subject  for  con- 
sideration and  inipiiry  by  the  jury.  The  question  in  such  case  is  what 
is  the  mental  status?  Is.it  one  of  self-possession  favorable  to  fixed  pur- 
pose of  deliberation  and  premeditation,  or  did  the  act  spring  from  ex- 
isting passion,  excited  by  inadequate  provocation  acting  it  may  1)6  on  a 
peculiar  temperament  or  upon  one  already  excited  by  ardent  spirits  ?  In 
s'lch  case,  it  matters  not  that  the  provocation  was  inadequate,  or  the 
spirits  voluntarily  drank  ;  the  question  is  did  the  act  proceedfrom  sudden 
passion  or  from  deliberation  or  premeditation,  what  was  the  mental 
status  at  the  time  of  the  act  and  with  reference  to  the  act?  To  regard 
the  fact  of  drunkenness  as  meriting  consideration  in  such  a  case  is  not 
to  hold  that  drunkenness  will  excuse  crime,  but  to  inquire  whether  the 
very  crime  which  the  law  defines  and  punishes  has  been  in  fact  com- 
mitted." Judge  Green  says:  "  In  these  remarks  the  court  intended  to 
be  understood  as  distinctly  indicating  that  a  degree  of  drunkenness  by 
which  the  party  was  greatly  excited,  and  which  produced  a  state  of  mind 
unfavorable  to  deliberation  and  premeditation  although  not  so  excessive 
as  to  render  the  party  absolutely  incapal)le  of  forming  a  deliberate  pur- 
pose, might  be  taken  into  consideration  by  a  jury  in  determining  whether 
the  killing  was  done  with  deliberation  or  premeditation."  Judge  Green 
also  quotes  from  Judge  Tijui.et,  in  Pirtle  v.  State,^  to  the  effect  that  it 
will  often  b«  aquestiou  "  whether  the  killing  has  been  the  result  of  sudden 
passion  excited  by  a  cause  inadequate  to  reduce  it  to  manslaughter,  but 
still  sufficient  to  mitigate  it  to  murder  in  the  second  degree.  ♦  *  » 
In  such  cases,  whatever  will  throw  light  upon  the  mental  status  of  the 
offender  is  legitimate,  and  among  other  things  the  fact  that  he  was  drunk  ; 
not  that  this  will  excuse  or  mitigate  the  offence,  if  it  was  done  wilfuUj', 
deliberately,  maliciously  and  premeditatedly  (which  it  might  well  be 
though  the  perpetrator  was  drunk),  but  to  show  that  the  killing  did  not 
spring  from  a  premeditated  purpose,  but  sudden  passion  excited  by  in- 
adequate provocation  such  as  might  reasonably  be  expected  to  arouse 
sudden  passion  and  heat  to  the  point  of  taking  life  without  premeditation 
and  deliberation."  Judge  Green,  in  commenting  on  the  above  extract, 
in  substance  and  effect  says  ' '  the  degree  of  drunkenness  which  will  shed 
light  on  the  mental  status  of  the  offender,  is  not  alone  that  excessive 


tl 


I  9  Humph. 


DEIJUKKS    Ol"    MlUDKi:. 


():)7 


Dniuki'iiiu'SM  llcU'vaiit. 


staU-  (;f  intoxication  which  deprives  the  party  of  the  capacity  to  frame 
in  his  mind  a  design  tlehberately  and  pi eniedilatt'dly  to  do  an  act,  but 
in  addition  any  degree  of  intoxication  tiiat  may  exist,  in  order  tliatthe 
jury  m:>y  judge  invievr  of  such  intoxication,  in  c<mnection  with  all  tlie 
facts  and  circunistanci's,  wliether  the  act  was  premeditatedly  and  de- 
liberately done."  P^)llowing  these  authorities  is  the  case  of  Lancaster 
V.  State,^  which  "was  an  indictment  for  an  assault  to  commit  murder  in 
the  first  degree,  this  court  held  the  following  charge  to  be  erroneous,  to 
wit:  "If  defendant  had  been  drinking  nuich  or  little  it  would  be  a  cir- 
cumstance for  tiio  jury  to  look  to  for  the  purpose  of  ascertaining 
whether  the  defendant's  mind  was  so  influenced  by  luiuor  as  to  incapacitate 
him  from  forming  a  deliberate  and  premeditated  design,  that  is,  his  mind 
so  much  influenced  by  liquor  as  to  be  incapable  of  contemplating  the  re- 
sult of  his  acts,  and  if  this  was  the  condition  of  his  mind  he  could  not  be 
convicted  of  an  assault  with  intent  to  commit  nnirder  in  the  first  degree  ; 
but  if  his  mind  was  not  in  that  condition  and  was  not  so  much  influenced 
by  liquor  to  as  to  prevent  him  fn;m  forming  a  deliberate  and  premedi- 
tated design,  drunkenness  would  then  be  no  excuse  and  would  not  lessen 
the  crime. 

The  rule  to  be  abstracted  from  those  cases  is  about  this :  if  drunken- 
ness exists  to  such  an  extent  as  to  render  the  defendant  incapable  of 
forming  a  i)remeditated  and  deliberate  design  to  kill,  then  of  course  he 
cannot  be  guilty  of  murder  in  the  first  degree;  still,  if  the  drunkenness 
be  not  of  this  extent,  nevertheless  the  jury  may  consider  this  drunken- 
ness in  connection  with  all  the  facts,  to  see  whether  the  purpose  to  kill 
was  formed  in  passion  produced  by  a  cause  operating  upon  a  mind  ex- 
cited with  liquor —  not  such  adequate  cause  as  would  reduce  the  killing 
to  manslaughter  —  l)ut  nevertheless  such  as  produced  passion  in  fact, 
and  reduce  the  killing  to  murder  in  the  second  degree  ;  or  whether,  not- 
withstanding the  drunkenness,  the  purpose  to  kill  was  formed  with  de- 
liberation and  premeditation,  for  a  drunken  man  may  be  guilty  of  mur- 
der in  the  first  degree  if  the  drunkenness  be  jiot  to  such  an  extent  as  to 
render  his  mind  incapable  of  deliberation  and  premeditation.  The  con- 
viction'for  murder  in  the  first  degree  was  affirmed  in  Swan's  Case^^ 
although  he  was  intoxicated  at  the  time. 

We  are  constrained  to  hold  upon  the  rule  as  thus  established  by  these 
authorities,  that  the  portion  of  his  Honor's  charge  above  set  forth  ia 
erroneous.  The  jury  were  correctl}'  told  that  if  the  prisoner  was  so  in- 
toxicated as  to  be  incapable  of  deliberating  and  premeditating  the  deed 


'  2  Lea,  573. 
42 


•  4  Uumpta.  136. 


658 


DIUJNKENNESH. 


Lancaster  n.  Stato. 


he  could  not  be  gnilty  of  murder  in  the  first  dejyrec  ;  on  t^«e  other  hand, 
if,  notwithstanding  his  intoxication,  he  •was  capable  of  deliberation  and 
premeditation,  then  he  might  be  found  guilty  of  murder  in  the  first  de- 
gree. This  was  all  will  enough  ;  but  the  error  is  in  making  the  whole 
effect  of  the  prisoner's  intoxication  in  reducing  the  killing  to  murder  in 
the  second  degree  depend  upon  whether  the  drunkenness  waste  such  an 
extent  as  to  render  tlie  prisoner  incapable  of  deliberation  and  premedita- 
tion ;  whereas  as  we  have  seen  a  degree  of  intoxication  short  of  this 
may,  when  taken  in  connection  with  the  other  facts,  show  that  the  killing 
resulted  from  a  puri)ose  formed  in  passion,  and  not  deliberately  and 
premeditatedly  ;  and  although  there  be  no  adequate  provocation  to  re- 
duce the  offence  to  manslaughter,  yet  if  in  this  mode  the  want  of  delib- 
eration and  premeditation  appear,  it  may  be  reduced  to  murder  in  the 
second  degree. 

In  a  case  involving  life  we  do  not  feel  at  liberty  to  overlook  this  error, 
whatever  we  might  think  of  the  facts.  The  prisoner  is  entitled  to  a  cor- 
rect exposition  of  the  law. 

The  judgment  must  therefore  be  reversed,  and  the  case  remanded  for 
a  new  trial. 


DRUNKENNESS  — DEGREES  OF    MURDER  — NEED    NOT  BE   «•  EXCES- 
sive "  to  be  an  excuse. 

Lancaster  v.  State. 

[2  Lea,  675.] 
In  the  Supreme  Court  of  Tennessee,  April  Term,  1S79. 
Hon.  James  W.  Deaderick,  Chief  Justice. 


PKTKR  TlUNEY, 

Robert  McFarland, 
William  F.  Coopkr, 
Thomas  J.  Freeman,  ^ 


»  Judges. 


DrunkranesB— Need  not  be  Excessive  to  be  an  Excuse.  —  Upon  a  trial  for  m  jrder  in 
the  first  degree  or  an  assault  with  intent  to  commit  murder  in  the  first  degree, drunken- 
ness to  any  extent  is  relevant.  Though  it  inny  not  be  so  excessive  as  to  render  the  pris- 
oner incapable  of  deliberating,  yet  it  may  have  excited  him  and  produced  a  state  ol 
mind  unfavorable  to  premeditation  and  deliberation. 

Appeal  from  the  Circuit  Couit  of  Henderson  County. 
E.  L.  Bullock,  for  Lancaster. 


DRUXKENXESS, 


(j^y 


The  Tcmu'sscc  ('uses  Kcviiwi-d. 


thcr  hand, 
ration  and 
le  first  de- 
',  the  whole 
murder  in 
to  such  an 
promrdita- 
5rt  of  this 
the  killing 
ratcly  and 
ition  to  re- 
it  of  delib- 
dcr  in  the 

this  error, 
d  to  a  cor- 

landed  for 


"  EXCES- 


9. 


Jrmjrder  in 
ee,drunken- 
iderthe  pria- 
id  a  state  ot 


f 


Attorney-General  Lee,  for  the  State. 
Dkadkimck,  C.  J.,  (lolivcrcd  the  opinion  of  the  court. 
The  defendant  was  convicted  for  assault  with  intent  to  commit  mur- 
der in  the  first  dcfireo,  and  sentenced  to  fifteen  years'  iinprisonnient  in 
the  pcnilentiary.     He  has  appealed  from  the  judgment,  and  assigns  er- 
ror in  the  charge  of  the  court. 

The  evidence  shows  that  the  prisoner  was  under  the  influence  of  liquor 
when  the  offence  was  committed.  The  circuit  judge  charged  the  ji.ry : 
"If  defendant  luid  been  drinking,  much  or  little,  it  would  be  a  circum- 
stance for  the  Jury  to  look  to  for  the  purpose  of  ascertaining  whether 
tlie  defendant's  mind  was  so  influenced  by  liquor  as  to  incapacitate  him 
from  forming  a  deliberate  and  premeditated  design,  that  is,  his  mind 
was  so  much  influenced  by  licpior  as  to  be  incapable  of  contemplating 
the  result  of  his  acts,  and  if  this  was  the  condition  of  his  mind,  he  could 
not  be  convicted  of  an  assault  with  intent  to  commit  nunder  in  the  first 
degree ;  but  if  his  mind  was  not  in  that  condition,  and  was  not  so  much 
influencec:  by  liiiuor  as  to  prevent  iiim  from  forming  a  deliberate  and 
premeditated  design,  drunkenness  would  then  be  no  excuse  and  would 
not  lessen  the  crime." 

In  Swan  v.  State,^  Judge  Rkesk,  while  very  strongly  stating  the 
doctrine  that  "  drunkenness  is  no  excuse  for  crime,"  adds  that  "  when 
the  nature  and  essence  of  a  crime  is  made  by  law  to  depend  upon  the 
peculiar  state  and  condition  of  the  criminal's  mind  at  the  time,  and  with 
reference  to  the  act  done,  drunkenness,  as  a  matter  of  fact,  is  a  proper 
subject  for  consideration  and  inquiry  by  the  jury.  The  question  in  such 
case  is,  what  is  the  mental  status?  Is  it  one  of  self-possession,  favora- 
ble to  the  formation  of  a  fixed  purpose  by  deliberation  and  premedita- 
tion, or  did  the  act  spring  from  existing  passion,  excited  by  inadequate 
l)rovocation,  it  may  be,  on  a  peculiar  temperament,  or  upon  cue  already 
excited  by  ardent  spirits?  " 

In  9  Humphrey, a  the  conviction  was  for  murder  in  the  second  degree, 
and  it  was  held  that  the  drunkenness  of  the  off'-iJer  in  the  case  of  mur- 
der in  the  second  degree,  or  manslaughter,  can  lu -m  no  matter  of  legit- 
imate inquiry,  but  that  it  is  material  where  the  inquiry  is  whether  the 
acts  were  done  with  deliberation  or  premeditation.  In  the  case  of  Haile 
V.  State,^  a  charge  very  similar  to  the  one  in  this  case  was  held  errone- 
ous. The  circuit  judge  had  instructed  the  jury :  "  If  defendant  was  so 
deeply  intoxicated  as  to  be  incapable  of  forming  in  his  mind  a  design 
deliberately  and  premeditately  to  kill,"  this  would  reduce  the  kUling 
to  murder  in  the  second  degree. 


4  Humph.  136. 


^  Pirtle  r.  State,  COS. 


11  Uumph.  164. 


GCO 


DRUNK  KNNESH. 


St.iti-  V.  Tiitro. 


Jiidjjjc!  r. KKK.N,  in  comiiicntinp;  on  tlio  opinion  of  .TikIlto  Rki'sk  in  the 
case  ill  I  llmiipii.,  sriys:  "  Tliii  court  iiili'inU'd  to  Ik;  uiitU'rstood  as  dis- 
tinctly iiidiciitliig  tliiit  a  doj;i'i'0  of  drunkcnncs.s  l)y  wliicli  the  party  was 
jjreatly  excited,  and  wliich  produced  a  statt>  of  mind  unfavorable  to  de- 
liberation and  premeditation,  altliou<i;h  not  so  exc">^sivc  as  to  render  tlio 
party  absolutely  incapal)lo  of  formiiiijr  u  delilu'  nrpose,  mi<j;ht  be 

taken  into  consideration   by  a  juiv  in  detennining  whether  the  killiiijj; 
were  done  with  premeditation   and  deliberation."     In  that  case,  as  in 
this,  the  Circuit  Court  told  the  jury  that  intoxication  could  not  thus  re 
duce  the  offence,  unless  it  existed  to  such  a  tlegree  as  to  render  the  of- 
fender absolutely  incapable  of  forming  such  a  design. 

All  the  cases  cited  hold  that  a  dr'.inken  man  may  premeditate  and 
deliberate,  yet  they  hold  that  tiie  evidence  of  the  fact  of  intoxication  is 
proper  to  go  to  the  jury,  when  they  are  to  find  whether  the  act  in  (pies- 
tion  was  done  with  deliberation  and  premeditation,  and  that  the  jury 
may  determine  whether  the  act  is  tlie  result  of  deliberation  and  premed- 
itation, or  of  passion  aroused  by  inadequate  provocation. 

We  are  of  opinion  that  the  charge  was  erroneous  in  the  particular  in- 
dicated  and  the  judgment  will  be  reversed. 


INTOXICATION— WHEN  NOT  RELEVANT  ON  DEGREE  OF  CRIME 

State  v.  Tatro. 


[50  Vt.  483.] 
In  the  Supreme  Court  of  Verviont,  January  Term,  1878. 


Hon.  HoMKR  E.  RovcK, 

"      Tl.MOTUY  r.  RkDI'IELD, 

"    Jonathan  Rosk, 

"    Walter  C.  Dixton, 


•  Judges. 


Intoxication  —When  not  Relevant  on  Degrree  of  Crime.  —  Where  a  murder  is  done  b;: 
some  kind  of  wilful,  deliberate  aud  premcUitatLMi  killiiijj;  other  than  by  means  of  poison 
or  lying  in  wait,  the  degree  of  the  offence  is  not  lessened  by  proof  that  at  the  time  ii 
was  committed  the  prisoner  was  intoxicntod,  jiny  more  than  it  would  be  if  it  had  been 
perpetrated  by  means  of  poison  or  by  lying  in  wait. 

The  prisoner  was  indicted  and  convicted  of  the  murder  of  Alice  But- 
ler.    He  appealed. 


r.sE  in  tho 
)(»(l  as  (lis- 
party  wns 
iblc  to  <!('- 
render  tlio 
,  miffht  bf 
the  killiiif:^ 
3aso,  as  ill 
ot  thus  rc- 
ler  the  of- 

iditnte  and 
xioiitioii  is 
■t  in  (ivioR- 
\t  tlie  jnry 
id  premed- 

rticular  in- 


CRIME 


75. 


ler  is  done  by 
ans  of  poison 
It  the  time  ii 
if  it  had  been 


VOLL'NTAUY    l>UL'NKKNNXt»S    NO    KXCL.SE. 


()(;i 


Till"  Kliy,llsli  Cases. 


O.  A.  Ballard,  WilUam  F(irrin(jt(»i  and  F.  W.  McOettrick,  for  the 
prisoner. 

Jf.  It.  Start,  an<l  //.  5'.  Itnycc,  for  the  Stale. 

RiJMiKi.i),  J.  : 

(Omitting  other  (picstions.) 

Tlie  more  important  (picstion  arises  upon  the  charprc  of  the  court  upon 
the  effect  of  iufovication  upon  tlic  grade  of  tiie  offence.  Tlie  court 
cliarged  tlie  jury  that  voluntary  intoxication  could  neither  excuse  nor 
mitigate  the  offenc<\  There  is,  perhaps,  no  priiicii)le  or  maxim  of  tlie 
common  law  of  T^,ij:!'ind  more  uniformly  adhered  to  than  that  vohiiitary 
drunkenness  does  nol,  excuse  or  palliate  crime.  Lord  I'oke,  in  his 
Institutes,  declares  that  "  whatever  liui't  or  ill  he  doth,  his  drunkcMness 
doth  aggravate  it,"*  And  in  his  Reports,-  he  says:  "Although  he  that 
is  drunk  is  for  the  ixma  non  compon  mentis,  yet  his  drunkenness  doth  not 
extenuate  his  act  or  offence,  nor  turn  to  his  avail."  And  Sir  IMatthew 
Hale,  eminent  alike  for  liis  humanity  and  learning,  says  of  drunkenness, 
wliicli  ho  calls  dementia  ajfi  latu:  "This  vice  doth  deprive  men  of 
the  use  of  reason,  and  puts  many  men  in  a  perfect  ])ut  temporary 
frenzy  ;  *  *  *  but  by  the  hiws  of  England,  such  a  pci'son  shall  have 
no  privileges  by  his  voluntary  contracted  madness,  but  shall  have  the 
same  judgment  as  if  he  were  in  his  right  senses.  And  Lord  Bacon,  in 
his  "  iMaxims  of  the  Law,"*'  in  that  comprehensive  language  which 
(dearly  defines,  and  gives  the  reasons  for  the  rule  of  law,  thus  asserts  the 
doctrine :  "If  a  madman  commits  a  felony,  he  shall  not  lose  his  life  for  it 
l)ecausc  his  infirmity  came  by  act  of  God  ;  but  if  a  drunken  man  commit 
a  felony  he  shall  not  be  excused,  because  the  imperfection  came  by  his 
own  default."  In  Burrow's  Case,'*  Holroyd,  J.,  thus  defines  the  rule: 
"  It  is  a  maxim  in  the  law  that  if  a  man  gets  himself  intoxicated  he  is 
answerable  to  the  consequences,  and  is  not  excusable  on  account  of  any 
crime  he  may  commit  when  infuriated  with  liquor,  provided  he  was  pre- 
viously in  a  fit  state  of  reason  to  know  right  from  wrong."  And  tho 
cases  of  Rex  v.  Grindley  and  Rex  v.  Meakin^  show  the  uniformity  of  this 
rule  in  the  courts  of  England.  In  the  case  of  People  \.  Rogers'''  the 
Supreme  Court  had  reversed  the  conviction  of  Rogers,  on  the  ground 
that  the  court  had  excluded  the  evidence  of  the  respondent's  drunken- 
ness, as  affecting  the  criminal  intent.  But  the  case  was,  by  writ  of 
error,  carried  to  the  Court  of  Appeals  and  the  whole  law  upon  that  sub- 
ject was  reviewed   and  canvassed  with  great  learning  and  ability  by 


Alioe  But- 


)  3  Thomas'  Coke  Lit.  46. 

a  Uevccley'B  Case,  4  Coke,  123  b,  125  a. 

3  Rule  5. 


*  lLewin,75,A.  D.  1823. 
»  7  C.  &  P.  297. 
«  18  N.  Y.  9. 


662 


DRUNKEXXESS. 


Stati'  r.  Tfitro. 


Chief  Justice  Denio  and  Hauris,  J.     ITarkis,  J.,  says:   "  The  Supreme 
•Court  si'Cin  to  have  understood  that  in  all  cases  where  without  it  the 
law  would  impute  to  the  act  a  criminal  intent,  drunkenness  would  Lc 
available  to  disprove  such  intent.     I  am  not  aware  that  such  a  doctrine 
has  before  been  asserted.     It  is  certainly  not  sound.     The  adjudica- 
tions upon  the  subject,  both  in  P^ngland  and  in  this  countr}',  arc  numer- 
ous and  characterized  bj"-  a  singular  uniformity  of  language  and  doctrine. 
They  all  agree  that  where  the  act  of  killing  is  unequivocal  and  unpro- 
voked the  fact  that  it  was  committed  while  the  perpetrator  was  intoxi- 
cated cannot  be  allowed  to  affect  the  legal  character  of  the  crime." 
But  it  is  insisted  that  under  the  statute  wliicb  makes  "degrees"  of 
murder,  drunkenness  qualifies  and  mitigates  the  higher  offence.     The 
statute  declares  that  '•  all  murder  which  shall  be  perpetrated  by  means 
of  poison,  or  by  lying  in  wait,  or  any  other  kind  of  deliberate  and  \n'e- 
meditated  killing,  shall  be  deemed  murder  in  the  first  degree."     Tlr 
same  or  similar  statute  has  been  enacted  in  most  of  the  States.     And 
many  courts  have  allowed  drunkenness  to  be  shown  in  mitigation  of  the 
higher  offence.     In  the  case  of  State  v.  Jo  nson,^  the  court  held  that 
intoxication,  as  tending  to  show  that  the  prisoner  was  incapable  of  de- 
liberation, might  be  given  in  evidence.     Chief  Justice  Seymoir  dis- 
sented, and  Foster,  J  ,  who  tried  the  case  below,  did  not  sit,  so  that 
the  four  judges  constituting  the  court  were,  in  fact,  equally  divided. 
The    same    case    came    before    that    court  again,-   and   the    opinion 
was  delivered   by  the  same    judge.     The   court  were   hard    pressed 
with  the  former  opinion  in  the  same  case,  and  that  it  had  taken  a  de- 
parture from  the  common  law.     But  the  court  repelled  the  intimation, 
and  declared  that  "  we  have  enunciated  no  such  doctrine,"  but  hold 
"on  a  trial  for  murder  in  the  first  degree,  which,  under  our  statute,  re- 
quires actual  express  notice,  the  jury  might  and  should  take  into  con- 
sideration the  fact  of  intoxication,  as  tending  to  show  that  such  malice 
did  not  exist."     And  in  the  sanK' opinion,  the  judge  says:  "Malice 
may  be  implied  from  the  circumstances  of  the  homicide.     If  a  drunken 
man  takes  the  life  of  another,  unaccompanied  with  circumstances  of 
provocation  or  justification,  the  jrvry  will  be  warranted  in  finding  the 
existence  of  malice,  though  no  express  malice  is  proved.     Intoxication, 
which  is  itself  a  crime  against  society,  combines  with  the  act  of  killing, 
and  the  evil  intent  to  take  life  which  necessarily  accompanies  it,  and  all 
together  afford  suflRcient  grounds  for  implying  malice.     Intoxication, 
therefore,  so  far  from  disproving  malice,  is  itself  a  circumstance  from 


40  Conn.  130. 


'  41  Conn.  .'334. 


DEGREES   OF    MUliDEK, 


()(;3 


Evi(U'iico  of  Druiikeiinoss  Irri'li'vaiil. 


Supreme 
out  it  the 
would  Lc 
I  doctrine 
adjudica- 
re  nuracr- 
doctrine. 
id  un pro- 
as intoxi- 
j  crime." 
rees  ' '  of 
cc.     Tlic 
by  means 
and  pre- 
;."     Tbr 
3S.     And 
on  of  the 
icld  that 
e  of  de- 
oiR  dis- 
,  so  that 
divided. 

opinion 

pressed 
?n  a  de- 
imation, 
but  hold 
tute,  re- 
ito  con- 
h  malice 
'  Malice 
drunken 
ances  of 
ling  the 
:ication, 
killing, 

and  all 
ication, 
36  from 


which  malice  may  be  implied.  We  wish,  therefore,  to  reiterate  the  doc- 
trhie  emphatically,  that  drunkenness  is  no  excuse  for  crime,  and  we 
trust  it  will  be  a  long  time  before  the  contrary  doctrine,  which  will  be 
so  convenient  to  criminals  and  evil  disposed  persons,  will  receive  the 
sanction  of  this  court."  This  reasoning  seems  to  us  both  illogical  and 
incongruous.  To  constitute  murder  of  the  first  degree  the  act  must, 
indeed,  be  done  with  malice  aforethought,  and  that  malice  must  be  ac- 
tual, not  constructive.  At  common  law,  if  the  accused  shoot  his  neigh- 
bor's  fowls,  and  by  accident  kill  the  owner,  he  is  guilty  of  murder,  yet 
he  did  not  intend  to  murder,  but  to  steal.  Such  cases  are  excluded  by 
the  statute  from  the  definition  of  murder  in  the  first  degree.  But 
"  where  the  act  is  committed  deliberately,  with  a  deadly  weapon,  and 
is  likely  to  be  attended  with  dangerous  consequences,  tlie  malice  requi- 
*site  to  murder  will  be  presumed  ;  for  the  law  infers  that  the  natural  and 
probable  effect  of  au}^  act  deliberately  done  was  intended  by  its  actor, i 
and  intent  for  an  instant  before  the  blow,  is  sufficient  to  constitute  mal- 
ice." 2  It  will  be  admitted  that  if  the  respondent  had  killed  his  victim 
"by  poison  or  lying  in  wait "  the  act  would  have  been  murder  in  the 
first  degree,  and  the  fact  that  he  was  intoxicated  could  not  have  been  ad- 
mitted to  excuse  or  palliate  the  crime.  Yet  it  is  claimed  that  if  the 
circumstances  show  that  the  murder  was  deliberately  planned,  and  exe- 
cuted with  fiendish  barbarity  and  malice,  drunkenness  may  come  in  to 
palliate  the  crime. 

This,  we  think,  is  making  a  distinction  without  a  difference.  Chief 
Justice  IIoRNBU)WER,3  speaking  of  the  New  Jersey  statute,  which  is  like 
ours,  says:  "This  statute,  in  my  opinion,  does  not  alter  the  law  of 
murder  in  the  least  respect.  What  was  murder  before  its  passage  is 
murder  now  —  what  is  murder  now  was  murder  before  that  statute  was 
passed.  It  has  only  changed  the  punishment  of  murder  in  certain 
cases ;  or  rather,  it  prescribes  that,  in  certain  specified  nif)des  of  com- 
mitting murder,  the  punishment  shall  be  death,  and  in  all  other  kinds  of 
murder,  the  convict  shall  ue  punished  by  imprisonment." 

The  evidence,  so  far  as  detailed  in  this  case,  if  believed,  shows  a 
murder  most  fiendish  and  shocking.  He  destroyed  the  last  resisting 
vitality  of  this  woman,  struggling  for  her  life,  with  an  axe,  which  shows 
malice  and  malignity  of  purpose.  The  language  of  Chief  Justice 
McKay,  while  discussing  a  like  statute  in  Pennsylvania,  and  in  a  case 
quite  similar  to  this,  is  fitting  and  sensible.  He  says:  "  It  has  been 
objected  that  the  amendment  of  our  penal  code  renders  premeditation 


'  2  Am.  Com.  T.aw,  944. 


»  /*.  948. 


'  1  Am.  Crim.  Law,  sect.  1103. 


()<)4 


DRUNKENNESS. 


Uo\it  V.  IVoplc 


an  indisputable  ingredient  to  constitute  murder  in  the  first  degree.  But 
still  it  must  be  allowed  that  the  intention  remains,  as  much  as  ever,  the 
true  criterion  of  crime,  in  law  as  well  as  in  ethics ;  and  the  intention  of 
the  party  can  only  be  collected  from  his  words  and  actions.  #  ♦  * 
But  let  it  be  supposed  that  a  man  without  uttering  a  word  should  strike 
another  on  tlie  head  with  an  axe,  it  must,  on  every  principle  by  which  we 
can  judije  of  human  actions  be  deemed  a  p'-emeditated  violence."  The 
statute  has  in  no  degree  altered  the  common-law  definition  of  murder. 
But  the  killing  of  a  human  being  by  poison,  or  lying  in  wait,  or  by  pur- 
posely using  a  deadly  weapon  to  that  end  is  murder  in  the  fir;t  degree  ; 
and  the  purpose  and  intent  to  kill  must  be  determined  by  the  circum- 
stances tiiat  surround  each  case  ;  for  the  murderer  takes  with  him  no 
witnesses,  and  does  not  often  avow  his  purpose.  Where  the  requisite 
proof  is  adduced  to  show  a  wicked,  intentional  murder,  he  is  not  per- 
mitted to  show  a  voluntary  and  temporary  intoxication  in  extenuation 
of  his  crime. 
The  respondent  takes  nothing  by  his  exceptions. 


INTOXICATION  — DEGREES  OF  MURDER. 

IIoPT  V.  People. 

[104  U.  S.  031.] 
In  the  Supreme  Court  of  the  United  States,  October  Term,  1881. 


Hon.  Morrison  R.  Waite,  C/ii>/ Justice 
"     Samiki,  Mili.i'.k, 
Jo.SKl'II  P.  Bradi.ky, 

StKPIIKN   J.  FlKI.D, 

JouN  M.  IIari.an, 
William  B.  Woods, 
IIoRACK  Gray, 
Samuel  Blatciiford, 
Stanley  Matthews. 


(( 
t< 
<< 
<< 
<( 


Associate  Justices 


Under  a  statute  establishing  degrees  of  the  crime  of  murder,  and  providing  that  wilful,  de- 
liberate, malicious,  and  premeditated  Ivilliiig  i<hull  be  murder  in  the  first  degree,  evi- 
dence that  the  accused  was  intoxicated  at  tlie  time  of  the  killing  is  competent  for  the 
consideration  of  the  jury  upon  the  question  whether  he  was  in  such  a  condition  of 
mind  as  to  be  capable  of  deliberate  premeditation. 

In  eurou  to   the  Supreme  Court  of  the  Territory  of  Utah.    The 
opinion  states  the  case. 


I>E(JI{EES    OF   MURDER. 


665 


Kxcoptioii  to  (.'liiirs't'. 


ree.     But 
I  over,  the 

tention  of 

*     *     * 

ukl  strike 
wliich  wo 
e."  The 
'  inurder. 
r  by  pur- 
t  dct^rce ; 
e  circiim- 
h  him  no 
requisite 
not  per- 
^enuation 


881, 


rilful,  de- 
gree, cvi- 
nt  for  the 
dition  of 


u    The 


Mr.  Justice  Gray,  delivered  tlie  opinion  of  tlie  court. 

Tiio  plainliff  ill  error  was  indicted,  convicted,  and  sentenced  for  the 
crime  of  murder  in  the  first  degree  in  tlie  District  Cotut  of  the  'J'hird 
Judicial  District  of  tlie  Territory  of  Utah,  and  presented  a  bill  of  ex- 
ceptions, which  was  allowed  by  the  presiding  judge,  and  from  his 
judgment  and  sentence  appealed  to  the  Supreme  Court  of  the  Territory, 
and  tliat  court  having  atrirmed  the  judgment  and  sentence  he  sued  out 
a  writ  of  error  from  this  court.  Of  the  various  errors  assig.ied  we  have 
found  it  necessary  to  consider  two  only. 

The  Penal  Code  of  Utah  contains  the  following  provisions:  "  Every 
raurdor  perpetrated  by  poison,  lying  in  wail,  or  any  other  kind  of  wil- 
ful, deliberate,  malicious,  and  premeditated  killing;  or  cinniuitted  in 
the  perpetration  of,  or  attemi)t  to  perpetrate,  any  i.rsoii,  rivpe,  burglary, 
or  robbery;  or  perpetrated  from  a  premeditated  design  unlawfully  ami 
maliciously  to  effect  the  death  of  any  other  human  being  other  than  him 
who  is  killed  ;  or  perpetrated  by  any  act  greatly  dangerous  to  the  lives 
of  others,  and  evidencing  a  depraved  mind  regardless  of  human  life,  is 
murder  in  the  first  degree  ;  and  any  other  homicide,  committed  under 
such  circumstances  as  would  have  constituted  murder  nt  common  law 
is  murder  in  the  second  degree."  i  "  Every  person  guilty  of  murder  in 
the  first  degree  shall  suffer  death,  or  upon  the  recommendation  of  the 
jury,  may  l)e  imprisoned  at  hard  labor  in  the  penitentiary  for  life,  at 
the  discretion  of  the  court;  and  every  person  guilty  of  murder  in  the 
second  degree  shall  be  imprisoned  at  hard  labor  in  the  penitentiary  for 
not  less  than  five  nor  more  than  fifteen  years."  ^ 

By  the  Utah  Code  of  Criminal  IVocedure,  the  charge  of  the  judge  to 
the  jury  at  the  trial  "  must  be  reduced  to  writing  before  it  is  given"  un- 
less l)y  the  mutual  consent  of  the  parties  it  is  given  orally,"  3  the  niry 
upon  retiring  f(;r  deliberation,  may  take  with  them  the  written  instruc- 
tions given, •<  and  "  when  written  charges  have  been  presented,  given,  or 
refused,  the  questions  presented  in  such  charges  need  not  be  excepted 
to  or  embodied  in  a  bill  of  exceptions,  but  the  written  charges  or  the 
report,  with  the  indorsements  showing  the  action  of  the  court,  form 
pa.  t  of  the  record,  and  any  error  in  the  decision  of  the  court  thereon 
may  be  taken  advantage  of  on  appeal,  in  like  manner  as  if  presented  in 
a  bill  of  exceptions."  ^ 


1  Sect.  89. 

'  Sect.  90,  Comp.  Laws  of  Utah  of  1876,  pp. 
6S5,  586. 

3  Sect.  257,  cl.  7. 


*  Sect.  289. 

5  Sect.  315,  Laws  of  Utah  of  1878,  pp.  lU, 
121, 126. 


606 


DRUNKENNESS. 


Ilopt  V.  People. 


It  appears  by  the  bill  of  exceptions  that  evidence  was  introduced  at 
the  trial  tending  to  show  that  the  defendant  was  intoxicated  at  the  time 
of  the  alleged  homicide. 

The  defendant's  fifth  request  for  instructions,  which  was  indorsed, 
"  refused  "  by  the  judge,  was  as  follows:  "  Drunkenness  is  not  an  ex- 
cuse for  crime  ;  but  as  in  all  cases  where  a  jury  find  a  defendant  guilty 
of  murder  thoy  have  to  determine  the  degree  of  crime,  it  becomes  neces- 
sary for  them  to  inquire  as  to  the  state  of  mind  under  which  he  acted, 
and  in  the  prosecution  of  such  an  inquiry  his  condition  as  drunk  or  sober 
is  proper  to  be  considered,  where  the  homicide  is  not  committed  by  means 
of  poison,  lying  in  wait,  or  torture,  or  in  the  perpetration  of  or  attempt  to 
perpetrate  arson,  rape,  robbery,  or  burglar3\  The  degree  of  the  offence 
depends  entirely  upon  the  question  whether  the  killing  was  wilful, 
deliberate,  and  premeditated,  and  upon  that  question  it  is  pi'oper  for 
the  jury  to  consider  evidence  of  intoxication  if  such  there  be  ;  not  upon 
the  ground  that  drunkenness  renders  a  criminal  act  less  criminal,  or  can 
be  received  in  extenuation  or  excuse,  but  upon  the  ground  that  the  con- 
dition of  the  defendant's  mind  at  the  time  the  act  was  committed  must 
be  inquired  after,  in  order  to  justly  determine  the  question  as  to  whether 
his  mind  was  capable  of  that  deliberation  or  premeditation,  which, 
according  as  they  are  absent  or  present,  determine  the  degree  of  the 
crime. ' ' 

Upon  this  subject  the  judge  gave  only  the  following  written  instruc- 
tion: "A  man  wlio  voluntarily  puts  himself  in  a  condition  to  have  no 
control  of  his  actions  must  be  held  to  intend  the  consequences.  The 
safety  of  the  community  requires  this  rule.  Intoxication  is  so  easily 
counterfeited,  and  when  real  is  so  often  resorted  to  as  a  means  of  nerv- 
ing a  person  up  to  the  commission  of  some  desperate  act,  and  is  withal 
so  inexcusable  in  itself,  that  the  law  has  never  recognized  it  as  an  ex- 
cuse for  crime." 

The  instruction  requested  and  refused,  and  the  instruction  given, 
being  matter  of  record  and  subjects  of  appeal  under  the  provision  of  the 
Utah  Code  of  Criminal  Procedure,'  a))ove  quoted,  their  correctness  is 
clearly  open  to  consideration  in  this  court.^ 

At  common  law,  indeed  as  a  general  rule,  voluntary  intoxication 
affords  no  excuse,  justification,  or  extenuation  of  a  crime  committed 
under  its  influence. ^  But  when  a  statute  establishing  different  degrees 
of  murder  requires  deliberate  premeditation  in  order  to   constitute 


!  Sect  315. 

»  Young  V.  Martin,  8  Wall.  354. 

3  United  States  v.  Drew,  6  Mason,  28; 


United  States  v.  McGlue,  1  Curt.  1;  Com- 
mon wealtti  V.  Hawkins,  3  Gray,  i63;  People 
V.  Rogers,  18  N.  Y.  9. 


)duced  at 
t  the  time 

indorsed, 
ot  an  ex- 
ant  guilty 
les  neces- 
lie  acted, 
t  or  sober 
by  means 
Lttemi)t  to 
le  offence 
IS  wilful, 
coper  for 
not  upon 
il,  or  can 
the  con- 
ted  must 
)  whether 
,  which, 
!e  of  the 

1  instruc- 
have  no 
2S.  The 
30  easily 
of  ncrv- 
is  withal 
as  an  ex- 

1  given, 
3n  of  the 
3tness  is 

•xication 

mmitted 

degrees 

institute 

t.  1;  Com- 
B3;  People 


HOIT   V.  PEOPLE. 


6G7 


Nicools  V.  State. 


murder  in  the  first  degree,  the  question  whether  the  accused  is  in  such 
a  condition  of  mind,  by  reason  of  drunkenness  or  otherwise,  as  to  be 
capable  of  deliberate  premeditation,  necessarily  becomes  a  material 
subject  of  consideration  by  the  jury.  The  law  has  been  rei)eatodly  so 
ruled  in  the  Supreme  Judicial  Court  of  Massachusetts  in  cases  tried 
before  a  full  court,  one  of  which  is  reported  upon  other  points.'  And 
the  same  rule  is  expressly  enacted  in  the  Penal  Code  of  Utah:  2  "  No 
net  committed  by  a  person  while  in  a  state  of  volutionary  intoxication 
is  less  criminal  by  reason  of  his  having  been  in  such  condition.  But 
whenever  the  actual  existence  of  any  particular  purpose,  motive,  or 
intent  is  a  necessary  element  to  constitute  any  particular  species  or 
degree  of  crime,  the  jury  may  take  into  consideration  tiie  fact  that  the 
accused  was  intoxicated  at  the  time,  in  determining  the  purpose,  motive, 
or  intent  with  which  he  committed  the  act."^ 

The  instruction  requested  by  the  defendant  clearly  and  accurately 
stated  the  law  applicable  to  the  case,  and  the  refusal  to  give  that 
instruction,  taken  in  connection  with  the  unqualified  instruction  actually 
given,  necessarily  prejudiced  him  with  the  jury. 

[Omitting  a  point  of  practice.] 

For  these  reasons  the  judgment  must  be  reversed,  and  the  case 
remanded  with  instructions  to  set  aside  the  verdict  and  order  a  new 
trial. 


INTOXICATION  — NOT  RELEVANT  ON  QUESTION  OF  MALICE. 

NicoLS  V.  State. 

[8  Ohio  St.  435.] 

In  the  Supreme  Court  of  Ohio,  December  Term,  1858. 

Hon.  Thomas  W.  Bartley,  Chief  Justice. 
*'    Joseph  R.  Swan,         1 
♦'    Jacob  Brinkebhoff,  I 
"    JosiAH  Scott,  }■  Judges. 

"      MiLTOX   SUTLIFF, 

Intoxioation  —  Malice.  —  On  an  indictment  for  maliciously  stabbing  with  intent  to  kill, 
it  was  in  evidence  that  the  prisoner  was  intoxicated  at  the  time  of  the  act.    The  judge 


I  Commonwealth  v.  Dorsey,  103  Mass. 
412;  and  in  well  considered  cases  in  courts 
of  other  states.  Pirtle  v.  State,  9  Humph. 
(1G3:  llailof.  State,  11  Id.  Ii54;  Kelly  r.  Com- 
monwealth, 1  (Jrnnt  (Penn.),484;  Kccnan  v. 
(Jommonwculth,    -14   Pu.  St.    55;   Jones    v. 


Commonwealth,  75  Id.  403 ;  People  v,  Belen- 
ciii,  21  Oal.  544;  People  v.  Williams,  43  Id. 
344;  State  v.  Jolinson,  40  Conn.  136,  and  41. 
Id.  684 ;  Pigman  t>.  State,  14  Ohio,  655,  557. 

■  Sect.  20. 

3  Comp.  Laws  of  Utah  of  1876,  pp.  568, 569. 


6(58 


DliUNKENNESS. 


Nicols  V.  Stall!. 


rcfUHcd  to  charge  tho  jury  that  intoxication  "  in  n  circumstanco  proper  to  bo  taken  into 
consideration  by  thcni,  and  xhould  have  its  just  weight  in  determining  tho  malicious 
iuteut."    Held,  not  error. 

Caleb  Nichols  was  indicted  in  the  Common  Pleas  of  Muskingum 
County,  for  maliciously  stabbing  with  intent  to  kill  one  Zachariah  Riley, 
lie  was  found  guilty  and  appealed, 

Charles  C.  Godclard  and  J.  Q.  Lane,  for  the  prisoner. 

John  C.  Hazlett,  prosecuting  attorney  for  the  State. 

BlMNKEUHOFF,  J. 

[After  disposing  of  another  point.] 

Did  tlie  court  below  err  in  holding,  as  it  did  substantiall}',  that,  in  a 
case  of  this  kind,  the  intoxication  of  the  accused  had  nothing  to  do  with 
the  question  of  malice? 

This  is  a  question  much  more  serious  and  difficult  than  the  preceding, 
and  in  respect  to  which  our  minds  have  not  been  free  from  doubt ;  but, 
after  a  long  and  somewhat  anxious  deliberation,  we  have  unanimously 
come  to  the  conclusion  that  there  was  no  error  in  the  charge  of  the  court 
below  on  this  point. 

All  the  authorities  agree  that  drunkenness  is  no  excuse  'or  crime. 
Crime,  when  all  the  acts  of  hand  and  mind  which  constitute  it  actually 
exist,  is  not  the  less  criminal  when  committed  by  a  person  intoxicated. 
A  drunken  malice  is  as  dangerous,  and  maybe  quite  as  wicked,  as  sober 
malice ;  and  it  is  a  sorry  consolation  to  a  sufferer  from  a  murderous 
stab,  and  to  a  community  which  is  responsible  for  his  protection,  to  be 
told  that  the  act  was  done  b}'  a  man  who  was  bound  in  morals  to  keep 
sober,  and  who  had  the  power  to  keep  sober,  but  had  become  volun- 
tarily drunk.  Nevertlieless,  it  has  been  held,  in  this  State,  that  where  a 
peculiar  knowledge  was  an  clement  of  the  guilty  act,  requiring  nice 
discrimination  and  judgment,  as  in  passing  a  counterfeited  bank-bill, 
knowing  it  to  be  counterfeited,  and  where  deliberation  and  premedita- 
tion are  necessary  ingredients  of  the  crime,  as  in  minder  in  the  first 
degree,  evidence  of  intoxication  is  admissible,  and  proper  to  be  taken 
into  consideration  by  tlie  jury,  in  determining  the  question  as  to  the 
guilty  knowledge  in  one  case,  and  as  tc  the  deliberation  and  premedita- 
tion in  the  other.  So,  if  the  accused  was  so  drunk  as  not  to  know  what 
he  was  <loing,  the  fact  of  intoxication  may  doubtless  be  given  in  evi- 
dence for  what  it  is  worth  for  the  purpose  of  showing  that  he  did  not 
intend  at  the  time  to  do  what  he  in  fact  did  do.  So  far  as  we  are 
advised,  there  is  no  reported  case  in  Ohio  requiring  us  to  go  beyond 
this ;  and  to  this  extent,  on  a  fair  constrtiction  of  the  language  of  the 

'  Pignian  v.  State,  14  Oliio  555. 


DUIXKENNESS. 


GG9 


Not  Kilcviiiit  (111  Ciui'stioii  of  Miilici; 


court  below  in  eliargiiig  the  jury,  the  piisoiior,  in  the  case  before  us, 
had  the  boneJlt  of  the  evidence  in  regard  to  liis  state  of  intoxication. 
And  tliis,  too,  seems  to  be  tlie  full  extent  to  which  we  are  led  by  the 
general  current  of  authorities  in  other  States. 

We  will  not  say  but  that,  admitting  the  eorreetness  of  tiiese  decisions, 
a  refined  and  rigid  logical  theory  might  not  require  us  to  go  further. 
Rut  here  the  authorities  authorize  us  to  stop;  and  here  we  think  a 
proper  regard  to  the  i)ublic  safety  in  the  practical  admuiistration  of 
criminal  justice  requires  that  we  siiouldstoi).  This  kind  of  evidence  is 
at  best,  and  in  any  case,  of  dangerous  tendency  in  its  practical  applica- 
tion. Intoxication  is  easily  simulated.  It  is  often  voluntarily  induced 
for  the  sole  purpose  of  nerving  a  Avicked  heart  to  the  firmness  requisite 
for  tiie  commission  of  a  crime  soberly  i)remeditated,  or  as  an  excuse  for 
such  crime.  Yet  these  pre-existing  disjjositions  may  be  difficult  or 
impossible  to  prove.  And  when  we  ailniit  evidence  of  intoxication  to 
rebut  a  guilty  knowledge  requiring  nice  discrimination  and  judgment, 
to  rebut  a  charge  of  deliberation  or  premeditation,  and  to  show  that  the 
accused  did  not  at  the  time  intend  to  do  tiie  act  which  he  did  do,  we 
think  we  l»ave  gone  far  enough ;  and  that,  looking  to  the  practical 
administration  of  the  criminal  law,  a  due  regard  to  tlie  public  safety 
requires  that  the  mere  question  of  malice  should  be  determined  by  the 
circumstances  of  the  case,  aside  from  the  fact  of  intoxication,  as  in 
other  cases. 

Motion  overruled. 

SvTAN,  C.  J.,  and  Scott,  Sutuff,  and  Peck,  JJ. ,  concurred. 


INTOXICATION  — WHEN  AN  EXCUSE  — BURDEN  OF  PROOF- 
DOUBT  — MORAL  INSANITY  — TEST. 

Smith  v.  Co^niONWEALTii. 


RATIONAL 


[1  Duv.  224.] 

In  the  Court  of  Appeals  of  Kentucky,  Summer  Term,  1864. 

Hon.  Joshua  F.  Bullitt,  Chief  Justice 
'«    Belvaui)  J.  Peters,  ^ 
"     RuFUS  K.  Williams,  >  Judges. 
"    GixiRGE  Robertson.  ) 

Intoxication— When  an  Excuse. —  A  person  who  designing  a  homicide  drinlss  to  ex- 
cess, and  then  commits  il,  is  guilty  of  murder.    But  drunkenness  brought  on  by  sensual 


1  Com.r.  Jones,  1  Leigh, 612; Com.  r.  Hag- 
gerly,4{;iark,  1S7;  I'iitle  r.  Slate,!)  Ihiniph. 
664;  Swan  V.  State,  4  Humph.  !:!(>;  Haile  c. 


stale,  11  Hnnipli.  1,)4 ;  I'eopler.  Robinson, 3 
Park.  2'2:!-2.!:). 


CTO 


UKUNKKNXESS. 


Siiiith  V.  ('(HiimoinvL'ulth 


or  Kocial  f;ralifli'ation  with  no  criiiiinul  intunt  iiiii}'  reiluce  uii  unprovoked  homicide  from 
iiiurdur  to  mnnHlaiigliU'r. 

2.  Burden  of  Proof  —  Rational  Doubt. —  An  in.struction  Unit,  where  the  Jury,  from  the 
ovidencv,  ciiterlain  a  ratiiiiial  ddiilit  on  the  (luestion  of  insanity,  tlicy  should  alwayH 
dud  in  favor  of  sanity,  is  erroneous. 

:t.  Moral  insanity  is  now  as  well  understood  and  established  as  intellectual  insanity. 

4.  Test  of  Responsibility.  — The  test  of  responsibility  is  whether  the  accused  had  suffi- 
ci(>nt  reason  to  know  riglit  from  wrong,  and  whether  or  not  he  had  eufllcient  power  of 
control  lu  govern  his  actions. 


ArPEAi.  fi-om  Jefferson  Circuit  Court. 

O.  I.  and  /.  Caldwell,  with  W.  F.  Bullock  and  //.  Pope,  for  the  ap- 
pclhint. 

Julia  M.  Harlan,  Attorney-General,  for  the  Commonwealth. 

Judge  KoBEitTSON  delivered  the  opini  ;n  of  the  court. 

Robert  Smith,  convicted  by  the  verdiet  of  a  jury  and  sentenced  by 
the  Circuit  Court,  to  be  hung  on  an  indictment  eiiarging  him  with  the 
murder  of  Fi'ederick  Laiidaur,  appeals  to  this  oui't  for  a  reversal,  on 
the  ground  that  the  indictment  is  insufficient,  and  that  the  circuit  judge 
erred  in  giving  and  in  withholdings  instructions  on  the  trial. 

[Omitting  the  question  as  to  the  indictment.] 

The  court  also  instructed  the  juiy  "  that  in  case  of  homicide,  without 
any  provocation,  the  fact  of  drunkenness  is  entitled  to  no  considera- 
tion," and  that  "  temporary  insanity,  which  has  followed  as  the  imme- 
diate result  of  voluntary  drinking  to  intoxication,  is  no  excuse  for 
crime."  In  all  this  we  cannot  concur.  If  a  man  designing  a  homicide, 
drink  to  intoxication,  either  to  incite  his  animal  courage,  or  prepare 
some  excuse,  the  killing  will  be  murder.  But  if  sensual  gratification  or 
social  hilarity,  without  any  premeditated  crime,  induced  the  drinking, 
surely  his  condition  may  be  such  as  to  reduce  even  an  unprovoked  hom- 
icide from  murder  to  manslaujihter.  And,  if  transient  insanity  ensue, 
although  it  should  not  altogether  excuse,  yet  it  shouhl  mitigate  the 
crime  of  the  inevitable  act.  There  was  some  testimony  in  this  case 
tending  to  show  that  the  appellant,  when  he  killed  Landaur,  was  intox- 
icated, and  also  that  such  a  condition  superinduced  moral  insanitj',  and 
the  jury  had  a  right  to  weigh  that  testimony  and  determine,  not  only 
the  fact  of  intoxication,  but  its  actual  effect  on  the  mind  and  will,  and 
consequently  on  the  conduct  of  tlie  appellant.  Had  they  believed  that 
it  was  neither  simulated  nor  malicous,  but,  without  even  producing 
momentary  insanity,  prompted  a  homicide  which  otherwise  would  not 
have  been  perpetrated,  they  had  a  right  to  decide  that  the  act  was  not 
so  criminal  as  murder ;  and  if,  especially,  they  had  been  satisfied  that 
the  act  was  the  offspring  of  momentary  insanity,  they  could  not  as  con- 


>inicido  from 

iry,  from  thn 
ould  aJways 

nsanitj-, 

eil  liad  suffl- 

nt  power  of 


r  the 


ap- 


enced  by 
with  the 
■ersal,  on 
Jit  judge 


,  without 
)nsidora- 
le  imme- 
cuse  for 
omicidc, 
prepare 
nation  or 
ri  liking, 
ed  hom- 
J  ensue, 
:a(c  the 
his  case 
s  intox- 
it3',  and 
lot  only 
ill,  and 
ed  that 
•ducing 
Jld  not 
i'as  not 
;d  tiiat 
as  con- 


iu;uoi:\  or  ruooF. 


071 


Riitioiml  Doubt, 


scientious  triers  have  doomed  such  a  victim  to  the  gallows.  The 
instruction  tacitly  concedes  that  permanent  insanity  produced  by  drunk- 
enness, may  excuse  a  homicide,  and  this  contrary  to  the  ancient  doc- 
trine, is  now  universally  conceded  to  be  American  law.  And  why  is  it 
law?  Only  because  no  insane  man  is  responsible  for  insane  acts.  And 
why  should  an  insane  act,  prompted  by  transient  insanity,  have  no  ex- 
culpatory or  mitigating  effect  on  the  question  of  crime  or  of  its  grade? 
In  Lord  Coke's  day  a  man  could  not  avoid  a  contract  on  a  plea  of  in- 
sanity on  incapacitating  drunkenness.  That  absurdity  has  been  long 
exploded.  And  why  should  its  spurious  twin  —  that  drunkenness, 
whatever  may  ^be  its  effect,  is  no  excuse  for  crime  —  be  still  recognized 
as  law  in  this  improved  age  of  a  more  enlightened  and  homogeneous 
jurisprudence?  We  conclude  that  this  instruction  did  not  clearly  and 
distinctly  embody  the  true  modern  law,  and  may  have  been,  therefore, 
prejudicial  to  the  appellant. 

4.  The  next  instruction  we  shall  consider  is  the  following,  as  given  to 
the  jury :  "  When  the  jury,  from  the  evidence,  entertain  a  rational  doubt 
on  the  question  of  insanity,  they  should  always  find  in  favor  of  sanity." 
This,  too,  is  not  now,  either  altogether  or  always,  a  consistent  and  true 
doctrine.  Can  it  be  possible,  that  here  and  now,  a  jury  is  bound  to 
hang  a  man  for  murder  when  they  naturally  and  strongly  doubt  his  ca- 
pacity to  commit  any  crime  ? 

The  "rational  doubt,"  which  should  result  in  an  acquittal,  lest  an 
innocent  man  might  be  unjustly  punished,  is  a  doubt  as  to  all  or  any 
one  of  the  constituent  elements  essential  to  legal  responsibility  or  pun- 
ishable guilt ;  and  unless  they  all  concur,  acquittal  is  the  legal  conse- 
quence. As  a  sound  and  responsible  mind  is  indispensable  to  such 
guilt,  why  should  not  a  strong  and  rational  doubt  of  the  capacity  to 
commit  the  imputed  crime  favor  the  acquittal  of  the  accused  ?  It  is 
true  that  2>Wma/ao«e,  every  man  is  presumed  to  be  sane,  and  therefore, 
the  burden  of  proof  to  rebut  this  presumption  devolves  on  the  party 
claiming  the  benefit  of  the  plea  of  insanity.  But  so,  too,  in  like  manner, 
every  man  charged  with  crime  is  presumed  innocent,  and  will  be  so  held 
until  the  Commonwealth  shall  rebut  that  presumption.  But  if  the  testi- 
mony for  rebutting  it  should  leave  room  for  a  rational  doubt  of  guilt, 
"  not  guilty  "  is  the  verdict  of  the  law.  Why,  if  the  evidence  of  in- 
sanity is  strongly  preponderating,  should  not  the  presumption  of  sanity 
be  rebutted,  and  why  should  the  jury  be  bound  to  find  sanity  merely 
beca  se  insanity  has  not  been  proved  with  such  absolute  certainty  as  to 
exclude  a  rational  doubt?  If  this  be  their  duty,  then  in  all  cases  of 
partial  insanity  a  case  could  be  scarcely  imagined,  and  perhaps  may 


072 


DKUNKKNNKSS. 


Sinilli  r.  Comnionwralth. 


never  arise,  in  which  a  plea  of  insanity  can  be  made  available.  A  doubt 
of  sanit}'^  is  essentially  different  from  a  doubt  of  insanity  — the  former 
should  always  avail,  the  latter  never.  When  the  proof  of  insanity  is 
ever  so  strong,  there  may,  and  generally  will  be,  a  doubt  whether,  nev- 
ertheless, the  accused  was  not  sane ;  this  is  a  doubt  of  sanity  which 
should  never  convict,  but  should  always  acquit.  "  Belief  "  is  of  differ- 
ent degrees  of  certainty  and  assurance.  On  such  a  metaphysical  ques- 
tion as  that  of  partial  insanity  no  proof  of  it  can  impress  the  jury  with 
moral  ccrtaintv.  The  preponderating  i)robability  of  insanity  may  boas 
assuring  as  that  on  which  they  individually  act  in  the  affaiisof  ordinary 
life  ;  and  therefore,  they  nuiy  be  said  to  "  believe  "  the  alleged  insanity, 
and  yet  may  feel  some  rational  doubt  of  it.  Such  a  doubt  in  such  be- 
lief may  compel  a  rational  doubt  of  resiwnsible  sanity.  And  so  doubt- 
ing, the  jury  ouglit  not  to  convict.  But  wlien  the  evidence  strongly 
preponderates  in  favor  of  sanity,  a  doubt  whether,  nevertheless,  the  ac- 
cused was  not  insane,  should  never  acquit.  And  that  is  what  we  mean 
by  a  (!(Hibt  of  insanity.  The  instruction  does  not  discriminate  between 
the  two  classes  of  cases,  but  compounds  them ;  and  it  was  therefore 
misleading.  And  this  conclusion  is  not  at  all  inconsistent  with  the 
princii)le  of  the  case  of  Gmhcnn  v.  Commonwealth.^  In  that  case  the 
instructions  adjudged  indefensible,  assumed  the  sufficiency  of  a  doubt 
of  insanity,  not  of  saiiit}-,  and  the  decision  of  the  question  thus  pro- 
pounded was  all  that  was  judicial  in  the  case. 

The  last  instruction  we  shall  notice  is  in  the  following  words :  "To  es- 
tablish a  defence  on  the  ground  of  insanity,  the  accused  must  prove  that 
at  the  time  of  the  killing,  he  was  laboring  under  such  defect  of  reason, 
from  disease  of  the  mind,  as  not  to  know  the  nature  and  quality  of  the  act 
he  was  doing,  or  if  he  did  know  it,  he  did  not  know  he  was  doing  wrong. " 

All  this  ma}'  be  true  in  most  cases  of  intellectual  insanity.  This  spe- 
cies of  insanity,  as  first  defined  by  Erskine  and  illustrated  by  the  sus- 
tained verdict  in  Iladjield's  Case  is  "  delusion,"  arising  from  a  partial 
eclipse  of  the  reason,  or  from  a  morbid  perversion  of  the  percipient  fac- 
ulties, which  present  to  the  abnormal  mind,  as  accredited  realities, 
images  of  objects  that  have  no  actual  existence,  or  a  false  and  distorted 
aspect  of  existing  objects.  Whether  the  true  theory  of  the  human  mind 
be  i)sychological  or  only  physiological,  spiritual  or  material,  man  is  cer- 
tainly so  constituted  as  to  be  compelled  to  believe  the  testimony  of  his 
own  senses.  Tliis  is  tiie  ultimate  test  of  all  human  knowledge,  and 
necessarily  has  the  force  and  certainty  of  intuition,  which  no  reasoning 


'  in  n.  Mon.  5!)1. 


MORAL    INSANITY. 


07.'] 


Tho  Doctrine  Aiiiiotiiu-cd. 


the  ac- 


can  ovori'ome  or  impair.  The  intcllectnal  monoinaiiiac  may  reason  lop:- 
ically,  but  he  reasons  from  false  premises  which  liis  niorhid  mind  as- 
sumes, with  intuitive  conlidence,  to  be  undoubtedly  true.  His  false 
conclusion  may  result,  not  from  "  defect  of  reason,"  as  assumed  in  tlu^ 
instruction,  but  from  an  insane  assumption  of  false  i)rcmises.  To  piui- 
ish  a  homicide,  committed  by  the  insane  victim  of  such  delusion,  ami 
under  its  resistless  influence,  would  be  punishini^  for  what  every  other 
man  in  the  same  condition  would  ever  do  in  defiance  of  all  penul  conse- 
quences;  and,  therefore,  such  i)unishraeiit  would  be  usch'ss,  and  incon- 
sistent with  the  preventive  aim  of  all  criminal  jurisprudence. 

Although  he  had  an  abstract  knowledge  of  "  right  and  wrong,"  and 
knew  that  crime  is  justly  punishable,  nevertheless  he  did  not  know  tiiat 
his  act  was  criminal,  but  felt  sure  that  it  was  lawful  and  righteous. 
But  if  he  knew  that  he  was  doing  wrong,  he  was  not  imi)e]led  by  delu- 
sion, and  his  act  was  criminal.  As  the  intellectual  was  the  only  species 
of  monomania  recognized  for  many  years  after  the  tiial  of  Jladjidd, 
tlie  doctrine  repeated  in  this  instruction,  excepting  only  the  "  defect  of 
reason  "  which  it  seems  to  presuppose  was  esta])lished  as  applicable  to 
all  pleas  of  insanity  in  criminal  esses  ;  and  until  lately  it  had  been  ap- 
I)lied  to  a  class  of  cases  which  are  not  within  the  scope  of  its  philosophy. 

Moral  insanity  is  now  as  well  imderstood  by  medico-jurists,  and  al- 
most as  well  established  by  judicial  recognition  as  the  intellectual  form. 
Mentally,  man  is  a  dualism  consisting  of  an  intellectual  and  a  moral 
nature.  It  is  this  peculiar  nature  that  exalts  him  above  the  animal,  and 
makes  him  legally  and  morally  a  responsible  being.  The  animal  has 
neither  reason  to  guide,  nor  a  moral  will  to  control  its  passions.  Pas- 
sion governs  and  instinct  alone  guides  its  conduct.  It  is  therefore  not 
responsible  to  the  criminal  law.  But  a  proijcr  man,  in  a  sound  and 
moral  state,  with  '■'■  a  mons  sano  in  corj)ore  sa)io,"  has  peculiarly  and 
pre-eminently  the  light  of  reason  to  guide  him  in  his  jiatlnvay  of  duty, 
and  also  has  a  free  and  rational  presiding  will  to  enable  him,  if  lie  so 
choose,  to  keep  that  way  in  defiance  of  all  passion  and  temi)tation.  It 
is  this  intellectual  and  moral  nature  alone  that  makes  him,  in  the  proba- 
tionary sense,  a  man,  and  holds  him  responsible  for  his  voluntary  con- 
duct. And  it  would  be  as  useless  and  cruel  to  hold  him  accountable, 
either  criminally  or  morally,  for  an  act  done  without  a  free,  rational 
and  concurrent  will,  as  it  would  be,  if  his  reason  had  been  in  total 
eclipse. 

The  common  law  progresses  with  all  other  sciences  with  which  it  is 
affiliated  as  a  growing  and  consistent  whole.     And  consequently,  as 
the  science  of  man's  moral  nature  has  developed  the  phenomenon  of  in- 
43     • 


t;7t 


DUrNKKNNKSS. 


Siiillli  ''.  ( 'oiiiinoiiwi'.'iltli 


sane  affoclioiis,  craolionH,  iiiul  passions,  wliicli  either  neiitrali/e  or  sul>- 
Jiigiite  tiie  will,  iiuMlical  jiirispnHleiice  iimm ionizes  tiiis  morbid  and 
over\vhclmiii<j;  iiilliieiice  as  inmal  iiisiinil\ ,  and  itionouiices  JL  as  excul- 
patoi'v  as  tlio  otlier  form  cnlled  intellect nal  insanity.  No  enliy;htened 
jurist  now  d()ul)t.s  tho  existence  of  such  !i  type  of  moral,  contradistin- 
<;uished  from  intelleetind,  insanity  as  liomicidid  mania  or  morltid  and 
uncontrollahle  a|)|tc(ite  for  man-killing;  and  pynimania.  or  the  like  pas- 
sion for  Innisti  burnini;' ;  and  kleptomania,  or  an  ii  resistible  inclination  to 
steal.  In  each  of  tluise  eases,  and  others  of  a  kindri'd  eliaractcr, 
wliether  the  nnnalural  passion  bo  eongenital  or  only  the  offspring  of 
some  supervenient  cause,  moral  unhinifemeiit,  anil  a  snltjngated  or  sub- 
sidized will,  are  the  invariable  eharaett'ristics.  This  is  disease,  and  tho 
man  thus  doomed  to  the  anarchy  of  morbid  and  ungovernable  jiassion-- 
is,  in  law  as  well  as  in  fact,  insane,  anil  to  the  cxti-nt  of  the  operation 
of  that  blind  and  brutal  inlluenee,  he  may  be  no  more  rc8i»onsiblc  than 
a  tiger  or  other  brute.  But  if  his  insanity  extend  no  further  than  a 
morbid  perversion  and  preternatural  power  of  insane  passion  or  emo- 
tion, he  not  only  "  knows  right  from  wrong,"  but  knows  also  that  tho 
act  he  is  im|)clled  to  do,  is  forl)idden  both  by  moral  and  human  law. 
Yet,  nevertheless,  his  will  being  {laialyzed  or  subordinated,  the  uneon- 
trollable  appetite  ncji'ssitates  an  act  which  he  knows  to  be  wrong  and 
justly  punishable.  But  as  he  was  a  helpless  puppet  in  the  hands  of 
Briarean  passions  he  is  no  more  a  lit  8ul)jectof  punishment  than  an  ani- 
mal without  a  controlling  will,  or  than  he,  himself,  would  have  been, 
had  he  U'ver  been  blessed,  with  that  moral  pilot  of  the  passions.  The 
instrucUoii  as  giviMi  excluded  any  such  insanity  from  the  jury.  The  in- 
struction given  by  the  circuit  judge  in  the  case  of  Cruhaiti  v.  Commoii- 
ivealth  was  much  moi-o  eomi»rehensive,  and  as  nearly  right  as  any  wc 
have  seen  on  that  subject  in  any  case.  Ft  was  as  follows :  '"The  true 
test  of  responsibility  is,  whether  the  accused  had  snflicient  reason  to 
know  right  from  wrong,  and  whether  or  not  he  liad  >a-  ent  power  of 
control  to  govern  his  actions." 

The  instruction  we  have  been  consid'  a  this  case  ^   is,  therefore, 

not  only  inapplicable  to  the  species  of      -unity  relied  on  by  the  appel- 
lant, but  was  radically  defective  in  princip!'  . 

Deeming  further  amplitude  unnecessary,  ami.  Ihcrefore,  unbefitting. 
we  conclude  that,  for  the  foregoing  errors,  the  verdict  and  judgmen  n 
this  case  ought  not  to  stand. 

Wherefore,  the  judgment  is  reversed,  the  verdict  set  aside,  and  the 
cause  remanded  for  a  new  trial. 


iMJi  \m;.\m;>s  may   i:i:i>i  (  i;  t  ijimk. 


c?;. 


Idiiiiiii   i\  ( 'ciiiiinoiiwi'iiltli. 


DRUNKENNKSS    MAY    IJKDIT'K   OHADK   OF  CRIME. 

Blimm  V.  Commonwealth. 

[7  Bush,  ;!2n.] 

In  the  Court  of  Appeals  of  Kentucky.  Summer  Term,  1870. 

Hon.  QKonoK  Robehtson,  Vhicf  Justice. 

"      MOKDKCAI  IIaKUIN,     \ 

"    BKi.VAmiJ.l'K'rKfisA  Judges 
"    William  Lindsay,    j 

Drunkenne*.  may,  unrh,r  peculiar  cirrumatanc.s  repelling  malice,  reduce  the  grade  <.f 
the  criinu  from  murder  tu  niausluutflitcr. 

Appeal  from  IJooiie  Ciix'iiit  Court. 

.S-.  .1.  JIayerty,  George  (J   Drane  iiiid  John  L.  Scott,   for  appellant. 

John  Rodman,  Atloriiey-CiciiLM-al,  for  uppclloc. 

Cliit'f-Justiee  Robkhtson  dolivorcd  tlic  opinion  of  the  court. 

'J'lie  appellant,  Peter  Blimm,  clmi-ired  with  the  wanton  murder  of  a 
little  white  lH;y,  wit!i(,ut  any  known  provocation  or  apparent  motive,  was 
indicted,  tried  and  sentenced  to  the  gallow.s  at  a  special  tei-m  of  the 
P.oone  Circuit  Court,  onlered  only  a  few  days  after  the  homicide  and 
commencing  on  the  eighth  day  after  the  ordei-  was  mad(!  in  VMcation. 

(Omitting  an  exception  taken  on  a  question  of  jurisdiction. ) 

The  only  contestai.le  question  in  tlie  i-eeord  within  tiie  range  of  our 
appellate  power  is  involved  in  instructions,  and  that  is  confnied  to  the 
liypothesis  assumed  in  the  testi.n(jny  that  when  the  homicide  was  perpe- 
trated the  appellant  was  drunk,  which  fact,  according  to  the  case  of 
Smith  V.  CommonweaUh,^  to  which  we  adhere,  may,  imder  peculiar  cir- 
cumstances rei)elling  malice,  reduce  the  grade  of  the  crime  from  mur- 
der to  manslaughter.  But  this  mitigating  tendency  of  intoxication  is 
not  allowable  when  that  condition  of  mind  has  been  produced  for  the 
purpose  of  stimulating  a  meditated  felony,  or  even  when  it  is  known  to 
excite  homicidal  or  other  destructive  passions,  because  such  an  inebri- 
ate, hostis  humani  generis,  evinces  express  malice.  But  when,  in  the 
absence  of  any  such  aggravating  circumstances,  a  responsible  being, 
drunk  from  accident  or  mere  sensuality,  takes  human  life  without 
rational  motive,  and  which  he  never  would  have  attempted,  but  always 
would  have  revolted  at,  when  sober  and  self-poised,  the  principle  of  the 
decision  in  Smith  v.  Commonwealth,  allows  the  jury  to  consider  the  ab- 

'  1  DuT.  224. 


676 


DHINKEXXESS. 


Bliinin  v.  Coinmouwciilth. 


normal  condition  of  the  mind  and  passions  so  supcrindncod  as  a  cir- 
cumstance whicli,  while  it  should  not  excuse,  may  tend  to  repel  the 
implication  of  malice  essential  to  the  crime  of  munUM*. 

In  this  case  it  appears  that  the  appellant,  on  the  day  of  the  homi- 
cide, had  gone  to  Burlington,  and  there,  driiiking  much  liquov  and  try- 
ing to  buy  the  tincture  of  cantharides,  he  acted  and  talked  strangely  ; 
and,  returning  homeward,  cut  the  boy's  throat,  witliout  any  imaginable 
motive,  unless  he  killed  him  to  conceal  a  meditated  crime  on  another. 
But  there  is  now  nr»thing  sufHcient  in  the  evidence  to  allow  the  imputa- 
tion of  such  a  horrible  motive.  Proof  that  he  was  drunk  was  pertinent, 
in  this  state  of  case,  as  a  circumstance  helping  to  account  for  an  act 
otherwise  mysteriously  inexplicahle  ;  and  the  jury  had  a  right  to  weigh 
that  fact  and  give  it  its  proper  effect  on  tlie  question  of  motive. 

If  the  jury,  on  all  the  facts,  had  believed  that  when  he  killed  the 
boy  the  appellant  had  no  at'tual  motive  ;  and  also,  that  without  know- 
ing or  having  from  experience  cause  to  apprehend  that  what  he  drank 
that  day  might  instantly  produce  delirium,  or  so  inflame  the  passions  or 
unhinge  the  mind  as  to  jeopard  human  life,  which  would  have  been  in 
no  danger  from  his  hand  had  he  been  perfectly  sober  and  self-possessed  ; 
and  also  that  he  drank  the  intoxicating  liquor  merely  for  sensual  grati- 
fication or  exhilaration,  and  not  for  stimulating  some  meditated  crime, 
then  they  might,  and,  perhaps,  ought  to  have  found,  that  there  was?  no 
implied  motive,  and  that,  therefore,  the  appellant  was  not  guilty  of 
murder  for  which  he  should  be  hung,  but  of  manslaughter  only,  for 
which  he  should  be  sent  to  the  penitentiary. 

This  we  consider  both  sound  philosophy  and  good  law,  and  when  pru- 
dently applied,  illuft  tes  the  general  principle  recognized  in  Smith  v. 
Commomvealth. 

On  the  trial  several  witnesses  testified  that  when  much  excited  by 
liquor  the  appellant  became  partially  delirious,  gave  way  to  violent  pas- 
sions and  insane  delusions,  often  imagining  that  "  somebody  was  afttr 
him,"  and  twice  attempting  suicide. 

On  the  foregoing  facts,  combined  with  strong  proof  of  the  homicide 
by  the  appellant,  the  Circuit  Court  by  its  instructions  accurately  defined 
murder,  and  exculpating  insanity  without  any  definition  of  manslaughter, 
or  any  other  allusion  to  the  appellant's  mental  condition,  than  that  im- 
plied by  the  instruction  on  insanity  as  an  excuse  for  homicide,  and 
Avhich  was  more  favorable  in  one  aspect  than  the  appellant  was  entitled 
to  expect  on  the  facts  and  the  law ;  for  transient  insanity  produced  by 
bia  voluntary  act  would  not,  as  the  instructions  implied,  excuse,  but 
at  the  utmost  only  extenuate  the  homicide  from  murder  to  manslaughter. 


DKINKENNESS. 


G77 


Mav  IlodiiLc  (iradi!  of  Crime 


as  a  cir- 
repcl  the 

he  homi- 
aiul  t?y- 
rangely ; 
lagiiiable 
another. 
;  imputa- 
lertinent, 
or  an  act 
to  weigh 

killed  the 
ut  know- 
he  drank 
issions  or 
been  in 
assessed  ; 
iial  grati- 
}d  crime, 
e  was  no 
gnilty  of 
only,  for 

hen  pru- 
Smith  V. 

cited  by 
lent  pas- 
ras  al'tiv 

homicide 
y  defined 
anghter, 
that  im- 
;ide,  and 
entitled 
need  by 
;use,  but 
aughter. 


Proof  of  his  being  drunk  could  be  available  to  him  only  for  suih  ex- 
tenuation, whether  his  intoxication  caused  temporary  delirium  or  not. 
Without  resulting  in  technical  insanity,  it  might,  however,  have  been 
such  as  to  reduce  the  grade  of  a  crime  so  unaccountable  by  helping  to 
repel  implied  malice.  What  he  needed  most,  therefore,  was  a  specific 
and  full  instruction  on  the  subject  of  mitigation,  and  not  of  excuse. 
But  the  instructions  as  given  excluded  from  the  jury  any  consideration 
of  that  subject,  and  consequently  the  court's  pretermission  of  it  was 
misleading,  and  the  verdict  as  rendered  was  the  inevitable  consequence, 
unless  he  was  insane. 

According  to  the  Criminal  Code,  the  presiding  judge  should,  when 
asked  for  instructions,  give  the  whole  ':.  .v  api)licable  to  all  the  facts ; 
and  this  Avas  peculiarly  proper  in  a  case  s  >  sudden  and  huiried,  and  es- 
pecially as  the  court,  having  appointed  counsel  to  defend,  should  have 
presented,  sua  sponte,  to  the  jury  all  the  law  to  which  the  appellant  was 
entitled.  But  thouy:!!  the  argument  in  this  court  has  not  discussi  d  the 
mitigating  principle,  nevertheless  the  appointed  counsel  offered  on  the 
trial  the  following  ins;truction :  "The  jury  are  instructed  that  if  they 
believe  from  the  evidence,  beyond  a  reasonable  doubt,  that  the  piisoner 
(lid  the  killing  charged,  yet  if  they  believe  that  he  was  drunk  at  the 
time,  they  may  mitigate  the  offence  from  murder  to  manslaughter. 

That  proposition  might  have  been  misunderstood  or  misapplied  with- 
out some  qualification  as  to  tho  degree  of  drunkenness,  and  also  as  to 
the  counteracting  hypothesis  of  getting  drunk  to  stimulate  crime,  or  of 
the  appellant's  knowledge  of  the  probability  that  delirium  or  destructive 
[)assion  would  be  the  consequence.  But  the  court  rejected  it  without 
suggesting  any  modification  or  giving  any  other  instruction  on  tliat  sub- 
ject. In  this  there  was  an  inadvertent  omission  which  may  have  been 
prejudicial  to  the  appellant. 

When  intoxicating  liquor  inflames  and  perverts  the  passions,  and 
blinds  the  reason,  as  it  often  does,  a  good  man  may  witlujut  provoca- 
tion be  unconsciously  precipitated  into  a  crime  which  he  had  never 
meditated,  and  which  he  never  could  have  attempted  when  properly 
sober  and  self-possessed.  To  hang  him  would  be  a  cruel  penalty  for 
being  drunk — to  excuse  him  would  be  to  encourage  vice  and  disturb 
social  order  and  security.  lie  should  be  punished,  but  not  as  the  secret 
assassin  or  highway  robber.  The  crime  in  that  case,  by  whomsoever 
perpetrated,  was  signally  monstrous  and  mysterious.  The  perpetrator 
may  have  been  unconscious  of  the  act,  or  of  its  guilt,  or  it  may  have 
been  i)rompted  by  momentary  illusion  or  blind  passion  beyond  control. 
Why  else  was  the  brutal  act  done?  And  if  so  done,  the  gallows  is  not, 
luit  imprisonment  is,  the  legal  retribution. 


(378 


DRUNKENNESS . 


State  r.  Donovan. 


Tlieii  we  think  that  the  CiiTuit  Court  ought  to  have  defined  maliee 
express  and  implied,  and  disMiminating  between  murder  and  man- 
slaughter; and  tlu'ij  instnic-ted  the  jury,  in  substance  and  effect,  that 
if  the  accused  cut  the  boy's  tliroat,  his  being  drunk  at  the  time  is  un 
legal  excuse,  nor  even  uiitigatiny  circumstance,  if  that  condition,  how- 
ever stultifying,  was  tlie  offsi)ring  of  meditated  crime,  or  was  known  to 
be  the  i)arent  of  [)assions  or  delusions  dangerous  to  the  lives  of  other 
persons  ;  and  also  that,  if  not  so  intended  or  so  known,  then  if  the  jury 
should  believe  that  it  was  the  cause  of  the  homicide,  which  otherwise 
would  not  have  been  per[)etrated.  the}'  might  consider  it,  with  all  the 
other  facts  conducing  to  show  the  existence  or  non-existence  of  malice, 
or  fixing  the  grade  of  the  crime  ;  and  that  if  they  should  then  rationally 
doubt  the  imputed  maliee.  they  should  convict  of  manslaughter,  and  fix 
the  period  of  conlineuicnt  in  tiic  penitentiary. 

If  thus  substantially  instructed,  the  verdict,  whatever  it  may  ha\c 
been,  would  have  been  more  satisfactory  to  all  concerned,  and  far  more 
assuring  that  justice  had  been  fairly  and  fully  done  according  to  tlif 
law  of  the  land. 

What<'\er  he  may  be.  or  wliatever  shall  or  ought  to  l)e  his  doom,  it  is 
the  uuty  of  this  court,  as  the  last  judicial  resort,  to  take  care,  in  deli- 
unee  oi'  all  contingent  consequences,  that  he  shall  have  a  fair  and  delib- 
erate tiial  .'U'cordiiig  to  law. 

The  Connnonwialth  wants  no  more;  her  interest  requires  that  much, 
and  our  duty  to  her,  as  well  as  to  him,  demands  it. 

Wherefore  the  judgment  of  conviction  is  reversed,  and  the  cause  re- 
manded for  a  new  trial. 


INTENT— DRUNKENNESS  RELEVANT  OX  TROSECUTION  FOR  ASSAULT 
WITH   INTENT  TO  COMMIT  HAI'E  —  ERRONEOUS  INSTRUCTIONS. 

State  v.   Donovan. 

[U;  N.  \V.  Rop.  20G.] 
In  the  /Supreme  Court  of  Icnva,  June,  18S3. 

1.  DnuikenneHB  —  Oflfer  of  Evidence -- Remarks  of  Judge.  —  On  an  offer  to  prove  th.' 

priyinnv's  intoxiciition  lit  the  lime  of  tlie  rdninii;  ^un\  of  llie  uUeged  crime,  the  court  re 
mari.cii :  "  If  you  offer  it  us  ii  defence  I  think  it  is  imniiitcriul,  because  I  shall  inntrucl 
the  jury  that  drunken ncBi>  is  more  of  an  aj^gravation  than  an  excuse."    Held,  error. 

2.  An  instruction  which  slates  that  there  \va.«  some  cvldem^e  tending   to   show  that 

llie  defendant  was  drunk  is  pii.'iloading. 

-.  On  a  trial    f:r  assault  with   intent   to  commit  rape,  if  the  prisoner  was    M 

iliuiik  as  to  be  iiic;i)ialil.'  of  fm  hhiijj:  mii  nilenl  to  r:ivi>h,  he  .'<hould  be  aequittcd. 


led  malice 
and  man- 
ffect,  that 
time  is  lU) 
tion,  liow- 
known  to 
i  of  other 
f  the  jury 
otherwise 
th  all  tlie 
Df  malice, 
rationally 
ir,  and  fix 

3iay  have 

far  more 

ag  to  till' 

ooni,  it  is 
L',  in  deli- 
md  dclih- 

lat  much, 

cuude  re- 


ISSAULT 

["IONS. 


>  prove  thi- 
le  court  re 
all  inntruct 
(,  error. 

show  that 


er  wa8    i«i) 
cd. 


UUUMvKXXKS.S. 


679 


Uelevant  on  Question  of  Intent. 


Appeal  from  Hardin  District  Court. 

Tie  defendant  was  convicted  of  an  assault  with  intent  to  commit  a 
rape,  and  appealed. 

./.  H.  Scales  and  J.  S.  Robertu,  for  appellant. 

McPherson,  Attorney-General,  for  the  State. 

Beck,  J. —  1.  The  evidence  clearly  shows  the  assault  committed  by 
the  defendant  upon  the  prosecutrix.  Hut  there  was  evidence  tending 
to  sliow  that  defendant  was  drunk  at  tlie  time.  During  the  trial,  upon 
an  offer  of  evidence  tending  to  show  defendant's  condition,  the  court 
remarked  in  the  presence  of  the  Jury,  referring  to  the  evidence:  "If 
you  offer  it  as  a  defence,  I  think  it  iniinaterial,  l)ecause  I  shall  tell  the 
Jury  that  drunkenness  is  more  of  an  aggravation  than  an  excuse."  N<j 
explan.'ition  of  the  remark  was  made  to  the  jury.  We  think  it  ought  not 
to  have  been  made,  and  was  piejudicial  to  defendant.  The  error  was 
not  cured  by  an  instruction  given  to  tlie  jury  which  we  will  now  proceed 
to  consider. 

2.  Ill  the  sevntli  instruction  tiie  eourt  declares  that  '•there  is  some 
evidence  tending  to  show  that  defendant  was  drunk."  This  huiiruaire. 
we  are  constrained  to  believe,  would  be  understood  as  expressing  the 
opinion  of  the  court  as  to  tiie  quantity  and  weight  of  the  evidence  on 
the  (juestionof  defendant's  drunkenness,  which  was  unfavorable  to  him. 
Indi'cd,  the  expression  will  hardly  bear  any  other  interpretation. 
Without  the  qualifying  word  •'  some  "  the  expression  would  have  been 
free  from  objection. 

3.  In  the  same  instruction  the  court  directs  the  jury  that  drunken- 
ness is  no  excuse  for  the  perpetration  of  a  crime.  But  the  jury  are  in- 
formed that  the  drunkenness  of  defendant  may  be  consitlered  in  order 
to  determi'.i  ■;  his  intent.  The  following  language  is  used  in  expressing 
this  discretion.  "  Whether  defendant  at  the  time  of  the  assault  was  too 
diunk  to  be  capable  of  exercising  his  will,  and  forming  in  his  mind  a 
purpose  to  ravish  the  girl  —  in  short,  to  distinguish  lietween  right 
and  wrong  — is  a  question  of  fact  for  you  to  determine  from 
all  the  facts  and  circumstances  disclosed  by  the  evidence." 
The  instruction  thus  calls  the  attention  of  the  jury  to  certain 
facts  and  circumstances  to  be  considered  by  them,  and  directs 
the  jury  that  if  defenilant  '•  was  in  too  imbecile  a  condition  to  form  a 
(h'sign  or  purpose  to  ravish  the  girl,"  they  could  not  find  him  guilty. 
We  think  the  jury  were  unnecessarily  sent  into  the  uncertain  field  of 
inquiry  relating  to  the  capacity  of  defendant  to  exercise  his  will  and 
"to  distinguish  between  right  and  wrong."  and  that  the  jury  may  have 
been  tempteil  into  the  ri'gioii  (  f  speculation  r;ither  than  directed  to  con* 


G80 


DRUNKENNESS. 


Wood  V.  State. 


elusions  to  be  drawn  from  the  facts  by  the  aid  of  common  sense  and  the 
obiigaLions  of  every-day  life.  Tlie  jury  should  have  been  plainly  told 
that  if  they  found  from  the  evidence  that  defendant  was  so  drunk  that 
he  was  incapable  of  forming  an  intent  to  ravish  the  prosecutrix  they 
should  find  him  not  guilty. ' ' 

[Omitting  rulings  on  other  questions.] 

Reversed. 


LARCENY  —  INTENT  —  DRUNKENNESS 

Wood  v.  State. 

[34  Ark.  ;U1;  30  Am.  Rop.  13.] 
In  the  Supreme  Cotirt  of  Arkansas^  November  Term,  1879. 
Hon.  E.  II  ExoLisii,  Chkf  Justice. 
"    John  R.  Eakin,   }  •^"'^^««- 

One  wron^fally  taking'  the  property  of  another,  but  too  drunk  to  entertain  a  feIonioa» 
intent,  cannot  be  convicted  of  larceny. 

Conviction  of  larceny.     The  opinion  states  the  case. 

Henderson,  Attorney-General,  for  the  State. 

Hakrison,  J. —  The  appellant  was  tried  and  convicted  of  the  crime  of 
grand  larceny  in  stealing  a  pistol,  the  property  of  one  Cheek. 

The  pistol,  which  was  of  the  value  of  $8,  was  taken  from  the  room  of 
the  owner,  at  a  hotel,  and  out  of  a  coat  pocket,  on  the  night  of  the  fiftli 
of  August,  1879,  and  was,  on  the  fifteenth  of  the  same  month,  found  in 
the  defendant's  possession. 

Tlie  defendant,  a  lawyer,  had  been  for  three  or  four  years  ver}'  in- 
temperate, and  for  several  weeks  before  he  was  found  with  the  pistol  in 
his  possession,  almost  continuously  drunk.  On  the  night  of  the  fifteenth 
of  August  he  was  very  drunk  —  according  to  one  of  the  witnesses,  crazy 
drunk  —  and  the  constable,  learning  that  he  had  a  pistol,  to  prevent  his 
doing  harm,  took  it  from  him,  wlien  it  was  found  to  be  the  pistol  that 
had  been  taken  from  Clieek's  room.  When  it  was  taken  from  the  de- 
fendant, he  said  it  had  been  given  him  by  one  Ilamp.  Lane,  who  had 
then  —  as  was  proven  at  the  trial  —  loft  the  county.  Several  witnesses 
testified  that  tlie  defendant's  conduct  during  his  spree,  or  drunkenness, 


INTENT    KEQUISITE   TO   LAKCKNY. 


681 


Drunkenness  may  Prevent  Intent. 


was  strange  and  unnatural  -  quite  different  as  is  the  effect  of  ordinary 
drunkenness  -  and  tl.at  lie  appeare,!  den.cnted  to  some  decree  One 
of  them,  a  physician,  ^vho  had  known  him  two  or  three  year!,  said  that 
there  were  times  during  his  spree  when  he  thought  he  did  not  know 
what  he  was  about,  and  he  believed  his  mind,  by  long  and  excessive  in- 
<lulgence  in  ardent  spirits,  had  become  impaired  ;  and  another  physician, 
who  was  called  to  see  him  on  the  seventeenth  day  of  August,  the  da^ 
after  his  arrest  said  he  found  him  suffering  with  symptoms  of  mania  a 
potu,  and  that  the  functions  of  the  brain  were  partially  paraly/ed 

It  was  proven  that  the  defendant  had  previously  borne  a  good  char- 
acter for  honesty  and  integrity. 

The  court  was  asked  to  instruct  the  jury  for  the  defendant,  that  if 
they  believed  from  the  evidence,  the  defendant  took  the  pistol,  but  that 
at  the  time  he  was  so  under  the  inlluence  of  intoxicating  liquor  that  a 
felonious  intent  could  not  have  been  formed  in  his  mind,  they  should 
find  him  not  guilty  ;  which  instruction  the  court  refused  to  crive 

As  a  general  doctrine  voluntary  intoxication  furnishes  no^excuse  for 
crime,  even  when  the  intoxication  is  so  extreme  as  to  make  the  person 
unconscious  of  what  he  i.  d<,ing.     -  Perhaps  no  better  illustration  of 
the  doctrine      says  Mr.  Bi.hop,  ^'  can  be  given  than  to  state  its  appli- 
cation in  ordmary  eases  of  'homicide.     The  common  law  divides  all  in- 
dictable homicides  into  murder  and  manslaughter;    but   the  specific 
intent  to  kill  is  not  necessary  in  either.     A  man  may  be  guilty  of  mur- 
der w.tUout  intending  to  take  life.     He  may  be  guilty  of^ma.fslaughter 
without  so  intending ;  or  he  may  intend  to  take  life,  yet  not  commit  any 
crime  in  taking  it.     Now,  the  doctrine  of  the  courts  is,  that  the  inten- 
tion to  drink  may  fully  supply  the  place  of  malice  aforethought;  so 
that  If  one  voluntarily,  becomes  so  drunk  as  not  to  know  what  he  is 
about,  and  tlien  with  a  deadly  weapon  kills  a  man,  the  killin<.  will  be 
murder,  the  same  as  if  he  were  sober.    In  other  words,  the  mere  /act  of 
drunkenness  will  not  alone  reduce  to  manslaughter  a  homicide  which 
would  otherwise  be  murder,  much  less  extract  from  it  altogether  its  in- 
dictable  quality."  •     But  he  says  that  "  in  cases  where  the  law  requires 
not  general  malevolence,  but  a  specific  intent  to  commit  the  particular 
uct,  which  intent  must  concur  with  the  act  in  point  of  time,  in  order  to 
constitute  the  offence  charged  against  a  prisoner,  he  cannot  be  guilty, 
If  at  the  time  when  the  act  transpired  he  was  so  drunk  as  to  be  incapable 
ot  entertaining  such  intent."  2  ' 

"Intoxication  is  no  excuse  for  crime,"  said  Judge  Baldwin  in  U. 
^.  V.  Roudeuhmh,^  "  when  the  offence  consists  merely  in  doing  a  crim- 


'  1  Bish.  Crim.  I  p.^r,  sect.  401. 


/rf.  ieot.  40.S. 


'  IRaldw.SlT. 


682 


DRl'MvENXESS. 


State  r.  Ili-ll. 


inal  act,  without  regarding  intention.  But  wlicn  tlic  act  done  is  inno- 
cent in  itself,  and  criminal  only  when  done  with  a  corrupt  or  malicious 
motive,  a  jury  may,  from  intoxication,  presume  that  there  was  a  want  of 
criminal  intention  ;  that  the  reasoning  faculty,  the  power  of  discrimina- 
tion between  right  and  wrong,  was  lost  in  the  excitement  of  the  occa- 
sion. But  if  the  mind  still  acts ;  if  its  reasoning  and  discriminating 
lii'^ulty  remain,  a  state  of  partial  intoxication  affords  no  groiuid  of  a 
favorable  presumption  in  favor  of  an  honest  or  innocent  intention  in 
cases  where  a  dishonest  and  criminal  intention  would  be  fairly  inferred 
from  the  commission  of  the  same  act  when  sober. ' ' 

III  larceny  there  must  be  a  concurrence  with  the  act  —  an  intent  to 
do  it  —  and  also  a  felonious  intent ;  and  the  same  author  we  have 
quoted  says:  "A  bare  intentional  trespass  not  being  larceny,  but  the 
specific  intent  to  steal  being  necessary,  also,  if  one  who  is  too  drunk  to 
entertain  this  specific  intent  takes  property,  relinquishing  it  before  the 
intent  could  arise  in  his  mind,  there  is  no  larceny." 

The  instruction  should  have  been  given. 

[Omitting  minor  matters.] 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instructions 
to  grant  the  defendant  a  new  trial. 

Jtalgmevt  rerersed  and  cause  remapded. 


DRUNKENNESS— ADMISSIBLE  ON  QUESTION  OF  INTENT. 

State  v.  Bell. 

[29  Iowa,  an;.] 
Itx  the  Supreme  Court  of  Iowa,  June  Term,  1870. 

Hon.  Chester  C.  Cole,  Chief  Justice. 
"     Gkorgk  G.  WRiam," 
"     JosKiMi  M.  Hkck,        [judges. 
"     E LIAS  II.  Williams, 

Sronkennep*'  —Intent.  —  In  a  prosecution  for  breaking  and  entering  a  dwelling  house. 
with  intent  to  conunit  litrceny,  tlic  drunkenness  of  the  prisoner  at  the  time  ia  admissible 
in  evidence  on  the  question  of  intent. 

Appkal  from  Des  Moines  District  Court. 

•  /rf.,  seel.  411 :  Wenz  r.  <i:\ir   1  ]\'\.  Api>.  :!i>;  .lohnson  r.  State,  Id.  W);  Loza  v.  State,  Id.iSi. 


ENTElilNG   DWELLING    HOUSK   WITH    INTENT. 


C.S.J 


Iiitont  Miitcriiil  to  tlu;  Criiiif 


e  IS  inno- 
malicious 
a  want  of 
iscrimina- 
tlio  oeca- 
iminating 
Hind  of  a 
tention  in 
J  inferred 

intent  to 
we  have 
{,  but  tlu! 
drunk  to 
)efore  the 


itructions 
ianded. 


rT. 


ling  house 
admi.isiblo 


The  indictment  eliargos  the  crime  of  entering,  on  tlie  night  of,  etc., 
the  house  of,  etc.,  wiih  intent  to  commit  the  crime  of  larceny.  There 
was  testimony  tending  to  sliow  that  defendant  was  a  man  of  good  moral 
character  and  had  never  before  been  charged  witli  crime  ;  tliat  on  the 
evening  before  tlie  alleged  burglary  — New  Year's  eve  — he  went  with 
some  friends  and  acquaintances  and  drank  witli  them  until  about  eleven 
o'clock,  and  was  drunk  when  found  in  the  house,  where  he  was  arrested 
and  taken  to  jail. 

Tlie  court  instructed  the  jury,  that,  '•  if  defendant  entered  the  house 
with  intent  to  commit  tlie  crime  of  larceny,  it  malces  no  difference  in 
law  whetlier,  when  he  so  entered  he  was  drunk  or  sober.  Drunkenness 
is  no  excuse  for  the  commission  of  crime,  unless  it  has  been-of  so  long 
duration  as  to  amount  to  a  fixed  insanity,  or  to  such  an  extent  as  to 
render  the  party  accused  incapable  of  acting  or  thinking  for  himself." 

Tiiis  instruction,  asked  by  defendant,  was  refused:  "  If  you  find 
from  tlie  evidence  that  at  the  time  defendant  was  found  in  the  house  he 
was  drunk,  and  got  in  there  tlirough  drunkenness,  without  knowinp- 
where  he  was,  and  with  no  intent  to  steal  or  commit  crime  then  you 
should  acquit." 

To  reverse  tiie  conviction  following  this  instruction  and  refusal, 
defendant  prosecutes  this  a|)peal. 

Hall  and  B'lhln-in  for  the  appellant. 

H.  O'Connor,  Attorney-Genei-al,  for  the  State. 

Whigiit,  J.  — The  offence  here  charged  is  defined  by  tlie  statute  to 
be  the  entering,  without  breaking,  a  dwelling-house,  in  the  niglit  time, 
tolth  intent  to  commit  a  felony,  i  The  iidant  to  commit  a  felony  is,  then, 
one  essential  element,  and  without  it  the  offence  would  not  be  com- 
plete. Starting  with  this  fundamental  position,  it  seems  to  us.  in  viov, 
of  the  instructions  given  and  refused,  that  his  conviction  cannot  be 
sustained.  That  given, — though,  perhaps,  abstractly  correct.  —  w:is 
scarcely  just  to  defendant,  and  was  calculated  to  mislead,  — and  espe- 
cially so  after  the  nf  usal  of  that  asked  by  defendant,  inasmuch  as  it,  !:. 
effect,  treats  as  unimportant,  or  f.^ils  to  present  in  its  proper  and  ai)pr' 
priate  place,  the  material  fact  upon  which  defendant  relied  for  hi 
exculpation.  To  say,  that  if  the  intent  existed,  it  would  make  no  diffc  i- 
ence  whether  the  accused  was  drunk  or  sober  is  correct  enouo-h  :  and 
yet,  the  true  inquiry  was,  whether,  under  the  circumstances,  there  could 
have  been  the  criminal  intent.  This  intent,  it  is  granted,  may  exist  in 
the  mind  of  one  under  the  influence  of  intoxicating  liquor,  and  if  so, 


ite,  /(/.  idi. 


Hev.  Par.  42:',2. 


684 


DRUNKENNESS. 


State  r.  Bell. 


intoxication  is  no  excuse.  But,  instead  of  thus  presenting  tlie  case  to 
tile  jury,  tliey  wore  left  to  deduce,  as  a  conclusion  of  law,  not  as  a.  fact 
to  be  found,  tiiat  whicii  constitutes  tlie  ■wliole  crime.  If  defendant's 
drunlienness  was  such  as  talvc  from  his  act  the  criminal  intent,  tlien  the 
act  was,  as  to  tliis  offence,  not  criminal  and  the  jury  should  have  been 
so  told. 

If,  however,  this  instruction  could  be  overlooked  as  possibly  not 
prejudicnig  defendant's  riglits,  there  still  remains  that  refused, 
whicli,  in  our  opinion,  asserts  tlie  law,  was  applicable  to  the  facts,  and 
under  tlie  circumstances  sliould  have  been  given. 

Without  the  felonious  intent,  as  already  suggested,  the  crime  charged 
was  not  oomplete ;  and  if  defendant  was  so  drunk  —  there  being  no 
prior  criminal  intent  —  as  not  to  know  where  ho  was  and  with  no  intent 
to  commit  a  felony,  he  was  not  guilty.  If,  under  such  circumstances,  he 
has  taken  the  property  of  another,  there  being  the  absence  of  the  requis- 
ite spc'cilic  legal  intent  to  steal,  it  could  not  have  been  larceny  ;  and  if 
not,  noitlier  would  the  entering  be  l)urglaiious  within  tlie  moaning  of 
the  statute.  From  tlie  very  nature  of  the  offence,  there  must  be  the 
criminal  intent,  and  this  cannot  exist  in  the  mind  of  one  who  is  too 
drunk  to  entertain  a  specific  intent  of  any  kind.  The  doctrine  as  thus 
stated,  we  do  not  understand  to  be  controverted  by  the  Slate,  the  issue 
being  as  to  its  applicability,  or  whether  the  refusal  could  possibly  have 
worked  prejudice  to  defendant's  rights. 

In  our  opinion,  the  instruction  was  applicable,  and  the  principle 
involved  was  not  covered  by  the  instructions  in  chief.  Of  course,  we 
are  not  holding  that  defendant  would  be  excused  if  he  was  capable  of 
and  did  conceive  the  design  to  commit  this  offence  or,  as  the  same 
thought  is  sometimes  exjiressed,  he  would  not  be  exculpated  if  he  was 
possessed  of  his  reason,  and  capable  of  knowing  and  determining 
whether  his  act  was  criminal  or  otherwise.  If,  too,  the  drunkenness  was 
voluntary  and  defendant  had  in  view  this,  or  any  other  felony,  he 
would  not  be  protected.  The  drunkenness,  however,  is  a  proper  cir- 
cumstance and  should  be  weighed  by  the  jury  in  determining  whether 
there  existed  the  specific  intent  to  commit  the  felony  charged.  Wiiether 
he  had  the  intent  charged,  whether  he  was  capable  of  conceiving  it,  or 
whether  he  was  so  completely  overcome  by  his  debauch  as  to  be  incap- 
able of  forming  any  purpose,  were  questions  for  the  jury.  If,  as 
claimed  by  defendant,  he  blundered  into  his  house  through  a  drunken 
mistake,  under  such  circumstances  as  to  show  an  entire  absence  of 
reason,  or  such  as  would  indicate  the  inability  to  form  any  definite 
purpose,  and  especially  of  committing  a  larceny,  then  there  was  no 


VOLUNTARY  DRUXKEWESS  NO  DEFENCE. 


685 


Aliter   wlicro  Intent  must  be  Proveil. 


le  case  to 
t  as  &fact 
Pendant's 
then  the 
lave  been 

isibly  not 

refused, 

acts,  and 

3  charged 
being  no 
no  intent 
ances,  he 
lerequis- 
;  and  if 
'ailing  of 
it  be  the 
lo  is  too 
!  as  thus 
;he  issue 
bly  Imve 

principle 
jrse,  we 
[mble  of 
lie  same 

he  was 
irmining 
uess  was 
ony,  he 
per  cir- 
whether 
Whether 
git,  or 
e  incap- 

If,  as 
Irunken 
ence  of 
definite 
was  no 


guilt,  at  least  not  the  offence  here  charjjed.  The  accused  may  have 
been  guilty  of  a  very  great  fault,  l)ut  there  is  in  reason  and  law  a  very 
clear  distinction  between  this  and  the  intentional  injury  or  crime  con- 
templated by  the  statute.  1 

The  general  doctrine  is,  of  course,  conceded,  tliat  voluntary  intoxi- 
cation furnishes  no  excuse  for  crime  committed  under  its  influence.  And 
the  rule  is  just  as  reasonable,  and  b3'  no  means  in  conflict  with  that 
stated,  which  declares  that  if  an  offence,  from  its  peculiar  nature,  is 
only  committed  when  tiie  act  is  joined  with  the  intent,  then  if  by  one 
wif'out  the  intent,  who  by  drink  is  incai)ablc  of  entertaining  it,  and 
never  yields  thereto  the  sanction  of  his  will,  the  particular  offence  is 
not  committed  ;  for  of  whatever  defendant  is  guilty,  he  is  not  of  this, 
because  of  the  absence  of  an  essential  ingredient.  Or,  as  the  same  doc- 
trine, general  and  special,  is  stated  elsewhere:  ''Intoxication  is  no  ex- 
cuse for  crime,  when  the  offence  consists  merely  in  doing  a  criminal 
act,  without  regarding  intention.  But  when  an  act  done  is  innocent  in 
itself,  and  criminal  only  when  done  with  a  corrupt  or  malicious  motive, 
a  jury  may,  from  intoxication,  pKcsume  there  was  a  want  of  criminal 
intention."  ^  Or,  as  in  another  case,  ''  where  the  nature  and  essence  of 
a  crime  are  made  by  law  to  depend  upon  the  peculiar  state  and  condi- 
tion of  the  criminal's  mind  at  the  time,  and  with  reference  to  the  act 
done,  drunkenness,  as  a  matter  of  fact,  affecting  such  state  and  condi- 
tion of  the  mind,  is  a  proper  subject  for  consideration  by  the  jury. 
The  question  in  such  a  case  is,  what  is  the  mental  status?  "  ^ 

The  law  docs  not  jmply  the  intent  in  cases  of  the  kind,  from  the 
breaking  and  entering,  or  entering  without  breaking.  If  life,  however, 
be  taken,  by  the  use  of  a  deadly  weapon,  the  law  implies  malice,  and 
there  would  hence  be  murder,  though  the  perpetrator  was  di-unk.  This 
is  the  more  evident  when  we  know  that  one  may  be  guilty  of  murder 
without  intending  to  take  life,  as  lie  may  in  other  cases  intend  to  take 
life  and  yet  not  commit  a  crime.  Or,  still  again,  drunkenness  may 
quite  supply  the  place  of  malice  aforethought,  which  may  be  general, 
not  special ;  but  it  cannot  that  of  a  specific  intent.'*  We  confess  that 
the  doctrine  touching  cases  of  this  character  is  not  placed  upon  the 
clearest  ground  in  the  books.  Looking  at  the  question,  however,  from 
the  standpoint  of  reason  and  principle,  unassisted  by  authority,  we  be- 
lieve the  instruction  should  have  been  given,  and  the  judgment  below 
is,  hence. 

Reversed. 


1  Say's  Med.  Jur.  of  Ins.,  ch.  25,  and  see 
sects.  453,  455,  456. 

!!  United  States  v.  Roudenbnsb,  1  Bald.  614. 


3  Swan  V.  State,  4  Humph.  136. 
*  Bishop's  Cr.  Law,  vol.  1,  paragraphs 
389,  490, 491 ;  notes  and  cases  there  cited. 


<;8«) 


DRUNKKNNKHS. 


Scolt  V.  Stiili'. 


DRUNKENNESS  — KELEVANT  ON  QUESTION  WIIETIIEH  CHIME  WAS 

committed. 
Scott  v.  State. 

[12  Tex.  (A|)i).);il.] 
Inthe  Court  of  Appeals  of  Texas,  1S82. 
Hon.  John  P.  Whitk,  Presiding  Judge 

"       CMXTON  M.  WlNKLKK,  \    r,,  7«  , 

"     Ja.mksM.  Ihui,  'K«dflr.'.v 

Drunkenness  cannot  excuse  or  Justify  crime,  Imi  it  may  ht-  .>ilio\vn  in  order  to  de- 
tci'iiiiiie  wliL'ther  any  i  rime  or  a  iiarliciilar  ciiine  ha-  ln'cn  commiltiMl  at  all. 

Af'pkal  from  tho  District  Court  of  Dallas. 

Triod  before  Hon.  George  N.  Aldrich. 

Crawford  &  Sriiith,  W.  B.  Gano  and  J.  11.  iSkiles,  for  appellant. 

JI.  Chillton  Assistant  Attorncv-General  for  tlie  State. 

IlruT,  J. — The  appellant  was  convicted  for  an  assault  with  intent 
to  rob.  There  Avas  evidence  tending  to  show  that  Scott  was  drunk  at 
the  time  of  the  assault. 

Upon  this  subject  the  court  beloAV  charged  as  follows  :"  Voluntary 
drunkenness  fiu-nishes  no  excuse  or  justification  for  crime.  However, 
if  you  find  that  defendant  did  make  the  assault  as  ciiarged  in  the  in- 
dictment, and  if  3'ou  find  that  when  he  so  made  said  assault,  he  was  so 
drunk  that  he  did  not  know  what  he  was  doing,  n\u\  was  unable  to  form 
the  criminal  intent  necessary  to  commit  the  crime  charged,  then  you 
will  acquit  him.  But  any  amount  of  voluntary  drunkeiuiess  which  does 
not  reach  the  .sfafK.s' above  indicated,  would  not  furnish  any  excuse  or 
justification  for  the  commission  of  it." 

The  learned  counsel  for  appellant,  in  the  ])rief  and  argument,  insists 
that  this  charge  is  not  the  law,  and  that  therefore  the  judgment  should 
be  reversed.  We  listened  with  attention  and  great  pleasure  to  the 
argument  of  counsel  for  defendant,  but  arc  forced  to  the  conclusion 
that  this  charge  is  not  obnoxious  to  the  objections  urged  against  it. 

The  main  attack  is  made  upon  this  part  of  the  charge:  "  If  you  find 
that  when  he  so  made  tlie  assault  he  was  so  drunk  that  he  did  not  know 
what  he  was  doing. "  This,  we  think  is  correct ;  for  if  he  knew  what  he 
was  doing  he  knew  that  he  was  trying  to  rob  (the  converse  of  the  propo- 
sition), and  in  law  and  in  morals  he  sliould  be  held  culpable.  But  this 
part  of  the  charge  should  not  be  detached  fr(jm  that  which  is  directly 
c.uuiected  with  it.     It  proceeds,  '•  and  was  unable  to  form  the  criminal 


STATUS   OF    MINI). 


087 


Drunkenness  to  lie  Looked  '|'o. 


iiilontiiocessary  to  commit  the  crime  clmrgcil,  then  you  will  acquit  him." 
The  court  l)elo\v  admitted  evidence  of  drunketniess,  and  ai)i)li(>d  tiic  true 
i.rinciples  of  law  thereto  l»y  instructing  the  jury  in  effect,  tiiat  drunk- 
enness could  1)0  looked  to  in  passing  uimn  the  ability  to  form  the  crim- 
inal  iiitPid.  For  this  purpose,  and  this  alone,  can  drunkenness  he  shown 
in  a  case  like  this. 

Drunkenness  can  lie  looked  to  in  passing  upon  (he  statm^  of  mind  in 
murder  trials.  Where  the  question  is  whether  the  mind  \\i\r,  sufliciently 
calm  and  sedate  to  form  the  desire  to  kill,  an<l  to  i)roperly  comprehend 
the  consequences  of  the  act ;  the  i^tatas  of  tiie  mind  heing  the  test  by 
which  the  character  of  homicide  is  determined,  whether  murder  of  the 
first  or  second  degree.  We  are  not  aware  of  any  case  decided  by  o}ir 
appellate  courts  in  wliich  it  is  held  that  drunkenness  will  excuse  or 
Justify  crime.  To  thus  hold  wouM  }w.  a  solecism;  for,  if  in  fact  a 
crime  is  committed  we  are  not  aware  of  any  fact  which  can  excuse  or 
justify  its  commission.  The  law  knows  no  excuse  or  justification  of 
crime.  If  the  acts  which  ajnstitutc  the  crime  are  excused  or  justified  by 
law,  they  are  not  criminal.  Whilst  drunkenness  cannot  excuse  or  just- 
ify crime,  it  however  may  be  shown  in  order  to  determine  whether  any 
crime,  or  a  particular  crime  has  been  committed  at  all ;  but,  if  committed, 
though  the  party  be  ever  so  drunk,  there  can  in  the  very  nature  of  things 
be  no  excuse  or  justification. 

We  have  examined  all  of  the  other  errors  complained  of,  but  find  no 
errors  in  fact  —  that  is,  such  ei-ror,  over  which  we  have  revisory 
power,  as  will  require  a  I'cversal  of  the  judgment  of  the  court  below. 
The  judgment  is  affirmed. 

Affirmed. 


INTOXICATION  —  INTENT  —  INSANITY. 

RoBERTis  V.  People. 


[19  Mich.  401.] 
In  the  Supreme  Court  of  Michigan,  January  Term,  1S70. 

Hon.  James  V.  CAMPnEi.i.,  Chirf  Justice. 
"      Isaac  Chuistiancy,     \ 
"      Rr.x.JAMi.v  r.  Graves,  \  Aasociate  Justices 

"         TnoMAS  M.  COOLEV,       J 


1.  Intoxication  —  Intent.—  Voluntary  iiU'>xieatioii  will  not  excuse  acls  which  constitute 
an  offence.    Where,  lu.weviM,  the  oireiicc  chaiKeil  i.-  an  act  combined  with  an  intent  to 


mn 


DIUNKFANr.SS. 


Uolicrts  r,  Pt'oplo. 


cnininil  nil  otTunco  not  antunlly  coinniittcil,  If  tlif  jirisonor  wnH  romlored  by  intoxication 
InRiipublo  of  uiiturtalniiiKliio  intent,  hu  i^  not  ruBponrilblu. 
2.  Same.  —  If  a  ))ersnn  Iiuh  tlio  capiu'ity  to  form  tho  Intunt  to  l<illby  tho  inoiiiiK  iihocI,  his 
voluntary  iiitoxiciilioii  will  Im  no  protiiciion,  altlioimli  his  uuMital  facuilii's  were  tliuruliy 
HO  obscurcil  US  to  iiiuliu  liiin  incaixiblo  of  judging  butwcon  riKlit  and  wronj;. 

•\,  Insanity  occasioned  by  voluntary  intoxication  will  not  oxciisc  where  tho  porson  Is 
aware  of  lu>  liability  to  inrtaiiity  from  tlio  cauHO,  and  luiii  siitlicirnt  nitjiitul  iwipuciiN  lo 
form  an  intunt. 

4.  Insanity  Resultinfr  from  Intoxication.  —  Hut  intimity  (of  whicti  a  pcrnon  in  ignor 
lint)  rosultiiig  from  voluntary  into.\i(;ali>>n  will  render  a  person  not  respoiihibh!  wliore 
be  does  not  know  what  he  is  doing  or  wliy  lie  in  doing  the  act,  or  if  coiimcIous  of  llii.s,  Ik- 
IH  not  conscious  of  any  object  in  doing  it,  or  if  tbo  diN(>ased  mind  has  bo  pervortud  hia 
reaHou  tliiit  be  does  not  know  thiil  what  he  in  doing  is  wrong. 

Ekkou  to  Calhoun  Ciri'iiit  Court. 

D.  D.  Ilufjhcs,  for  plaintiff  in  en-or. 

Dwiijht  May^  Attornoy-General,  and  J.  H.  Lodge,  for  the  People. 

CiiRisriANcY,  J.  —  Thedefendantwa.'i  tried  in  the  Circuit  Court  for  tho 
County  of  Calhoun,  upon  an  information  charging  him  with  assaulling 
with  intent  to  nuiider  one  Charles  E.  Greble,  by  shooting  at  him  with  a 
loaded  pistol.  Exceptions  were  taken  to  several  requests  to  charge  and  to 
the  charge  given.  To  take  ui)  the  several  exceptions  separately,  many 
of  wiiich  embrace  similar  j)ropositioiis  in  different  forms,  would  lead  to 
prolixity  and  be  less  intelligible  than  to  consider  the  several  questions 
really  raised  by  the  exceptions.  And  as  the  bill  of  exceptions,  includ- 
ing the  evidence,  will  accompany  the  report,  it  is  unnecessary  to  report 
them  here. 

The  first  question  presented  by  the  record  is,  whether,  under  this  in- 
formation, the  jury  could  properly  find  the  defendant  guilty  of  the 
assault  with  the  intent  charged,  without  finding,  as  matter  of  fact, 
that  the  defendant  entertained  that  particular  intent? 

We  think  the  general  rule  is  well  settled,  to  which  there  are  few  if 
any  exceptions,  that  when  a  statute  makes  an  offence  to  consist  of  an  act 
combined  with  a  particular  intent,  that  intent  is  just  as  necessary  to  be 
proved  as  the  act  itself ,  and  must  be  found  by  the  jury,  as  matter  of 
fact,  before  a  conviction  can  be  had.  But  especially,  when  the  offence 
created  by  the  statute,  consisting  of  the  act  and  the  intent,  constitutes 
as  in  the  present  case,  substantially  an  attempt  to  commit  some  higher 
offence  than  that  which  the  defendant  has  succeeded  in  accomplishing 
by  it ;  we  are  aware  of  no  well  founded  exceptions  to  the  rule  above  stated. 
And  in  all  such  cases  the  particular  intent  charged  must  be  proved  to 
the  satisfaction  of  the  jury ;  and  no  Intent  in  law,  or  mere  legal  pre- 
sumption, differing  from  the  intent  in  fact,  can  be  allowed  to  supply 


Intoxication 

iM  UMud,  his 
cro  thuruliy 

le  purson  i^i 
ciiiincii}   ic) 

on  iH  i);nor 
Kiblo  wlierc 
s  of  tlii«,  III' 
rvertuU  hiit 


DOplo. 

rt  for  the 
ssmiltiiig 
im  with  a 
ge  and  to 
sly,  many 
d  load  to 
questions 
i,  inc'liid- 
to  report 

this  in- 
of  the 
of  fact, 

0  few  if 
)f  an  act 
ry  to  be 
atter  of 
offence 
istitutes 
higlier 
plishing 
i  stated, 
oved  to 
gal  pre- 
>  supply 


WHKN    sPKCII'ir    INTENT    UKgUISlTK. 


The  rrosuniptloii  from  the  Act. 


i\H\) 


the  i»lac'e  of  the  latter.'  This  eas  ,  so  far  as  regards  the  intention  to 
iiill,  i.s  not  identical  witii  niurdrr.  To  (Ind  the  defendant  guilty  of  tlio 
whole  charge,  it  is  tru*',  the  Jury  inuHl  find  the  inti-nt  to  kill  under  cir- 
cuinslaiices  which  would  hiivc  made  the  killing  murdiT — and  it  in  not 
denied  that  had  death  ensmd  in  the  present  case,  it  would  have  been 
murder.  lint  the  converse  of  the  jjioposition  does  not  necessarily  fol- 
low: that  because  the  killing  would  have  been  nuirder,  therefore  there 
must  liavc  been  an  intt-ntion  to  kill.  Murder  may  be  and  often  is  com- 
mitted without  any  spetilic  or  actual  intention  to  kill.  See  instances 
stated  in  1  Bish.  Cr.  Law.'-  And  no  such  specific  intent  is  therefore 
necessary  to  be  found.  This  difference  was  recognized  iu  Maher  v.  Peo- 
l)h\  above  cited. 

By  Baying,  however,  that  the  specific  intent  to  murder,  or  (which, 
under  the  circumstances  of  the  case,  would  l)e  the  same  thing),  the  in- 
tent to  kill,  must  be  proved,  we  do  not  intend  to  say  it  must  be 
proved  by  direct,  positive,  independent  evidence ;  but  as  very 
properly  remarked  Ity  niy  biother  Caaii-hkll  in  Peoplp  v.  Srott,^  the 
jury  "may  draw  the  inference,  as  they  draw  all  other  inferences, 
from  any  facts  in  evidence  which,  to  their  minds,  fairly  prove  its 
existence."  And  in  considering  the  question,  they  may  and  should 
take  into  consideration  tlie  nature  of  the  <lefendant's  acts  constituting 
the  assault ;  the  temper  or  disposition  of  mind  with  which  they  were  appa- 
rently performed,  whether  the  instrument  and  means  used  were  naturally 
adapted  to  produce  death,  his  conduct  and  declarations  prior  to,  at  the 
time,  and  after  the  assault,  and  all  other  circumstances  calculated  to 
throw  light  upon  the  intention  with  which  the  assault  was  made. 

The  principle  which  we  have  thus  endeavored  to  explain,  seems  to 
have  been  overlooked  by  the  court.  And  taking  the  whole  charge  (given 
ill  the  record),  together,  we  think  the  jury  were  in  effect  told,  that  if 
they  should  find  the  defendant  made  the  assault  alleged,  in  the  manner 
and  with  the  instrument  charged  in  the  information,  the  law  inferred 
the  intent  charged,  and  they  were  at  liberty  to  find  the  defendant  guilty, 
whether  they  were  satisfied  of  the  intent  or  not,  as  a  matter  of  fact  — 
unless  they  should  find  "  that  the  defendant  was  laboring  under  such  a 
defect  of  reason  from  disease  of  the  mind,  as  not  to  know  the  nature 


'  Rex  V.  Thomas,  1  East  P.  C.  417 ;  1  Leach, 
MO;  Kex  V.  Holt,  7  C.  &  V.  518;  Cnise'e 
Case,  8  C.  &  P.  541;  Rex  v.  Jones,  9  Jd. 
•i5S;  Regina  v.  Ryan,  2  Mood.  &  K.  2l:i; 
Rex  V.  Duffin,  Russ.  &  R.  .304 ;  Ogiltree  r. 
State,  28  Ala.  60:?;  Maher  v.  People,  10 
44 


Mich.  212;  People  v.  Scott,  6  Mich.  296  (per 
Campbell,  J.);  RoscoeCr.  Et. 775, 790;  Biab. 
Cr.  L.  sects.  «(«,  (167). 

=  Sects.  41'2  and  667. 

'■'  6  Mich.  2%. 


■ 


(190 


DRUNKENNESS. 


Roberts  v.  Peopli! 


and  quality  of  the  act  he  was  doing,  or  if  he  did  know  it,  that  he  did  not 
know  what  he  was  dcviiig  was  wrong." 

Tlie  second  question  raised  by  the  exceptions,  is  whether  the  vohm- 
tary  drunkenness  of  the  defendant,  imraediately  prior  to,  and  a1  the 
time  of  tl\e  assault,  to  a  degn^e  that  would  render  him  incapable  of  en- 
tertaining, in  fact,  the  intention  charged,  would  constitute  a  valid  de- 
fence, so  far  as  related  to  the  intent,  and  leave  the  def^^idant  liable 
only  for  what  he  actually  did  —  the  assault  without  the  aggravation  of 
he  intent. 

It  was  ver}'  properly  admitted  by  the  defendant's  counsel  in  his  re- 
quest to  charge,  that  if  the  defendant  had  formed  the  intont,  while  in 
possession  of  his  mental  faculties,  and  entertained  it  before  and  at  the 
time  lie  became  intoxicated,  his  subsequent  voluntary  intoxication  to 
whatever  extent,  would  not  shield  him  from  a  conviction  of  the  offence 
charged,  including  the  intent,  nor  even  for  niurdtr,  had  death  ensued 
from  the  assault.  And  the  principle  laid  down  by  Mr.  Bishop  in  his 
work  on  Criminal  Law,i  was  also  expressly  admitted,  that  "  when  a  man 
voluntarily  becomes  drunk,  there  is  a  wrongful  intent;  and  if,  wliile  too 
far  gone  to  have  any  further  intent,  he  does  a  wrongful  act,  the  intent 
to  drink  coalesces  with  the  act  done,  while  drunk,  and  for  tliis  combina- 
tion of  act  and  intent  he  is  criminally  liable."  But  it  was  insisted  thai 
the  application  of  this  case  woiiid  be  that  the  drunkenness  is  no  excuse 
for  the  assault,  but  being  charged  with  the  particular  intent  accompany- 
ing the  assault,  this  could  not  exist,  if  he  was  too  drunk  to  entertain  it. 
That  the  wrongful  intent  in  drinking  does  not  supply  or  aid  the  proof  of 
ail  intent  to  kill. 

The  correctness  of  the  principle  laid  down  by  this  court  in  People  v. 
Garbutt,^  is  not  denied,  tliat  "  a  man  who  voluntarily  puts  himself  in'o 
a  condition  to  have  no  control  of  his  actions,  must  be  held  to  intend  the 
consequences."  But  tins,  it  is  insisted,  includes  only  the  consequenci'.s 
which  do  actually  ensue  —  tlie  c^irae  actually  committed  ;  and  not  in  thi>-i 
case,  the  intent  cliarged,  if  the  defendant  was  at  the  time  incapable  of 
entertaining  it,  and  did  not  in  fact  entertain  it. 

We  think  this  reasoning  is  entirely  sound,  and  it  is  well  supported  bv 
authority.  ^ 


1  Vol.  1,  eect.  489. 

8  17  Mich.  '.)-i9. 

3  See  Uog.  V.  Cruise,  8  0.  &  F.  641 ;  Reg.  v. 
Moore,  3  C.  &  K.  ol9;  Pigmap  v.  Stale,  14 
Oliio,  5r)5;  United  States  »).  Uoiidenbush,  1 
Bald.  514;  I'irlle  v.  State,  ',t  lliiiiiph.  ()(>;{; 
Uuile  V.  State,  11  lluinpli.  154 ;  Swan  v.  State, 


4  Id.  136;  Mooney  17.  State,  33  Ala.  419;  Kelly 
ti.  State,  3  S.  &M.  518;  People  v.  Robinson,  2 
Park,  236;  People  v.  Ilanimill,  2  Iii.2£\, 
Keenan  v.  Com.,  44  Pa.  St.,  56;  People  r^ 
lielencia,  21  Cid.  544;  and  Bee  1  Bieh.  (Jr.L.i 
.sects.  490,492. 


did  not 

J  volnn- 
l  at  the 
lo  of  en- 
alid  de- 
nt liable 
ation  of 

a  his  re- 
while  in 
\(1  at  the 
nation  to 
J  offence 
I  cfAsued 
op  in  his 
eu  a  man 
while  to(i 
,he  inteiil 
eonibina- 
stcd  that 
lo  excuse 
company - 

ertain  it. 

proof  of 

People  V. 
Qself  into 
tend  the 
equencos 
lot  in  thi.^ 
apable  of 

)orted  by 


1.419;  Kelly 
Uobinson,  2 
2  Id.  2-2;'. . 
;  People  r- 
Bish.Ur.L., 


ASSAULT   WITH   INTKNT. 


691 


KviUeucc  of  Drunkenness  lielevaut. 


In  determining  the  question  whether  the  assault  was  commiUed  with 
the  intent  charged,  it  was  therefore  material  to  inquire  wliether  tlic  de- 
fendant's mental  faculties  were  so  far  overcome  by  the  effect  of  intoxi- 
cation as  to  render  hhn  incapable  of  entertaining  the  intent.     And  for 
this  purpose,  it  was  the  right  atid  duty  of  the  jury  —  as  ui)on  tlie  ques- 
tion of  intent  of  which  this  forms  a  pa  t  — to  take  into  consideration  the 
nature  and  circumstances  of  the  assrult,  the  actions,  conduct,  and  de- 
meanor of  the  defendant,  and  lis  acclaration  before,  at  the  time,  and 
.'ifter  the  assault ;  and  especially  to  consider  the  nature  of  the  intent 
and  wliat  degree  of  mental  capacity  was  necessary  to  enable  him  to 
entertain  the  simple  intent  to  kill,  under  the  circumstances  of  tiie  case  — 
or,  which  is  the  same  thing,  how  far  thu  mental  faculties  must  be  ob- 
.scured  by  intoxication  to  render  him  incapable  of  entertaining  that  par- 
ticular intent.     This  last  question  involves,  as  I  tiiinlv,  in  connection 
with  the  evidence,  a  principle  of  law  which  I  shall  presently  notice. 
Some  intents,  such  as  that  to  defraud,  wlwn  the  result  intended  is  more 
indirect  and  remote,  or  only  to  be  brought  about  by  a  series  or  combi- 
nation of  causes  and  effects,  would  naturally  involve  a  greater  number 
of  ideas,   and  require  a  more  complicated  mental  process,   than  the 
simple  intent  to  kill  by  tho  discharge  of  a  loaded  pistol.     The  question 
wc  are  now  considering  relates  solely  to  the  capacity  of  the  defendant 
to  entert     a  this  particular  latent.     It  is  a  question  rather  of  the  exer- 
cise of  the  will  than  of  reasonisig'  powers.     And  as  a  mutter  of  law,  I 
think  the  jury  should  have  been  instructed,  that  if  his  mental  faculties 
were  so  far  overcome  by  the  intor.ica*;ion,  that  he  was  not  conscious  of 
what  he  was  doing,  or  if  he  did  know  wliat  he  was  doing,  but  did  not 
know  why  he  was  doing  it.    u'  that  his  actions  and  the  means  he  was 
using  were  naturally  adapted  or  calculated  to  endanger  life  or  produce 
death;  then  he  had  not  sullicient  capacity  to  entertain  the  intent,  and 
in  that  event  they  could  not  infer  that  intent  from  his  acts.     But  if  he 
knew  what  he  was  doing,  why  he  was  doing  it,  and  that  his  actions  with 
the  means  he  was  using  were  naturally  adapted  or  likely  to  kill,  then  the 
intent  to  kill  should  be  inferred  from  his  acts,  in  the  same  maimer  and 
to  the  same  extent  as  if  he  was  sober.     But  that,  on  the  other  hand, 
to  be  capable  of  entertaining  the  Intent,  it  was  not  necessary  that  he 
should  so  far  have  the  possession  of  his  mental  faculties  as  to  be  capable 
of  appreciating  the  moral  qualities  of  his  acticns,  or  of  any  intended 
result,  as  being  right  or  wrong.     He  must  be  presumed  to  have  intended 
the  ol)scuration  and  perversion  of  his  faculties  which  followed  from  his 
voluntary  intoxication.     He  must  be  held  to  have  purposely  blinded  his 
moral  perceptions,  and  set  his  will  free  from  the  control  of  reason  —  to 


(592 


DRUNKEXXESS. 


Roberts  v.  People. 


have  suppressed  the  guards  and  invited  the  mutiny,  and  should,  there- 
fore, be  held  responsible  as  well  for  the  vicious  excesses  of  the  will, 
thus  set  free,  as  for  the  acts  done  l)y  its  promi)ting.  There  is  no 
ground  upon  which  a  distinction  can  safely  be  made  in  such  cases, 
between  the  acts  of  his  hands  and  those  of  his  will,  which  have  set  in 
motion  and  directed  the  hands.  He  must,  therefore,  be  held  equally 
responsible  for  the  will  or  intention,  as  for  the  act  resulting  from  it. 

But  he  is  not  to  be  held  responsible  for  the  intent,  if  he  was  too 
drunk  for  a  eonscion;-,  exercise  of  the  will  to  the  particular  end,  or,  in 
other  words,  too  drunk  lo  entertain  the  intent,  and  did  n"<  entertain  it 
in  fact.  If  he  did  entertain  it  in  fact,  though  but  iuv  the  intoxication 
he  would  not  have  done  so,  he  is  responsible  for  the  intent  as  well  as  tlu' 
acts. 

Wheii  the  question  is  one  rather  of  guilt}'-  knowledge  than  o*'  •  .)ar- 
ticular  intent  (as  in  United  States  v.  Rondenbvsh  and  Pigman  v.  /o.  'e, 
above  cited),  there  may  be  more  reason  for  holding  that  a  defendant,  in 
such  eases,  should  be  caijable  of  appreciating  the  moral  fjurlity  of  his 
actions  to  render  him  responsible  ;  and  so,  possi1)ly,  when  1  he  ;;ec  don^- 
is  innocent  in  itsell',  or  only  becomes  at  all  criminal  by  reason  of  fl:e 
particular  intent  chai-ged  ;  upon  such  cases  I  express  no  opinion.  But 
where,  as  in  this  case,  the  act  committed  if  itself  criminal,  without  the 
particular  intent,  and  especially  when  the  manner  in  which  the  act  was 
committed  and  the  means  and  instruments  used  are  naturally  and  obvi- 
ously adapted  to  j)ro(luce  death,  anil  dangerous  to  others,  whether  he 
intended  to  kill  or  not;  a  rule  which  siiould  hold  him  incapal)le  of 
entertaining  the  intent,  unless  lie  was  at  the  same  time  cognizant  of  the 
moral  quality  of  his  actions,  would  be  just  as  dangerous  as  if  the  same 
rule  was  applied  to  acts  committed  under  the  influence  of  intoxication, 
and  would  pi-actically  render  intoxication  a  substantial  )>rotection  to 
crime. 

But  the  Circuit  Court  held  in  effect  that  no  extent  of  intoxica1i";i 
could  have  the  effect  to  disjjrove  the  intent,  treating  the  intent  as  an  in- 
ference of  law  for  the  court  rather  than  i  question  )f  fact  for  the  jury. 
In  this  we  think  there  was  error. 

Thus  far  we  have  considered  the  question  of  intent,  as  affected  by 
the  voluntary  intoxication  alone.  But  the  question  of  insanity,  as  jif- 
fecting  the  intent,  was  also  raised,  and  this  upon  the  evidence  is  projiei 
to  be  considered  under  three  aspects. 

There  was  evidence  tending  to  show  that  the  mother  of  the  defen'l- 
ant,  who  was  living,  was  insane,  with  lucid  intervals,  and  had  been  ^'> 
for  the  preceding  five  years;  that  in  her  lucid  intervals  she  was  a  kinu 


I 


EVIDENCE    OF    INSANITY. 


(')fl3 


Iiitoxlciitioii. 


I,  thoro- 
the  will, 
re  is  no 
h  cases, 
e  set  ill 

equally 
m  it. 

was  too 
(1,  or,  in 
ertam  it 
)xicatioii 
ell  as  tlu' 


Df 


oar- 


V.  >o.    'C. 

iidant,  in 
ty  of  liis 
net  dor/? 
)n  of  tl.o 
on.  Bui. 
liout  tlic 

act  was 
nd  ol)vi- 
lether  lie 

pa1)le  of 
nt  of  tlie 

;he  same 
xi  cation, 
[^ction  to 

oxicatinn 
as  an  in- 
the  jury. 

I'ctcd  Ijv 
y,  as  !if- 
is  pr<n  iM- 

}  defend - 

been  !-<"> 

as  a  kiii'i 


and  quiet  woman,  but  that  paroxysms  of  insanity  were  brought  on  by 
any  excitement,  and  that  she  was  then  very  violent  towards  her  family 
and  friends,  and  that  defendant's  maternal  grandmother  had  died  in- 
sane. Thei'e  was  also  evidence  tending  to  show  that  the  disease  of 
insanity  was  hereditary,  and  that  in  families  where  it  Avas  hereditary  it 
might  lie  dormant  in  the  individual  member  of  the  farail}'  for  years 
and  then  manifest  itself ;  and  that  intoxicating  drinks  and  exciting  al- 
tercations were  prominent  and  usual  causes  of  its  development,  and 
tiiat  it  was  moi'e  likely  to  be  hereditary  on  the  maternal  than  i)atcrnal 
side. 

But  there  was  no  evidence  tending  to  prove  that  the  defendant  him- 
self had  ever  previously  exhibited  any  indication  or  symptcmis  of  insan- 
ity, except  what  might  or  might  not  be  inferred  fioiu  the  effects 
produced  upon  him,  on  a  single  occasion  of  intoxication,  or  the  drinking 
of  intoxicating  litpior':.,  when  two  ordinar}'  doses  or  drinks  of  whiskey 
had  been  administered  to  him  for  neuralgia,  by  which  he  was  deprived 
of  the  use  of  his  mental  faculties  and  became  ungovernable,  insisting 
that  he  must  go  to  the  State  of  New  York  immediately,  where  he  had 
formerly  lived,  although  he  had  not  contemplated  going  there  before  he 
took  the  whislce3^ 

Nor  was  there  any  evidence  tending  to  show  any  form  or  degree  of  in- 
sanity, distinct  from  and  indeiiendent  of  the  effects  of  intoxication,  on 
the  (lay  of,  or  after,  the  assi.ult,  unless  the  high  degree  of  excitement 
and  vindicliveness  aroused  by  the  verbal  altercation  with  Greble  before 
the  intoxicr.tion,  can  be  considered  as  such  evidence.  But  if  the  mani- 
festations of  mental  disturbance  from  drinking  the  whiskey  on  a  former 
occasion  alluled  to,  can  be  considei'cd  as  tending  to  show  anytiiing 
more  than  the  effeci'is  of  intoxication  upon  r^  sane  mind  somewhat  easily 
affected,  in  one  among  the  almost  inlinite  sarieties  of  form,  in  which 
those  effects  exhibit  themseo  es  in  men  of  lifferent  mental  and  physical 
organizations,  whose  minds  are  otherwise  sane  —  if  it  can  l»e  considered 
as  tending  to  show  that,  auove  and  beyond  the  effects  of  intoxication 
upon  a  sane  mind,  a  dormant  tendency  to  i'.isanity  had  been  aroused 
into  action,  it  would  still  tend,  in  this  ca&c  only  o  show  —  not  the  ef- 
fect of  insanity  alone,  as  independent  of  or  contra-distinguished  from 
intoxication,  but  the  effect  of  some  unknown  degree  of  insanity  com- 
l)ined  with  and  produced  by  the  intoxication  and  disiqipcaring  with  it, 
and  which  but  for  that  intoxication  would  not  have  occurred. 

If,  therefore,  the  intoxication  was  voluntary  on  his  part,  as  all  the  evi 
dence  tended  to  sliow,  unless  he  had  become  insane  before  he  resorted 
to  drinking,  as  [/lesently  cxplain<.'d  —  ajiy  degree  of  insanity  thus  pro- 


U 


r>\)\ 


DRUNKENNESS, 


Roberts  v.  People. 


duccd  would  be  a  part  of  the  consequences  of  such  voluntary  intoxica- 
tion. And  if  from  his  past  experience  or  inforraution,  he  had,  while 
sane  and  before  drinking,  on  that  da}',  good  reason  to  believe  that, 
owing  to  a  dormant  tendency  to  insanity,  intoxication  would  be  likely 
to  produce  an  extraordinary  degree  of  mental  derangement  beyond  the 
effects  likely  to  be  produced  upon  persons  clear  of  any  such  tendency, 
he  must  be  held  to  have  intended  the  extraordintuy  derangement,  as 
well  as  the  intoxication  and  the  other  results  produced  by  it.  And  the 
same  degree  of  mental  incompetency  would  be  required  to  render  him 
incapable  of  entertaining  the  intent,  whether  caused  by  the  intoxication 
combined  with  the  insanity'  thus  produced  or  by  the  intoxication  alone. 
And  the  same  princii)le  alread}'  laid  down  in  rc>ference  to  the  question  of 
capacity,  as  affected  by  intoxication  alone,  would  apply  with  equal  force 
to  tliis  aspect  of  the  case. 

But  if  he  was  ignorant  that  he  had  anj'  such  tendency  to  insanity, 
and  had  no  reason  from  his  past  experience,  or  from  information  de- 
rived from  others,  to  believe  that  such  extraordinary  effects  were  likel}' 
to  result  from  the  intoxication  ;  then  he  ought  not  to  be  held  responsible 
for  such  extraordinary  effects ;  and  so  far  as  the  jury  should  believe 
that  his  actions  resulted  from  these,  and  not  fi-om  the  natural  effects  of 
drunkenness  or  from  previously  formed  intentions  ;  the  same  degree  of 
competency  should  be  required  to  render  him  capable  of  entei'taining  or 
responsible  for  the  intent,  as  when  the  question  is  one  of  insanity  alone, 
which  I  now  proceed  to  consider. 

If  it  should  be  found  from  the  evidence  that  the  defendant  inherited 
a  peculiar  tendency  to  insanity,  which  was  liable  to  be  aroused  by  slight 
causes,  and  that  in  consequence  of  this,  and  l)efore  he  resorted  to 
drinking  on  that  daj',  the  verbal  altercation  he  had  with  Gre])le  in  the 
forenoon  had  aroused  this  diseased  action  of  his  mental  faculties,  to 
such  an  extent  that  he  did  not  know  what  he  was  doing,  or,  if  conscious 
of  this,  he  yet  was  not  conscious  of  any  object  in  doing  it;  or,  if  he 
did  iiot  know  that  what  he  was  doing,  or  the  means  he  was  using  wen- 
adapted  or  likely  to  kill ;  or,  though  conscious  of  all  these,  yet  if  the 
diseased  action  of  his  mind  had  so  far  overcome  or  perverted  his  reason 
that  he  did  not  know  that  what  he  was  doing  was  wrong ;  then  he  was 
not  responsible  either  for  the  intoxication  or  its  consequences.  And  if  he 
continued  thus  incapable  up  to  the  time  of  the  assault,  either  from  this 
cause  alone,  or  combined  with  the  supervening  intoxication,  he  was 
neither  riiorally  nor  criminally  responsible  for  his  acts  or  intentions. 

The  other  justices  concurred. 

A  new  tridl  miisf  be  awarded. 


LARCENY INTENT  —  INTOXICATION. 


695 


People  V.  Cmuraius. 


intoxication  —  intent  —  lallceny  —  instructions. 
People  v.  Cummins. 

[47  Mich.  334.] 

In  the  Supreme  Court  of  Michigan,  January  Term,  1882. 

Hon.  Isaac  Marston,  Chief  Justice. 
Benmamin  F.  Gravks,      1 
Tut)MA8  M.  CooLKY,         I  Associate  JusUccs. 
James  V.  Campbell,       j 


4( 


1.  Larceny  —  Intent  —  Sanity.  —  A  person  cannot  bo  guilty  of  larceny  whose  mind  oan- 

not  comprehend  all  the  essential  ingredients  of  the  oiTence,  and  recognize;  their  exist- 
ence. Therefore  an  instruction  lluit  one  who  knows  he  has  been  taking  property  not 
his  own  is  sane  enough  to  commit  the  crime  of  larceny  is  error. 

2.  Duty  of  Court  to  Instruct. —  A  prisoner  on  trial  is  entitled  to  have  the  theory  of  his 

defence  clearly  reeognized  in  the  charge  of  the  court. 

3.  Drunkenness  —  Temporary  Insanity  —  Injury  to  Brain  —  Instructions.  —  Where 

the  defence  of  temporary  insanity  proceeds  upon  the  theory  that  it  was  induced  by  the 
operation  of  strong  drink  upon  a  mind  rendered  unsound  by  an  injury  to  the  brain,  it  is 
error  to  leave  the  question  of  criminal  responsibility  to  be  determined  upon  the  facts  of 
injury  and  mental  unsoundness  alone,  or  upon  the  effect  of  intoxicating  li(iuors  apart 
from  the  other  facts. 

Exceptions  from  the  Recorder's  Court  of  Detroit. 
Van  Riper,  Attorney-General,  for  the  People. 
Brennan  and  Donnelly,  for  the  prisoner. 

GuAVES,  J.  —  Cuinrains  was  convicted  in  the  Recorder's  Court  of 
Detroit  on  a  charge  of  larceny  from  the  person  and  he  comes  here  for  a 

review  on  exceptions. 

********** 

The  point  seriously  controverted  was  the  defendant's  criminal  ca- 
pacity, and  tlie  ground  was  taken  by  testimony  tending  to  prove  it,  that 
some  years  prior  to  the  act  in  question  the  defendant's  brain  had  suf- 
fered injury,  which  made  him  sul)ject  to  spells  of  strunge  and  ptiinful 
feelings  in  his  head,  and  moreover  rendered  him  liable  on  drinking 
liquor,  which  he  sometimes  did,  to  become  temporarily  insane,  and  that 
having  been  drinking  on  this  occasion,  it  had  produced  this  crazing  ef- 
fect, and  to  such  extent  that  he  was  not  conscious  of  any  thievish  pur- 
pose and  was  not  able  to  form  one.  When  the  court  came  to  deal  with 
this  question  of  criminal  responsibility,  he  instructed  the  jury,  as  the 


GOO 


DRUNKENNESS. 


Piioplo  V.  Cmnmins. 


record  tells  us,  that  if  the  defendant  '-knew  ho  had  been  taking  prop- 
erty that  did  not  belong  to  him,  he  was  sane  enough  to  commit  this  of- 
fence." By  this  instruction  the  defendant's  legal  accountability  was 
made  to  depend  on  his  having  seen  and  understood  that  the  property  he 
took  was  not  his  own  ;  and  certainly  such  is  not  the  law. 

Where  tlio  case  depends  on  the  sanity  of  the  accused  he  cannot  be 
convicted  of  larceny  unless  the  jury  are  satisfied  tliat  his  mind  was  suf- 
ficient to  see  all  the  essential  ingredients  of  tlie  offence,  and  acknowl- 
edge their  exist  jc,  and  the  bare  recognition  of  the  one  fact  tliat  the 
pro[)erty  belonged  to  another,  would  be  only  one  among  several  such 
ingredients.  No  enumeration  of  tiie  required  constituents  is  needful. 
The  text  books  will  supply  the  information. 

The  remaining  consideration  is  more  general.  On  taking  into  view 
what  instructions  were  denied  and  what  were  given  there  is  reason  to 
apprehend  the  jury  were  led  to  suppose  that  the  question  of  criminal  re- 
sponsibility was  to  be  solved  by  looking  at  the  question  of  mental  sound- 
ness and  brain  injury,  and  the  question  of  the  effect  of  liquor  and 
intoxication  as  separate  and  unconnected  factors.  But  it  was  not  the 
theory  of  the  defence  that  either  the  injury  or  mental  infirmity  on  the 
one  hand,  or  the  drinking  and  intoxication  on  the  other,  distinctly  and 
separately  considered,  brouglit  about  the  alleged  incapacity.  The  posi- 
tion of  the  defence  was  that  the  alleged  state  of  insanity  and  inca- 
pacity was  superinduced  through  the  conjoint  but  consequential 
operation  of  the  liquor  and  the  brain  disorder.  And  the  defendant  was 
entitled  to  have  this  theory  clearly  recognized  in  the  charge. 

I  tiiink  the  court  should  be  advised  to  set  aside  the  conviction  and 
order  a  new  trial. 

Campbell,  J.,  concurred. 

CooLEY,  J. —  The  record  in  this  case  is  very  confused,  and  I  am  not  cer- 
tain that  we  understand  the  Recorder's  charge  as  piinted  in  it  as  it  was 
understood  by  the  Recorder  himself  and  the  jury.  But  if,  as  the  record 
seems  to  say,  he  instructed  the  jury  that  the  plaintiff  in  error  could  be 
guiltv  of  larceny  in  taking  the  property  of  another  when  he  was  so  in- 
sant  as  not  to  know  what  he  was  about,  he  was  clearly  in  error.  Lar- 
ceny implies  a  taking  with  felonious  intent;  and  when  that  intent  is 
impossible  the  crime  is  impossible. 

The  other  justices  concurred. 


VOTING   TWICE    AT   FLECTION. 


697 


ytatc  V.  Welch. 


INTOXICATION  — VOTING   TWICE    AT  ELECTION  — INTENT  — DRUNK- 
enness no  excuse. 

State  v.  Welch. 


[21  Minn.  22.] 
In  the  Supreme  Court  of  Minnesota,  August,  1874. 

Hon.  S.  J.  R.  McMillan,  Chief  Justice. 
"    John  M.  Bekiiy,       ) 

"      GEOKGE   B.  YULNG.J'^"'^^"*- 

Votingr  Twice  at  Elect  "on—  Intent  —  Intoxication  no  Defence.  —  It  is  no  defence  to 

an  indictment  for  illegally  voting  more  tlian  once  at  the  t^ame  election  tliat  tlie  prisoner 
was  so  drunk  when  he  gave  his  second  vote  that  he  did  not  know  what  ho  was  doing 
and  did  not  know  that  he  liad  already  voted. 

The  prisoner  was  convicted  in  tlie  District  Court  of  Washington 
County,  and  sentenced  to  liard  labor  in  the  State  prison  for  six  months. 
He  appealed. 

James  N.  Castle,  for  appellant. 

George  P.  Wilson,  Attorney-General,  ^'or  the  State. 

Young,  J.  — The  indictment  chai-j^es  the  defendant  with  the  crime  of 
voting  more  than  once  at  the  genera)  municipal  election  of  the  city  of 
Stillwater,  hold  April  1,  1873  —  the  defendant's  first  vote  being  cast  in 
the  First  Ward  of  which  he  was  a  resident,  and  the  second  in  the  second 
Ward. 

■«:*  *********** 

At  the  trial  the  prisoner  testified :  "I  drank  considerably  during  the 
day  of  the  election.  I  don't  recollect  voting  at  any  of  the  polls  that 
day.  I  might  have  voted  three  times  and  not  known  it.  I  must  have 
been  very  drunk.  Don't  recollect  what  occurred  after  morning." 
Other  evidence  was  introduced,  tending  to  show  that  the  defendant  was 
much  intoxicated  at  the  time  of  the  second  voting.  Evidence  was 
offered,  and  excluded  as  immaterial,  tending  to  show  that  defendant 
was  a  lumberman,  and  on  the  election  day  had  just  returned  from  a  six 
months'  absence  in  the  woods ;  that  he  did  not  know  that  more  than 
one  polling  place  had  been  provided ;  that  he  did  not  know  who  were 
the  candidates  to  be  voted  for,  was  not  a  partisan,  and  took  no  part  in 
the  election,  except  by  voting.  The  exceptions  taken  to  the  exclusion 
of  this  evidence,  and  to  the  refusal  of  the  court  to  give  the  third,  sixth, 
and  seventh  instructions  asked  by  the  defendant,  present  the   same 


fiOS 


DRUNKENNESS. 


State  V.  Wclcli. 


question  under  two  aspects.  The  defendant's  intoxication  is  relied  on 
as  a  defence,  first,  as  rendering  the  defendant  incapjible  of  foiining  the 
intent  to  commit  a  crime ;  second,  as  rendering  him  ignorant  of  the  fact 
that  lie  was  doing  the  act  for  which  he  is  indicted. 

His  counsel  insists  that  "  the  essence  of  an  offence  is  the  wrongful 
intent,  without  which  crime  cannot  exist."  This  is  true;  but  in  cases 
lilvc  the  present,  where  the  law  declares  the  act  done  by  the  defendant 
to  be  a  crime,  the  only  question  is,  did  the  defendant  intend  to  do  the 
act  which  tiie  law  has  forbidden?  He  does  not  ai)pear  to  have  cast  his 
vote  by  accident,  or  under  the  constraint  of  sui)erior  force.  His  act 
was  and  must  have  been  wholly  voluntary.  Eveiy  man  is  conclusively 
presumed  to  intend  his  own  voluntary  acts.  As  the  defendant  must 
have  intended  to  cast  the  second  ballot,  he  must  have  intended  to  com- 
mit the  offence  charged. 

The  cases  cited  by  his  counsel,  except  one  in  California,  arc  cases 
where  the  crime  of  which  the  prisoner  was  accused,  consisted  not  merely 
in  the  doing  of  an  act,  with  intent  simply  to  do  that  act,  but  in  the  doing 
of  an  act,  with  intent  thereby  and  by  means  thereof  to  compass  a  crim- 
inal end,  to  accomplish  an  unlawful  purpose.  Thus,  in  prosecutions  for 
larceny,  the  act  of  the  prisoner  —  the  mere  taking  —  does  not  constitute 
the  offence,  but  the  act  coupled  with  the  Intent  to  steal ;  and  the  ques- 
tion is  not,  did  the  prisoner  take  and  intend  to  take  the  goods?  But, 
did  he  take  them  animo  furnndi?  So,  in  trials  for  murder  in  the  first 
degree,  the  question  is  not  merely  did  the  prisoner  intend  to  inflict  the 
blow  (or  do  any  other  act),  which  resulted  in  death  ?  But,  had  he  a  pre- 
meditated design  to  effect  the  death  by  means  of  the  act  done?  And 
in  St((tev.  Garcey,^  the  question  was  not,  did  the  prisoner  intend  to  make 
the  assault?  but,  did  he  also  intend  to  do  great  bodily  harm?  In  such 
cases,  where  the  crime  consists  not  alone  in  the  act  done,  and  intended 
to  be  done,  but  also  in  the  intent  of  the  prisoner  to  effect  certain  re- 
sults by  means  of  the  act,  courts  have  sometimes  admitted  evidence  of 
the  prisoner's  intoxication,  as  affecting  his  mental  condition  and  the 
possibility  or  probability  of  his  forming  a  i)remeditated  design,  or  even 
an  intention,  to  perpetrate,  by  means  of  the  act  done,  the  crime  where- 
with he  is  charged. 2  So,  in  another  class  of  cases  —  for  instance,  prose- 
cutions for  i)assing  counterfeit  money  —  wliere  the  prisoner's  knowledge 
of  its  falsity  is  the  essence  of  ll.e  offence,  he  has  been  permitted  to 


'  11  Minn.  154. 

2  Swan  V.  state,  4  Humph.  136 ;  PirUe  »• 
State,  9  Humph.  60,!;  State  v.  Schingeii,  20 
Wis.  74;  State  f.  Bell,  29  Iowa,  316;  Roberts 


r.  Peoplo,19Mich.  417,  where  many  cases  arc 
collected.  And  see  State  v,  (Jut,  13  Minn. 
361. 


VOTINU    TWICE   AT    ELECTION. 


(lt»U 


Dniiikuuia'.ss  no  l/cfiiicc 


show  that,  when  he  uttered  the  money,  he  was  so  drunk  as  not  to  know 
that  it  was  counterfeit.^ 

But  it  is  obvious  that  sucli  cases  have  no  analogy  to  the  case  at  bar. 
This  defendant's  motive  and  purpose  in  voting  are  alike  immaterial. 
His  offence  is  tlie  same,  although  his  two  votes  were  cast  for  oppositig 
candidates,  so  that  the  second  neutralized  the  first.  Here,  the  only 
question  is,  did  the  defendant,  having  voted  in  the  First  Ward,  intend  to 
vote  a  second  time  at  the  same  election?  In  no  case  can  a  defendant, 
|jy  proof  of  intoxication,  rebut  the  legal  presumption  that  he  knows 
and  intends  his  voluntary  acts.  In  the  instances  above  cited,  the  pris- 
oner cannot  show  that,  by  reason  of  intoxication,  he  did  not  intend  to 
take  tlie  goods  he  is  charged  with  stealing ;  to  strike  the  blow  which  re- 
sulted in  death ;  to  pass  the  money  which  proved  to  be  counterfeit ;  nor 
can  he  show  that,  l)y  reason  of  his  intoxication,  he  did  not  know  that 
he  took  the  goods,  struck  the  blow,  or  passed  the  money. 

It  is  claimed  that  the  defendant  was  so  drunk  when  he  voted  the  sec- 
ond time  that  he  did  not  remember  that  he  had  already  voted,  and  that 
the  act  was  innocent,  because  done  in  ignorance  of  this  material  fact. 
But  this  plea  of  want  of  mem(n'y  is  like  tlujse  of  want  of  intent  and 
want  of  knowledge.  The  defendant  had  first  cast  his  vote  l)ut  a  few 
hours  before.  In  the  ordinary  course  of  tilings,  had  he  remained  soIxt, 
it  would  be  no  excuse  for  his  offence,  that  ho  had  forgotten,  at  three 
o'clock  in  the  afternoon,  that  he  had  voted  in  the  morning.  It  is  not 
})retended  that  he  i^  not  a  man  of  ordinary  memory,  and  he  must  be 
hold  to  the  reasonable  exercise  of  the  power  of  mcmoiy  that  he  possesses. 
A  man  is  not  the  less  responsible  for  the  reasoiuible  exorcise  of 
his  understanding,  memory  and  will,  because  he  has  enfeebled  his  mem- 
ory, perverted  his  will,  and  clouded  his  understanding,  by  voluntary  in- 
dulgence in  strong  drink.  A  drunken  man,  equally  with  a  sober  man, 
is  presumed  to  know  and  intend  tlie  acts  which  he  does,  and  to  remcm- 
I'cr  the  acts  wliicli  ho- lias  done.  There  is^  ncf'or.ling'.y,  no  reason  why 
this  case  should  form  an  exception  to  the  general  rule  of  the  criminal 
law,  that  "  an  intoxicated  man  shall  have  no  privilege  by  his  voiuntarv 
contracted  madness,  but  shall  have  the  same  judgment  as  if  he  were  in 
his  right  senses."  '^ 

In  People  v.  Hdrris,^  cited  by  the  defendant's  co'insel,  the  prisoner 
was  indicted,  under  a  statute  similar  to  our  own,  for  the  offence  of 
which  this  defendant  stands  convicted.     It  was  held  that  evidence  of 


'  Pigman  V.  State,  14  Ohio,  555. 

=  Hale  P.  C.  :i2;  1  IJisli.  Or.  Law,  sect.  489, 


and  cases  cited ;  People  v.  Garbutt,  17  Mich. 
9. 

3  29  Cal.  678. 


700 


DUUNKENNESIS. 


State  r.  Wflcli. 


his  intoxication  could  b(^  admitted  upon  tiie  question  of  his  intent  to 
commit  a  crime,  ami  wlieliicr  a  crime  liad  in  fact  been  committed  ;  but 
tlie  opinion  was  strongly  expresseil,  and  often  reiterated,  that  "  a  state 
of  intoxicatiijn  can  be  of  no  avail  as  an  excuse  for  crime."  It  seems  to 
us  that  a  prisoner  would  have  no  need  for  an  excuse  for  an  act  which 
his  intoxication  made  innocent,  and  no  crime.  There  can  be  no  practi- 
cal difference  in  the  result  between  holding  that  intoxication  is  an  excuse 
for  crime,  and  holding  that  the  acts  of  a  man  sudiciently  intoxicated 
cannot  be  criminal.  In  either  case,  a  man  would  be  exempted  from 
criminal  responsil)ility  f<jr  acts  done  in  a  state  of  voluntary  intoxication. 
This  doctrine  is  novel,  anomalous  and  startlini?.  It  is  a  dangerous  in- 
novation upon  the  well  established  principles  of  the  criminal  law,  and 
we  have  no  hesitation  in  rejecting  it. 

The  tenth  charge  of  the  court  is  taken  from  1  Bishop  Cr.  Law.'  The 
same  doctrine,  as  stated  in  almost  the  same  words  in  the  following  sec- 
tion, was  admitted  to  be  the  law  in  Roberts  v.  Pcojile.-  The  correctness 
of  the  author's  theory  of  the  rule,  by  whicli  drunken  men  are  held  to 
intend  their  criminal  acts,  is  immaterial.  The  rule  itself  is  correctly 
state  il. 

There  was  no  practical  error  in  the  eleventh  instruction,  viz. :  "  The  de- 
fendant is  ecpially  guilty  whether  he  intended  the  act  ct)mplained  of  or 
not.  The  only^ixcf  for  the  jury  to  find  in  this  case  is,  whether  or  not 
the  defendant  deposited  a  ballot  both  at  the  First  and  Second  Wards  of 
this  city,  on  the  occasion  of  the  city  election,  held  April  1,  1873.  And 
if  you  find  tluit  he  did  so  deposit  the  two  ballots,  j-ou  will  find  him 
guilty,  in  manner  and  form  as  charged  in  the  indictment." 

The  language  of  this  instruction  is  not  happily  chosen,  and  cases 
might  easily  be  supposed  where  such  a  charge  would  unduly  restrict  the 
province  of  the  jury,  and  mislead  them  into  an  erroneous  verdict.  But, 
as  we  have  already  shown,  the  present  case  falls  within  the  general  rule, 
that  men  are  presumed  to  intend  their  voluntary  acts ;  and  it  was  the 
duty  of  the  jury,  upon  satisfactory  proof  of  the  acts  done,  to  find  the 
intent  in  accordance  with  the  legal  presumption.  The  instruction,  in  its 
application  to  the  facts  of  this  case,  was  therefore  substantially  correct. 

The  judgment  and  the  orders  appealed  from  are  affirmed,  and  it  is  di- 
rected that  the  sentence  pronounced  by  the  District  Court  be  executed. 


I  Sect.  488. 


19  Mich.  417. 


voTiNO  twk;k  at  klectios. 


701 


Pcoiilc  r.  Hiirrls, 


3  intent  to 
ilted ;  but 
;  "  a  state 
t  seems  to 
act  w  liicL 
no  practi- 
an  excuse 
itoxicated 
)ted  from 
3xication. 
Reruns  in- 
law, ami 


w.' 


TlK 


iVing  eec- 
•rrcctness 
•e  held  to 
correctly 

'The  de- 
led of  or 
er  or  not 
tVards  of 
'3.  And 
find  him 

id  cases 
strict  the 
.'t.  But, 
sral  rule, 
was  the 
find  the 
3n,  in  its 
correct, 
it  is  di- 
cecuted. 


VOTING  TWICE  AT  ELECTION  — INTENT  — DKUNKENNESS  RELEVANT. 

Peoplh  r.  IIaukis. 

[2i)  Cal.  fl7H.] 

In  tibe  Suprcvie  Court  of  California,  April,  1866. 

Hon.  Silas  W.  Sanhkuson,  dhicf  Justice. 
"     John  Ciuuky,  ^ 

<<      LOUKN'/.O  SAWYint,  I 

«'     At(iisTrs  L.  HiioDKs, 

'<       OSCAIJ    L.   SHAI'II':!!, 


1-  Assistant  Justices. 


Voting  Twice  at  Election -Intent- Drunkenness. -Tlio  ;u;t  of  voting  more  than 
once  at  the  same  election  is  m.t  ii  criuio  unless  ilone  knowingly  iind  with  wrong 
intent.  Thereforo  a  person  charged  with  this  crime  may  show  that  he  was  intoxicated 
at  the  time  ho  committed  the  act,  not  as  an  excuse  for  the  crime,  but  to  enable  the  jury 
to  determine  whether  his  mtuital  condition  was  such  that  he  knew  ho  was  committing 
an  otfcncc. 

Appeal  from  the  County  Court,  City  and  County  of  San  Francisco. 

The  facts  arc  stated  in  the  opinion  of  the  Court. 

Alexander  Campbell,  for  appellant. 

J.  O.  McCulloiKjh,  Attorney-General,  for  the  People. 

By  the  court,  Cuuuky,  C.  J.  —The  defendant  was  indicted  for  voting 
twice  at  the  general  election  held  on  the  6th  of  ScptcMuber,  lK6r>.  To 
the  indictment  he  pleaded  not  guilty.  V\)on  the  trial  he  was  found 
"•uilty,  and  sentenced  to  be  imprisoned  in  the  State  prison  for  one  year. 

It  is  provided  by  statute  that  any  person  who  shall  vote  more  thtm 
once  at  any  election  shall  be  deemed  guilty  of  a  felony,  and,  upon 
conviction,  shall  be  imprisoned  in  the  State  prison  for  a  term  not  less 
than  one  year  nor  more  than  five  years. ' 

Tlie  evidence  shows  that  the  defendant  voted  at  the  election  i)olls 
of  the  Fifth  District  of  San  Francisco  at  about  ten  o'clock  in  the  fore- 
noon of  the  day  above  mentioned,  when  his  right  to  vote  was  challenged 
on  the  ground  that  he  was  not  a  resident  of  the  district.  The  challenge 
being  withdrawn,  the  defendant  voted.  About  two  or  three  o'clock  in 
the  afternoon  the  defendant  returned  to  the  same  polls  very  muili 
intoxicated  and  again  offered  to  vote.  The  s  >  person  who  had  chal- 
lenged his  right  to  vote  at  that  place  in  the  m(.  -uiig  informed  hiin  that 
he  had  voted  before,  and  that  he  would  get  himself  in  troul)le  if  he 


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I'foplc  r.  Harris. 


voted  again.  The  defendant,  in  reply,  vehemently  protested  that  he 
had  not  voted,  and  declared  his  willingness  to  so  make  oath.  The  oath 
prescribed  by  the  statute  was  tlien  administered  to  him  by  the  proper 
officer,  to  wliich  ho  responded  in  the  affirmative,  and  then  voted  the 
second  time. 

When  the  cause  was  submitted  to  the  Jury,  the  court  charged  them 
as  follows :  "  The  indictment  charges  that  the  defendant,  at  an  election 
for  members  for  the  State  Senate  and  Assembly,  held  on  the  sixth  day 
of  September,  1865,  in  the  Fifth  Election  District  of  this  city  and 
county,  did,  knowingly,  unlawfully  and  feloniously,  vote  more  than  once 
at  the  same  election.  The  language  of  the  statute  upon  which  the 
indi.^tmcnt  is  framed  is,  '  any  person  who  shall  vote  more  than  once  at 
."I  »'  c  oction  *  *  *  shall  be  deemed  guilty  of  a  felony.'  The  word 
knov  ■'  hj  Is  not  in  tiie  statute,  and  although  used  in  the  indictment, 
yet  it  may  be  rejected  as  surplusage,  for  the  State  is  not  bound  to 
suppi*'  by  proof  the  allegation  in  the  indictment,  that  the  act  of  double 
votiiig  wad  knowingly  done.  The  statute  makes  the  act  of  voting  more 
than  onoo  at  the  same  election,  and  not  the  act  of  voting  knowingly 
more  than  once  at  any  election,  a  crime.  If,  therefore,  you  are  satis- 
fled  from  the  testimony  in  the  case  that  the  defendant,  at  an  election 
for  members  of  the  State  Senate  and  Assembly,  held  on  the  sixth  day 
.  f  September,  18G5,  in  the  Fifth  Election  District  in  this  city  and 
county,  voted  twice,  then,  althougii  the  defendant  may  at  the  time 
have  been  under  the  inttuence  of  intoxicating  liquors,  it  is  your  duty 
to  bring  in  a  verdict  of  guilty  against  him ;  for  drunkenness  is  no 
excuse  or  justification  for  the  commission  of  a  criminal  act,  Jind  evi- 
dence of  voluntary  intoxication  is  properly  admissible  as  affecting 
crime  only  in  those  cases  in  which  it  is  necessary  to  ascertain  whether 
the  accused  was  in  a  mental  condition  which  enabled  him  to  form  a 
deliberately  premeditated  piu'pose,  and  this  is  not  one  of  those  cases. 
The  counsel  for  the  defendant  requests  me  to  charge  you  that  every 
crime  involves  a  union  of  act  and  intent  or  criminal  negligence.  This 
is  true.  Tlie  law  does  not  punish  a  man  for  his  intention,  nor  for  his 
act  disconnected  from  his  intention,  but  act  and  intent  must  unite  to 
constitute  a  crime." 

At  the  conclusion  of  the  charge  the  counsel  for  the  defendant  requested 
the  court  to  witlidraw  that  portion  of  it  which  stated  that  the  act  of 
double  voting  need  not  be  knowingly  done,  which  the  court  declined 
to  do. 

The  defendant's  counsel  excepted  to  each  and  every  portion  of  the 
charge  except  that  given  at  the  request  of  the  defendant's  counsel,  and 


COXSTITUEXTS   OK    CRIME 


7();{ 


Act  uiul  Intent  inn  ;,  I'nite. 


2d  that  he 

The  oath 

the  proper 

voted  the 

rged  them 

in  election 

sixth  day 

city  and 
than  once 
tvhich  the 
in  once  at 
The  word 
dictment, 
bound  to 
of  double 
;ing  more 
nowingly 
ire  satis- 

election 
Jixth  day 
city  and 
tlie  time 
our  duty 
ss  is  no 
and  evi- 
affec'ting 
whether 
)  form  a 
ie  cases, 
at  every 
J.     This 

for  his 
unite  to 

quested 
}  act  of 
Icclined 


also  excepted  to  the  refusal  of  the  court  to  withdraw  the  portion  of  the 
charge  which  stated  that  the  actt  of  double  voting  need  not  be  know- 
ingly done. 

The  defendant's  counsel  asks  for  a  reversal  of  the  judgment,  on  the 
ground  that  the  jury  were  misdirected  by  the  court  in  relation  to  the 
knowledge  which  it  was  necessary  the  defendant  should  have  as  to  what 
he  had  done  and  was  d  >ing  when  he  voted  the  second  time,  and  he 
insists  that  the  error  of  the  charge  was  not  cured  l)y  the  instructions 
given  at  the  defendant's  request,  "that  every  crime  involves  a  union 
of  act  and  intent  or  criminal  negligence." 

The  theory  upon  which  it  was  souglit  to  exculpate  the  defendant 
of  criminality  was,  that  he  was  in  such  a  condition  meiittilly  when  he 
voted  the  second  time  as  not  to  know  that  he  had  already  voted,  but, 
on  the  contrary,  believed  that  he  iiad  not  done  so.  It  is  laid  down  in 
the  books  on  the  subject  that  it  is  a  universal  doctrine  that  to  consti- 
tute what  the  law  deems  a  crime,  there  must  concur  both  an  evil  act 
and  an  evil  intent.  Actus  nonfacit  reum  nisi  mens  sit  nK.^  Therefore 
the  intent  with  which  tlie  unlawful  act  was  done  must  be  proved  as  well 
as  the  other  material  facts  stated  in  tiie  indictment ;  which  may  be  by 
evidence  either  direct  or  indirect  tending  to  establish  the  fact,  or  by 
inference  of  law  from  other  facts  proved.  V'iien  the  act  is  proved  to 
have  been  done  by  the  accused,  if  it  be  an  act  in  itself  unlawful,  the 
law  in  the  first  instance  presumes  it  to  have  been  intended,  and  the 
proof  of  justification  or  excuse  lies  on  the  defendant  to  overcome  this 
legal  and  natural  presumption. ^  Now,  when  the  statute  declares  the 
act  of  voting  more  than  once  at  the  same  election  by  the  same  person 
to  be  a  felony,  it  must  be  understood  as  implying  that  the  interdicted 
act  must  be  done  with  a  criminal  intention,  or  under  circumstances 
from  which  such  intention  may  be  inferred.  The  defendant's  counsel 
at  the  trial  seems  to  have  apprehended  the  true  rule  of  law  on  the  sub- 
ject, and  to  have  regarded  the  burden  as  on  the  defendant  to  show  by 
evidence  that  the  act  of  his  voting  the  second  time  was  not  criminal, 
and  for  this  purpose  evidence  of  his  intoxicated  and  excited  condition 
was  submitted  to  the  jury,  in  order  that  they  might  determine  under 
the  rules  of  law  governing  in  such  eases  whether  the  defendant  was 
conscious  at  the  time  of  having  voted  before  at  the  same  election. 
The  question  was  fairly  before  the  jury  whether  the  defendant  knew 
what  he  was  about  when  he  voted  the  second  time.     From  the  evidence 


I  of  the 
iel,  and 


'  1  Bish.  Cr.Law,  BcctB.  t2",  229;  3  Grcenl. 

Ev.,HiT.t.i3. 


-  3  CJreenl.  on  Ev.,  seels.  13, 14, 18. 


704 


DRUNKENNESS. 


People  V.  Harris. 


in  the  case  it  appears  lie  was  very  ranch  intoxicated,  but  whether  to  a 
degree  sufficient  to  deprive  him  of  all  knowledge  of  having  already 
voted  was  for  the  jury  to  decide. 

Tlie  law  does  not  excuse  a  person  of  a  crime  committed  while  in  a 
state  of  voluntary  intoxication.  In  Hex  v.  Thomas,^  Pauke,  B.,  said 
to  the  jurj':  "  I  must  toll  you  that  if  a  man  makes  himself  voluntarily 
drunk,  it  is  no  excuse  for  any  crime  he  may  commit  whilst  he  is  so  ;  he 
takes  the  consequences  of  his  own  voluntary  act,  or  most  crimes  would 
go  unpunished  ;  "  and  to  the  same  effect  is  the  language  of  Aldeijson, 
B.,  in  Hex  v.  Meakiu;  ^  aii<l  in  harmony  with  this  doctrine  is  the  whole 
current  of  English  authority.-*  Mr.  Wharton  says  that  in  this  country 
the  same  position  has  been  taken  with  marked  uniformity,  it  being 
invariably  held  that  voluntary  drunkenness  is  no  defence  to  the  factuvi 
of  guilt;  the  only  point  about  Avhich  there  has  been  any  fluctuation 
being  the  extent  to  which  evidence  of  drunkenness  is  receivable  to 
determine  the  exactness  of  the  intent  or  extent  of  deliberation.'"*  In 
PUjman  v.  State,^  it  was  held  that  a  man  who  passes  counterfeit  money 
is  not  criminally  liable  if  he  is  so  drunk  as  to  be  incapable  of  knowing 
that  it  is  counterfeit,  and  consequently  of  entertaining  the  intention  to 
defraud,  provided  there  was  no  ground  to  suppose  ho  knew  the  money 
to  be  counterfeit  before  then ;  and  in  Sican  v.  State,'*  the  Supreme  Court 
of  Tennessee  said:  "Although  drunkeiuiess,  in  pointof  law,  constitutes 
no  excuse  or  justification  for  crime,  still,  when  the  nature  and  essence 
of  a  crime  is  made  by  law  to  depend  upon  the  peculiar  state  and  con- 
dition of  the  criminal's  mind  at  the  time,  and  with  reference  to  the  act 
done,  drunkenness  as  a  matter  of  fact  affecting  such  state  and  condition 
of  the  mind  is  a  proper  subject  for  consideration  and  inquiry  by  the 
jury.     The  question  in  such  case  is  what  is  the  mental  status?*' 

In  Reg.  v.  Moore,''  the  defendant  was  indicted  for  an  attempt  to 
commit  suicide  by  drowning,  and  in  defence  it  was  alleged  she  was 
unconscious  from  drunkenness  at  the  time  of  the  nature  of  the  act. 
The  court  was  of  tlie  opinion  that  if  she  was  so  drunk  as  not  to  know 
what  she  was  about,  the  jury  could  not  find  that  she  intended  to 
destroy  herself.^ 

While  the  condition  of  the  accused,  caused  by  drunkenness,  may  be 
taken  into  consideration  by  the  jury  with  the  other  facts  of  the  case,  to 


'  7  0.  4  p.  817. 

«  7  C.  A  p.  297. 

»  1  Whart.  Cr.  Law,  sect.  39. 

*  Id.,  sect.  40. 

5  14  Oh io,  55.5. 

«  4  IIunii)li.  l::o,  Ml. 


7  3  C.  A  K  319. 

»  Reg.  V.  Cruise,  8  0.  &  P.  S46;  United 
States  f.  Uondenbush,  1  Haldw.  517;  Kelly 
V.  State,  3  Sni.  &  M.518;  Piitle  r.  State,  9 
Humph.  UC:i;  Ilailc  v.  state,  11  Humph.  154. 


DRUXKEXNESi.S. 


705 


Not  an  JCxciiso  for  Crliiio. 


enable  them  to  (leeidi!  in  respect  to  the  question  of  intent,  it  is  proper 
to  observe  that  drnniienness  will  not  excuse  crime'  Tiie  in(iuiry  lo  be 
made  is  whetiior  tlie  crime  wliich  the  defendant  is  accused  of  having 
committed  /las  in  point  of  f<,rt  been  committed,  and  for  this  purpose 
whatever  will  fairly  and  legitimately  lead  to  the  discovery  of  the  mental 
condition  and  status  of  the  accused  at  the  time  may  be  given  in  evidence 
to  the  jurjs  and  may  be  considered  by  them  in  determining  whether 
the  defendant  was  in  fact  guilty  of  the  crime  charged  against  him. 
Great  caution  is  necessary  in  the  application  of  this  doctrine,  and  those 
whose  province  it  is  to  decide  in  such  cases  should  be  satisfied  beyond 
a  reasonable  doubt,  from  all  the  facts  and  circumstances  before  them, 
that  the  unlawful  act  was  committed  by  the  accused  when  his  mental 
condition  was  such  that  he  did  not  know  that  ho  was  committing  a 
crima,  and  also  that  no  design  existed  on  his  part  to  do  the  wrong 
before  be  became  tinis  incapable  of  knowing  what  he  was  doing. 

We  have  said  more  respecting  the  character  of  the  defence  or  excuse 
imposed  than  would  have  been  necessary,  but  for  the  reason  that  it 
is  important  that  those  who  may  be  guilty  of  violating  the  law  may 
understand  that  a  state  of  intoxication  can  be  of  no  avail  as  an  excuse 
for  crime. 

The  court  told  the  jury,  as  we  have  seen,  that  the  statute  makes  the 
act  of  voting  more  than  once  at  the  same  election,  and  not  the  act 
of  voting  knowingly  — that  is,  intentionally  — more  than  once  at  any 
one  election,  a  crime.  The  court  further  charged  the  jury,  in  sub- 
stance, that  evidence  of  voluntary  intoxication  is  properly  admissible 
as  affecting  crime  only  in  those  cases  in  which  it  is  necessary  to  ascer- 
tain whether  the  accused  was  in  a  mental  condition  whiih  enabled  him 
to  form  a  deliberato  premeditated  pur[)()se  to  commit  the  offence  ;  but 
in  the  same  connection  the  jury  were  told  in  effect  tliat  the  case  before 
them  was  not  one  of  those  cases  in  which  the  defendant  could  interpose 
the  defence  that  he  was  intoxicated  to  a  degree  rendering  him  uncon- 
scious of  what  he  had  done  and  of  the  wrong  wliich  he  was  doing. 
The  court  then  instructed  the  jury,  at  the  request  of  the  defendant's 
counsel,  that  every  crime  involves  a  union  of  act  and  intent  or  criminal 
negligence.  That  the  law  does  not  punish  a  man  for  his  intention,  but 
that  act  and  intent  must  unite  to  constitute  a  crime  ;  but  at  the  same 
time  the  court  refused  to  modify  in  any  degree  the  charge  already 
given,  though  specially  requested  so  to  do. 


46 


1  People  V.  King,  27  Cal.  614. 


700 


DKUXKKNNESS. 


lu'lly  and  Little  v.  Slate 


Taking  thcso  two  portions  of  the  charge  togetlicr  wc  may  understand 
the  court  as  dcchuing:  — 

First.  Tliat  a  crime  la  constituted  by  the  commission  of  a  forbidden 
act,  united  with  a  felonious  intent  on  tlio  part' of  liim  who  does  the  act 
or  caused  it  to  be  done. 

Second.  That  tlie  act  of  voting  more  than  once  at  tlie  same  election 
was  a  crime,  even  tliough  not  done  with  knowl'.'dge,  on  tlie  part  of  him 
who  so  votes,  that  he  was  voting  the  second  time. 

Third.  That  the  case  befuiO  the  jury  was  not  one  in  which  the 
defendant  coidd  sliow  that  by  reason  of  his  Intoxicated  condition  he 
did  not  know  what  he  was  doing  when  he  voted  tlie  scond  time. 

We  do  not  see  how  these  charges,  involving  the  Oiuestion  of  felonious 
knowledge  or  intention  can  be  harmonized.  The  second  and  third  stand 
in  direct  antagonism  to  the  first,  and  the  greater  prominence  was  given 
to  the  one  of  which  the  defendant  complains,  and  which  wc  think  to  be 
erroneous.  We  are  of  tlie  opinion  t'  •,  court  erred 'also  in  excluding 
from  the  jury  any  consideration  of  t  .  mental  stahis  of  tlie  defendant 
by  reason  of  his  intoxicated  condition  when  he  voted  the  second  time. 
The  judgment  is  reversed  and  a  new  trial  ordered. 

Mr.  Justice  Sa  vyer  expressed  no  opinion. 


INTOXICATION  — RELEVANT  ON  QUESTION  OF  INTENT  AND  MALICE. 

Kelly  and  Little  v.  State. 

[:i  S.  &  M.  618] 

In  the  High   Court  of  Errors  and  Appeals  of  Mississippi,  November 

Term,  1844. 

Hon.  William  L.  Sharkey,  Chief  Justice. 
"     Alkxaxdkk  Ci.avton,  ) 
'«     J.  S.  B.  TiiACiiEU,        \J'^^Oes. 

Mere  intoxication  Is  no  extennation  or  excuse  for  crime ;  but  it  may  ba  considered  by  the 
jury  upou  the  questiou  of  iuleiit  or  lualice. 

In  ekuor  from  the  Circuit  Court  of  Smith  County. 
At  the  April  term,  1844,  of  the   said   court,   Archibald  Kelly  and 
Archibald  Little  were  indicted  jointly  for  the  murder  of  one  Jack,  a 


INTOXICATION    NO    EXCUSE    FOU    CRIME. 


f()7 


Aflly  and  I.lltlo  v.  State. 


ndcrstund 

forbidden 
>es  ilie  act 

e  election 
Lit  of  him 

vhich  the 
Million  he 
ne. 

felonious 
lird  stand 
Has  given 
link  to  be 
3xc'luding 
lefendant 
)nd  time. 
rdered. 


MALICE. 


Vovember 


ered  by  the 


elly   and 
Jack,  a  1 


negro  man,  the  slave  of  the  said  Arcliihald  Kelly.  On  the  IGth  of 
April,  1H.|4,  th)  prisoners  were  aniti<,Mied  and  pleaded  "  not  gnilty," 
and  on  the  20lh  of  April  wore  convicted  by  tlie  finding  of  the  jury  of 
nianshuighter  in  the  first  de^Mee,  and  were  sentenced  to  confinement  to 
the  penitentiary  fur  seven  yciirs. 

Foote  and  Swan,  for  the  prisoners. 

Mr.  Justice  Tiiaciikk  delivered  the  opinion  of  the  court. 

(After  passing  on  other  questions  raised  on  the  appeal.) 

The  court  below  declined  to  ehaige  the  jury  as  follows:  "  In  deter- 
mining whether  the  act  of  killing  was  or  was  not  murder,  if  the  jury  find, 
from  the  evidence,  that  the  defendants  were  in  a  state  of  serious  intoxica- 
tion, they  are  entitled  to  regard  this  fact  as  elucidatory  of  tlio  point  of 
intention,  as  evidence,  more  or  less  strong,  according  to  tluirvlew  of 
the  real  circumstances  of  the  case,  as  proof  of  the  absence  of  that, 
premeditated  design,  required  by  our  statute  in  its  first  description  of 
murder,  as  an  indispensable  ingredient  of  murder." 

As,  in  this  case,  the  finding  of  the  jury  was  manslaughter,  no  injury 
accrued  to  the  prisoners  from  the  denial  of  the  charge  by  the  cou't.  It 
is  true  that  our  statute'  has  enacted  that  no  person  can  l>e  punished  for 
an  offence  committed  in  a  state  of  insanity;  but,  in  doing  so,  it  has 
done  no  more,  as  all  writers  on  criminal  law  show,  than  to  re-enact  the 
coinraon  law.  it  is  to  be  noticed  that  the  instruction  under  review  has 
reference  only  to  a  single  instance  of  intoxication,  and  has  no  reference 
to  well-defined  and  unmistakable  insanity,  produced  by  along-continued 
or  excessive  use  of  intoxicating  stimulants.  Legal  writers,  from  the 
earliest  times  to  the  present,  agree  that  mere  drunkenness  is  no  extenu- 
ation or  excuse  for  crime  in  the  view  of  the  law.  "He  who  is  guilty 
of  any  crime  whatever,  through  drunkenness,  shall  be  punished  for  it 
as  much  as  if  he  had  been  sober."  2  i^j^  drunkard,"  says  Lord 
Coke,  "is  voluntarius  dvemon,  and  hath  no  privilege  there'ny."  Judge 
Stouy,  commenting  on  the  same  sulgeet  says:  "  If  persons  wilfully  de- 
prive themselves  of  reason,  they  ought  not  to  be  excused  one  crime  by 
the  voliuitary  perpetration  of  another." 

In  this  connection  it  is  insisted  by  counsel  that,  as  our  statute  in  one 
of  its  definitions  of  murder,  declares  that  it  must  be  perpetrated  from 
"  a  premeditated  design  to  effect  the  death  of  the  person  killed,  or  some 
other  person,"  and  as  intoxication  "steals  away  the  brain,"  such  is 
a  circumstance  to  infer  the  want  or  absence  of  a  premeditated  design 
to  commit  a  felonious  act.     The  fact  of  the  party  being  intoxicated  has, 


'  II.  &  II.  722,  imragraph  2. 


1  Hawk.  P.  C. 


708 


DKLNKENXESS. 


Won/,  V.  Sttite. 


indeed,  been  hoklen  to  be  a  circumstance  proper  to  be  taken  into  con- 
sideration where  the  sole  (iiieation  is,  wiietber  an  act  was  premeditated 
or  done  with  only  sudden  heat  and  impulse.  The  same  may  as  truly  be 
naid  of  the  passion  of  anger,  or  any  other  excitement  arising  from  sud- 
den i)rovocation  or  peculiar  circumstances.  But  how  slight  that  con- 
sideration should  be  in  the  instance  of  intoxication,  is  readily  conceived 
from  the  as  equally  just  presumption  that  the  design  to  commit  a  crime 
may  have  previously  existi'd  or  been  contemplated,  and  the  intoxication 
have  been  employed  "  to  screw  the  courage  to  the  sticking-place."  Hence 
it  is  that  the  law  discriminates  between  the  delusion  of  intoxication  and 
the  insanity  which  it  may  ultimately  produce.  For,  if  the  mere  fit  of 
drunkenness  is  always  to  be  held  as  an  excuse  for  crime,  there  is  at  once 
established  a  complete  emancipation  from  criminal  justice.  And,  gen- 
erally, to  sustain  a  defence  on  the  ground  of  insanity,  a  comparison  of 
the  best  authorities  concludes  that  it  must  be  clearly  proved  that,  at  the 
time  of  committing  the  act,  the  party  accused  was  laboring  under  such 
a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature 
and  quality  of  the  act  he  was  doing,  or,  if  he  did  understand  them,  that 
he  did  not  know  he  was  doing  what  was  wrong. 

Judgment  reversed  on  another  ground. 


INTOXICATION  —  INTENT  —  LARCENY. 

Wenz  V.  State. 

In  the  Court  of  Appeals  of  Texas,  1876. 

[I  Tex.  (App.)  3G.] 

Hon.  M.  D.  Ector,  Presiding  Judge. 

"      C.M.W.XKLEH,W 

"    Jonx  P.  WuiTii,  i 

Drankenness  —  Intent.  — 1»  cases  which  involve  intention,  as  well  as  acts  (as  theft,  etc.), 
evidence  of  the  drunkenuesg  uf  the  prisoner  at  the  time  of  the  commission  of  the  crime 
is  relevant. 

Appeal  from  the  District  Court  of  Bexar  County.     Before  Hon. 

GeOR(IK  II.  NOONAN. 

C.  K.  Breneman,  for  appellant. 

A.  J.  Peeler,  Assistant  Attorney-General,  for  the  State. 


?■ 


UK.NZ    v.  STATK. 


7()!> 


Facts  of  the  Casa. 


into  c'on- 
noditatcd 
}  truly  be 
'rom  sud- 
that  con- 
jonceived 
it  a  crime 
oxicatioii 
"  Hence 
ation  and 
2re  fit  of 
is  at  once 
Ind,  gen- 
arisou  of 
at,  at  the 
nder  sucli 
be  nature 
hem,  that 

ground. 


heft,  etc.), 
t  the  crime 


re  Hon. 


WiNKLEU,  J.  — The  appellant  was  tried  and  convicted  in  the  district 
court  of  Bexar  County  on  an  indictment  cliarging  that  lie  "'  unlawfully, 
fraudulently,  and  feloniously  did  steal,  taki-,  and  carry  away  fr(  in  tiu' 
house  of  Juan  Flores,  and  from  the  possesssion  of  Juan  Flmis,  ono 
shawl,  of  the  value  of  three  dollars,  the  property  of  Juan  Flores,  witii- 
out  the  consent  of  said  Juan  Flores,  and  with  the  fraudulent  and  felon- 
ious intent  to  deprive  the  said  Juan  Flores  of  the  value  of  said  shawl, 
and  to  appropriate  said  shawl  to  the  use  of  him,  the  said  Jacob  Wenz, 
contrary,"  etc.  On  the  trial  the  accused  requested  certain  charges  to 
be  given  to  the  jury,  which  were  refused. 

A  motion  was  made  for  a  new  trial,  on  tho  part  of  the  defendant,  in 
which  two  grounds  are  alleged  as  a  reason  why  the  motion  should  be 
sustained.  "  1st.  The  court  erred  in  refusing  to  charge  the  jiu-y  as  to 
the  law  applicable  to  the  case,  as  requested  b}-  the  defendant  in  the 
charge  ui)on  file,  and  part  of  tlie  record  herein.  2d.  The  verdict  is 
contrary  to  law  and  evidence."  The  motion  for  a  new  trial  was  over- 
ruled, and  the  defendant  in  open  court  gave  notice  of  appeal. 

The  appellant  assigns  as  error  the  refusal  of  the  judge  to  give  the 
charge  re<iuestetl  by  him  on  the  trial ;  that  the  court  erred  in  refusing  to 
charge  the  law  applicable  to  the  case,  and  also  in  overruling  the  defend- 
ant's motion  for  a  new  trial. 

It  ajipears  from  the  transcript  that  the  parties  and  their  attorneys 
failed  to  agree  upon  a  statement  of  facts,  and  that  tlie  evidence  was 
made  up  and  certified  by  tlie  judge  who  presided  at  the  trial.  After 
stating  tlie  evidence  of  the  State's  witness,  Juan  Flores,  on  direct  and 
cross-examination,  and  the  defendant's  witnesses,  Jose  Wells,  Billy 
Menger,  and  Ferdinand  Hahn,  and  in  rebuttal  the  State's  witness,  H. 
D.  Bonnet,  the  statement  of  facts  may  be  summarized  as  follows :  — 

The  defendant  went  to  the  store  of  one  Harder ;  it  was  apparent  when 
he  came  there  that  he  had  been  drinking.  He  called  for  beer,  and  drank 
eight  glasses  in  succession.  He  then  went  out  of  Harder's  store,  and 
across  the  street  to  the  store  of  a  person  named  Smith.  Miss  Smith, 
a  3'oung  lady,  was  in  the  store  at  the  time  defendant  came  in  and  asked 
her  for  beer ;  she  said  she  had  no  beer.  He  then  asked  her  for  w  hiskey, 
she  said  she  had  no  whiskey,  and  told  him  he  had  better  leave  the  s(oie 
pretty  quickly.  He  then  ran  out  of  the  store,  down  the  street,  and  into 
the  house  of  a  Mexican  named  Juan  Flores.  He  took  down  a  shawl  that 
was  hanging  on  a  peg  in  the  wall,  worth  $2,  and  ran  out  of  the  door, 
across  an  open  lot.  The  Mexican,  who  happened  to  be  in  the  house  at 
the  time,  upon  being  told  by  a  little  bo}-,  who  stood  near  the  door  by 
which  the  defendant  entered  and  left  the  house,  that  a  man  had  taken 


710 


DIUNKKNNKSS. 


Wfiiz  r.  Stiito. 


t))c  Hliawl,  sliirted  in  pursuit  ttf  the  tlcfcndant,  and  (■tui<j;lit  iiiiii  lu'forohc 
hiul  j?i)t  more  tiiaii  throe  liuiidrod  yards  uway  from  tin*  house.  The 
defendant  at  oncu  gave  up  Iho  sliawl,  and  Floras  marched  him  off  to  a 
police  olllccr.  Tiio  defendant  made  no  resi.stance,  and  was  very  drunk, 
lit'  had  been  omphiye(l  in  the  city  as  a  baker,  but  had  been  di.scharged 
by  various  employers  for  drunkenness.  It  appeared  also  that  he  had 
been  sent  to  the  penitentiary  for  attempting  to  rob  a  safe,  or  something 
of  the  kind,  and  that  he  had  been  pardoned  out.  The  State's  witni'ss, 
Juan  Flores,  proves  the  time  of  the  alleged  taking  as  on  the  morning  of 
the  loth  day  of  Slay,  ISTr),  ji;.>t  after  breakfast;  the  ownership  of  the 
shawl  and  house,  and  that  the  defeiKhuit  did  not  have  permission  to 
entiT  liis  house  and  take  the  shawl ;  that  tlu-re  was  no  person  in  the 
house  when  the  defendrnit  took  the  shawl.  He  proved  the  venue  as  in 
Bexar  County,  and  he  sliited  that  tlie  door  vos  intrtialhj  closed.  On 
this  statement  of  the  facts,  was  the  charge  asked  by  the  defendant  a 
proiMT  one  to  have  been  given  to  the  jury? 

From  the  evidence  introduced  on  the  trial,  and  the  charges  refused, 
it  seems  that  the  theory  of  the  defence  was  that,  at  the  time  the  house 
was  entered  and  the  shawl  taken,  the  defendant  was  too  drunk  to  know 
what  he  was  doing.  It  is  not  contended  by  the  counsel  that  drunken- 
ness is  an  excuse  for  crime ;  but  that,  inasmuch  as  the  question  of 
intent  is  necessarily  an  ingredient  of  the  crime  of  tiicft,  if  the  defendant, 
r.t  *he  time  he  entered  the  house  and  took  the  shawl,  was  too  drunk  to 
know  what  he  was  doing,  he  had  not  sullicient  mental  capacity  to  form 
a  felonious  intent  to  take  the  property  of  its  owner  and  appropriate  it  to 
his  own  use. 

To  what  extent  one  accused  of  crime  may  screen  himself  from  the 
penalty  attached  to  the  crime  alleged,  by  the  plea  of  drunkenness,  ap- 
pears not  to  be  laid  down  in  our  system  of  criminal  procedure,  and,  in 
fact,  ought  not  to  be  prescribed.  Shoidd  such  a  thing  be  attempted, 
the  vicious  would  doubtless  take  advantage  of  it  to  screen  themselves 
from  the  just  consequences  of  their  crimes.  Our  own  laws  being 
silent  on  a  given  subject,  we  are  required  to  go  to  the  common  law  for 
a  rule  by  which  to  be  governed.' 

When  we  go  to\  the  common  law,  as  treated  by  Lord  Coke  and  Sir 
William  Blackstone,  we  are  met  at  the  ver}'^  threshold  of  investigation 
by  such  expressions  as  the  following:  ".Vs  to  artificial  madness,  volun- 
tarily contracted  by  fi,  ankennets  or  intoxication,  which,  depriving  men 
of  their  reason,  puts  them  in  a  temporary  frenzy,  our  own  law  looks 


See  art.  27  of  the  Penal  Code;  Pasc.  Dij;.,  art.  -Ml);};  and  (;alvin  v.  State,  25  Tex.  795. 


INTOXK.'ATIOV    AND    INTKNT. 


7X1 


Wi'iiz  V.  Stiitr 


n  bcfort'  he 
»use.  The 
m  off  to  a 
cry  drunk, 
discharged 
lat  he  had 
somethini: 
's  witness, 
morning  of 
diip  of  the 
fuission  to 
son  in  the 
ennc  as  in 
'osed.  On 
;fcndanl  a 

s  refused, 
tlie  house 
k  to  kncjw 
.  drunken- 
iiestion  of 
lefendanl, 
drunk  to 
y  to  form 
u'iutc  it  to 

from  the 
nness,  ap- 
c,  and,  in 
t  tempted, 
hemsclvcs 
Lws  being 
)n  law  for 

c  and  Sir 
^stigatiou 
5S,  volun- 
A'ing  men 
law  looks 


upon  this  as  an  aggravation  of  the  offence,  rather  than  an  excuse  for 
any  criminal  misbehavior."  '  "A  drunkard,  who  is  vrduntarions  dumon, 
hath  no  privilege  there])y ;  but  what  hurt  or  ill  soever  he  doctli,  his 
diunkemiess  doth  aggravate  it."-  Yet,  notwitlistanding  these  strong 
expressions  of  tim  autiiorf  quoted,  and  whicli  go  to  tiie  foundation  of 
tlie  generally  received  opinion  tliat  drunkenness  will  not,  ])<'.r  nc,  excuse 
the  coMunission  of  crime,  we  are  not  prepared  to  say  that,  in  a  charge 
involving  act  and  intention  both,  as  is  the  crime  of  theft,  there  are  not 
cases  in  which  it  may  be  proper  to  iiKpiire  into  the  mental  condition  of 
the  accused  in  order  to  test  iiis  cajjacity  to  distinguish  between  right  and 
wrong.-' 

It  should  be  borne  in  mind,  however,  that  the  learned  judge  who  de- 
livered tlio  opinion  in  Carter  v.  State  did  not  decide,  but  merely  dis- 
cussed, the  question. 

From  the  investigation  we  have  been  able  to  give  the  subject,  and  with- 
out intending  to  lay  down  as  a  rule  as  to  how  far  the  condition  of  drunk- 
enness may  be  inquired  into,  as  tending  to  show  the  mental  condition  of 
a  person  accused  of  crime  at  the  time  the  act  was  committed,  we  are  of 
the  opinion  that  these  are  matters  which  ought  to  be  8ul)mitted  to  the 
jury  unler  proper  instructions;  and  that  the  propriety  of  giving  or 
refusing  charges  asked  on  the  proposition  must  necessarily  depenil  upon 
the  peculiar  circumstances  attending  each  particular  case,  as  developed 
by  the  evidence  adduced  on  the  trial. 

We  are  also  of  the  opinion  that,  testing  this  case  by  the  light  afforded 
in  the  statement  of  facts,  the  court,  in  favor  of  liberty,  might  with  pro- 
priety have  submitted  to  the  jury  the  question  of  the  capacity  of  the 
accused  to  judge  between  right  and  wrong  at  the  time  he  took  the  shawl, 
as  asked  in  the  charge  refused  ;  or,  if  the  charge  asked  did  not,  in  the 
mind  of  the  judge,  express  the  law  a[)plical)le  to  the  facts,  that  he 
should  have  made  the  proper  qualification,  thus  calling  attention  to  this 
point.'* 

"NVe  are  of  opinion  the  court  erred  in  refusing  to  charge  the  jury  on 
this  proposition,  and  in  overruling  the  defendant's  motion  for  a  new 
trial;  and  for  these  errors  the  judgment  is  rcverscvl  and  the  cause 
remanded. 

Reversed  and  remanded. 


1  4  ni.  Coin.  '.'V. 
»1  Inst.  2«7. 


'  Ferrell  v.  State,  43  Tex.  503;  Carter  v. 
State,  \1  Tex.  iiOO. 

*  Paso.  Dig.,  art.  30C1. 


ex.  795. 


712 


UUUNKKNNE88. 


liigulltt  V.  Statu. 


INTOXICATION  — HELEVANT  ON  CAl'ACITV  TO  COMMIT  LARCENY. 

I  NO  ALLS  V.  State 

[4H  Wis.  lu:.] 

Jn  the  Supreme  Court  of  WiseotiHin,  August  Term,  1879. 

Hon.  Edwakii  (J.  Hv\s,Ckiff  Justice 
'•     OusAMf.s  Cmi.i;, 
"     ^Vm....a.m  1M.v.,n,     ^ 

"        |)\MI>    TXYI.MII,  ^ 

'•      1L\K1.<»W    S.   okton. 

Intoxication  —  Bar^lary  -'Capacity  to  Commit.—  It  in  compoient  to  show  as  a  detenne 
to  acriniit  tlittl  thu  priHonfr  wits  in  hiicIi  u  physical  coiKlitiDii  iix  toromlcrit  iinprobublu 
thai  he  <M>ininitte<l  it ;  as  for  uxampto  tliitt  ho  waiiloo  drunk  to  have  carried  out  a  care- 
fully cxucutud  lurcuny. 

RiiKOU  to  tho  Circuit  Court  of  Polk  County. 

The  prisoner  was  indicted  :ind  convicted  of  the  larceny  of  goods  from 
a  shop. 

"The  evidence  on  the  part  of  the  Stale  showed  that  a  hole  had  l)een 
cut  in  the  upper  part  of  a  pane  of  glas-i  in  the  lower  sush,  large  ciiougli 
to  perniit  the  insertion  of  a  man's  hand  and  arm  ;  and  that  a  nail  which 
fastened  the  lower  sash  had  been  removed,  the  window  then  opened  and 
the  goods  removed,  without  any  disttirbance  or  confusion  of  the  goods 
in  the  shop  which  were  not  taken.  The  plaintiff  in  error  had  sworn  that 
he  had  been  drinking  very  often,  on  the  night  the  larceny  was  com- 
mitted, of  both  whiskey  and  beer;  and  that  he  had  left  Janesville  be- 
fore the  larceny  was  committed,  and  knew  nothing  about  it  He  then 
called  as  a  witness  one  Albert  Jones,  who  had  .seen  the  plaintiff  in  error 
in  the  evening,  before  the  larceny  had  been  (committed.  The  witness 
was  asked  the  following  question:  '  Where  and  in  what  condition  was 
lie?'  The  question  was  objected  to  by  the  district  attorney  as  incom- 
petent, and  thereupon  the  following  colloquy  took  place  between  the 
learned  circuit  judge  and  the  counsel  for  the  defendant:  — 

^^  Judge:  '  The  testimony  of  the  defendant  here  indicates,  not  only 
the  possession  of  his  faculties,  but  a  distinct  remembrance  of  what  took 
place  at  the  time  ;  and  I  don't  see  the  propriety  of  taking  up  the  time 
to  show  his  condition.  The  only  question  is,  whether  he  was  so  under 
the  influence  of  liquor  that  he  did  not  know  what  he  was  doing.  He  has 
stated  himself  that  he  was  at  various  places,  and  what  he  was  doing.' 


DICrXKENNKSS. 


7i;j 


Pliyslcal  Iiicnpaclty  to  roininit  Trlirn' 


Counsel:  '  We  dosire  to  sliow  that  In- was  in  swell  a  condition  thai  lie 
I'ould  not  have  dnni;  tliis  job  ns  neatly  as  it  was  done.'  JikUji- :  'I 
don't  underslainl  you  are  entitled  to  show  tliat.  The  evidence  is  only 
admissililo  for  the  purpose  of  sliowin*;  tliat  the  person  was  so  under  the 
influence  of  lifpior  that  ho  did  not  comprehend  what  be  was  d  )ing.' 
Coumd:  '  Wo  offer  the  evidence  for  tlio  purpose  of  showing  that  the 
defendant  was  physically  and  mentally  incapable  of  committing  the  burg- 
lary as  it  is  shown  to  have  been  done.'  Court:  '  If  that  is  the  purpose, 
I  will  exclude  it.  It  is  only  admissible  for  the  purpose  I  have  indi- 
cated, and  not  for  any  other." 

The  defendant  duly  excepted  to  the  ruling  of  the  judge  excluding 
the  evidence.  Afterwards,  in  his  instnictions  to  the  jury,  the  learucfl 
circuit  judge  reiterated  the  same  idea  n  »  tn  the  purposes  for  which  the 
intoxication  of  the  accused  could  be  considered  l)y  the  jury,  and  said : 
"  One  cannot  shield  himself  under  tb(  plea  of  intoxi'  ition  to  justify  the 
commission  of  any  act;  and  the  Oiily  way  tlri'^  intoxication  becomes 
admissible  in  evidence  at  all,  is  to  show  tli  ■'.  when  the  act  complained 
of  was  committed,  the  party  was  so  inlL^xicated  as  to  be  beside  himself, 
was  not  in  his  right  mind,  and  if  that  mental  condition  was  produced 
by  temporary  intoxication,  why  intoxication  maybe  shown.  Rut  die 
testimony  shows  that  the  person  was  not  so  far  gone,  his  mental  facul- 
ties were  not  so  impaired  by  intoxication  as  to  deprive  hiin  of  reason 
and  put  him  in  a  condition  where  he  didn't  know  what  he  was  doing ;  it 
don't  go  as  a  defence  at  all.  It  is  only  when  it  tends  to  show  that  the 
person  who  committed  the  act,  by  reason  of  intoxication,  was  not  in  bis 
right  mind,  that  it  is  a  defence.'  "  This  instruction  was  also  excepted 
to  by  the  defendant. 

Tatlou,  J.  —  We  are  strongly  impressed  with  the  idea  that  the  learned 
judge  did  not  fully  understand  the  object  of  the  offer  to  show  the  con- 
dition of  the  defendant  as  to  drunkenness  at  or  about  the  time  the  lar- 
ceny was  committed.  As  we  understand  the  offer,  it  was  not  to  show 
that  the  accused  was  in  such  a  mental  condition  as  would  excuse  the 
commission  of  an  act  which  would  constitute  the  crime  of  larceny  if 
committed  by  a  sober  man.  It  was  not  offered  as  an  excuse  or  defence 
for  a  larceny  committed,  but  for  the  purpose  of  showing  that  it  was 
highly  improbable  that  the  accused  did  in  fact  commit  the  acts  com- 
plained of,  viz. :  the  entering  of  the  shop,  and  removing  the  goods 
therefrom ;  not  as  a  defence  for  want  of  mental  capacity,  but  as  evi- 
dence tending  to  show  that  the  acts  which  constituted  the  offence  were 
not  done  by  the  accused.  This  object  of  the  evidence  seems  to  have 
been  sufficiently  indicated  by  the  learned  counsel  for  tiie  defendant ; 


714 


DRUNKENNESS. 


InKiills  I'.  State. 


and  for  the  purpose  so  iiidieiited  wc  arc  of  the  opinion  the  evidence  was 
clearly  eompetoiit. 

Tiie  authorities  cited  in  the  bri«.*  of  the  learned  counsel  for  the  plain- 
tiff in  error  ihuicate  in  wliat  cases  it  is  competent  to  show  the  intoxica- 
tion of  the  accused  upon  the  question  of  tlie  particular  intent  with  which 
an  unlawful  or  wrongful  act  was  done,  wiien  such  intent  is  necessary  to 
constitute  the  offence  charged.  None  of  tlie  cases  cited,  liowcver,  have  a 
direct  bearing  upon  the  point  made  in  tliis  case.  It  woidd  seem,  how- 
ever, tluit  tluTc  can  be  no  doubt  as  to  the  riglit  of  a  person  accused  of 
crime  to  sliow  that  at  the  time  of  Hs  commission  he  was  physically  in- 
capable of  committing  it.  There  can  be  no  doubt  of  the  right  of  the 
accused  to  show  that  he  was  at  the  time  prostrated  by  a  disease  which 
rendeied  it  highly  improbable  that  he  could  have  endured  the  exertion 
and  labor  necessary  to  commit  the  crime.  Auu  so  we  tiiink  if,  in  thisi 
case,  the  evidence  had  shown  that  within  a  few  hours  of  the  time  this 
larceny  must  have  been  committed,  the  accused  had  been  temporarily 
prostrate(i  b}'  drunkenness,  so  as  to  render  it  highly  improbable  that  he 
could  have  been  present  at  the  place  where  the  crime  was  committed, 
or,  if  able  to  be  present,  that  ho  could  have  done  what  the  evidence 
shows  was  d(nie  by  those  who  committed  the  larccn}',  he  is  equally  en- 
titled to  show  tiiat  fact.  In  such  case  the  intoxication  is  not  shown  for 
the  purpose  of  excuse  or  mitigation  of  the  offence  charged;  but  as  evi- 
dence tending  to  show  that  he  was  not  present  and  did  not  commit  the 
acts  constituting  the  offence.  Evidence  of  this  kind  would  have  but 
little  weight  against  direct  evidence  showing  the  actual  presence  of  the 
accused  at  the  time  and  place  when  and  w^here  the  crime  was  committed ; 
but,  certainly  in  the  absence  of  any  such  direct  evidence,  the  accused 
may  give  in  evidence  any  fact,  which  would  have  a  natui'al  tendency  to 
render  it  improbable  tliat  he  was  there  and  did  tlie  acts  complained  of, 
and  the  fact  that  drunkenness  was  tlie  thing  which  tended  to  prove  such 
improbabilit3%  can  make  no  difference.  If  a  man  by  voluntary  drunk- 
enness renders  himself  incapable  of  walking  for  a  limited  time,  it  is  just 
as  ct)rapetent  evidence  to  show  that  he  did  not  walk  during  tlie  time  he 
was  so  incapable,  as  though  he  had  been  so  rendered  incapable  by  par- 
alysis of  his  limbs  from  some  cause  f)vcr  which  he  had  no  control.  The 
cause  of  the  incapacity  in  such  case  is  immaterial ;  the  material  question 
is,  was  he  in  fact  incapable  of  doing  the  acts  charged?  We  cannot 
speculate  upon  the  effect  which  the  evidence,  if  admitted,  would  have 
had  upon  the  verdict  of  the  jury  in  this  case.  It  was  offered,  apparently 
in  good  faith,  as  evidence  temling  to  show  that  the  accused  could  not 
have  committed  the  offence.    Had  the  drunkenness  been  proved  so  com- 


PKOVOCATION 


dkoukp:  or  crime. 


715 


Koc'uau  V.  Commouwcaltli. 


ideiicc  was 

•  the  plain- 
i  intoxica- 
with  which 
icessaiy  to 
vvv,  have  a 
ccm,  how- 
iccused  of 
sically  iii- 
ght  of  the 
asc  wliich 
a  exertion 
if,  in  th.isi 
time  this 
mporarily 
)le  that  lie 
jmmittcd, 
!  evidence 
lually  en- 
shown  for 
lit  as  evi- 
mmit  the 
have  but 
ice  of  the 
mmitted; 
J  accused 
idcncy  to 
ained  of, 
rove  such 
y  drunk- 
it  is  just 
I  time  he 
!  by  par- 
rol.    The 
question 
e  cannot 
uld  have 
)parently 
ould  not 
I  so  com- 


plete as  to  have  destroyed  his  powers  of  locomotion,  or  so  as  to  have 
dostro^'cd  the  steady  use  of  his  limbs,  it  would  have  had  a  tendency  to 
disprove  the  char<;e  made  against  him.  The  evidence  being  material,  it 
should  have  been  admitted,  and  its  rejection  was  an  error  for  which  this 
court  is  compelled  to  reverse  the  judgment. 


[Omitting  other  points.] 


Judgment  reversed. 


INTOXICATION— PROVOCATION— DEGREE   OF  CRIME. 

Keenan   V.  Commonwealth. 

[44  Pa.  St.  55,] 

In  the  Supreme  Court  of  Pennsylvania^  I8C2. 

Hon.  Waltkr  II.  Lowrik,  Chief  Justice, 
•'     Geokuk  W.  \Vooi>wai{1>,    ^ 

■  Justices 


"    Jamks  TnoMi'Sox, 
'•    William  Stuonc, 
"    John  M.  Rkak, 


Intoacloation  —  Provocation  —  Degree  of  Crime.  —  On  a  diargo  of  murder,  the  fact 
thill,  the  j)ris()ner  \v;is  intoxicjited  will  iidt  make  iiii  inadtMiuate  provocation  an  ade- 
quate one,  uiilcsa  it  was  sufllcient  to  render  him  unable  to  form  a  wilful,  deliberate 
and  premeditated  design  to  kill  or  incapable  of  judging  of  his  acts  and  their  legitimate 
conBequeuces. 

Error  to  the  court  of  Oyer  and  Terminer  of  Allegheny  County. 

This  was  an  indictment  against  Thomas  IJ.  Keenan,  for  the  murder 
of  John  A.  Obey,  on  tlie  5tli  day  of  July,  18()2. 

Obey  was  conductor  on  one  of  the  cars  of  the  Citizen's  Passenger 
Railway  Company,  running  to  Lawrenceville.  The  defendant,  with 
some  seven  others,  entered  the  car,  all  more  or  less  intoxicated.  They 
were  noisy  and  boisterous  in  the  car,  sitting  on  each  others  knees,  talk- 
iuf^  loudly,  and  using  improper  language.  The  conductor  admonished 
them  to  be  quiet  "  as  there  were  ladies  in  the  car ;  "  but  they  c(»ntiniied 
on  as  before.  Several  persons  left  the  car  in  consequence  of  the  bad 
conduct  of  the  party,  and  walked  on  the  pavement.  After  twice  advis- 
ing defendant  to  be  q  let,  without  effect,  save  to  elicit  threatening 
replies,  the  conductor  took  hold  of  him  to  put  him  out.  The  defendant 
struck  the  conductor  and  was  struck  in  return,  and  then  in  the  scutlle 


7i<; 


DKUNKENXKSh. 


KecQiin  V.  Cominoiiwealth. 


which  followed  drew  a  knife  and  stabbed  the  conductor  three  or  four 
times,  which  caused  his  death  soon  after. 

Immediately  after  the  stabljing  the  defendant  was  arrested,  and  taken 
before  a  magistrate.  No  knife  was  found  upon  his  person,  nor  did  any 
witness  present  at  the  trial  testify  as  to  his  being  intoxicated.  Some 
days  afterwards,  a  knife  answering  the  description  of  the  one  seen  in 
his  hand  when  the  act  was  committed  was  found  in  or  near  the  cushion 
of  the  car  in  which  the  parties  were  at  the  time.  Under  the  ruling  of 
court  below  (Stekrett,  P.  J.)  the  defendant  was  convicted  of  murder 
in  the  first  degree.  The  case  was,  thereupon,  removed  into  this  court, 
where  the  answers  of  the  court  below  to  certain  j)oints  which  had  been 
propounded  by  the  counsel  for  the  defendant  were  assigned  for  error, 
all  which  arc  sufficiently  presented  in  the  opinion  of  this  court. 

The  case  was  argued  by  SwartzwaUler  and  Marshall,  for  the  defend- 
ant, and  by  Miller,  Hampton  and  Howard,  for  the  Commonwealth. 

LowRiE,  C.  J.  —  Our  statute  adopts  the  common  law  definition  of 
murder,  and  then  distinguishes  it  of  two  degrees,  defining  the  first  degree 
specially  by  certain  enumerated  cases,  and  generally  by  the  words, 
' '  another  kind  of  wilful,  deliberate  and  premeditated  killing. "  It  is  this 
general  part  of  the  definition  that  we  have  to  apply  in  the  present  case. 

A  careful  study  of  our  jurisprudence  on  this  subject  clearly'  reveals 
the  fact  that  such  terms  as  a  deliberate  purpose  or  a  deliberate  and  pre- 
meditated intent  to  kill,  or  a  specific  intent  to  take  life,  are  sometimes 
substituted  for  the  words  of  the  statute  ;  yet  our  reported  jurisprudence 
is  very  uniform  in  holding  that  the  true  criterion  of  the  first  degree  is 
the  intent  to  take  life.  The  deliberation  and  premeditation  lequired  by 
the  statute  are  not  upon  the  intent,  but  upon  the  killing.  It  is  deliber- 
ation and  premeditation  enough  to  form  the  intent  to  kill  and  not  upon 
the  intent  after  it  has  been  formed.  An  intent  distinctly  formed  even 
"  for  a  moment"  before  it  is  carried  into  act  is  enough. 

What  the  definition  requires,  therefore,  is  a  distinctly  formed  intent 
to  kill,  not  in  self-defence,  and  without  adequate  provocation.  It  re- 
(luires  the  malice  prepense  or  aforethought  of  the  common-law  defini- 
tion of  murder  to  be,  not  a  general  malice  but  a  special  malice  that  aims 
at  the  life  of  a  person.  This  distinctly  formed  intent  to  take  life  is 
easily  distinguished,  in  general,  from  the  instinctive  and  spontaneous 
reaction  of  mind  and  body  against  insult  and  injury,  which  is  often  the 
result  of  no  distinctly  formed  intention  ;  and  also  from  those  eases  of 
previous  and  deliberate  intention  to  kill,  Avhich  may  override  even  what, 
without  it,  would  be  adequate  provocation  given  at  the  time  of  tiie  kill- 
ing. 


DEGREES    OF    MlIiUKK. 


71; 


lutoxiciitioii. 


^e  or  four 

and  taken 
or  did  any 
id.  Some 
ne  seen  in 
le  cushion 
5  ruling  of 
of  murder 
his  court, 
had  been 
for  error, 

e  defend- 
lalth. 

inition  of 
st  degree 
le  words, 

It  is  this 
lent  case. 
y  reveals 

and  prt- 
jmetimes 
prudence 
degree  is 
[uired  by 
1  deliber- 
lot  upon 
aed  even 

d  intent 
.  It  re- 
w  deflni- 
hat  aims 
ve  life  is 
itaneous 
fton  the 
:'ascs  of 
'n  what, 
tiie  kill- 


Keeping  this  common  understanding  of  the  definition  in  mind,  wc 
shall  also  get  clear  of  the  iiilluence  of  the  eases  in  oilier  States,  where 
the  terms  deliberate  and  premeditated  are  applied  to  the  malice  or  in- 
tent, and  not  to  the  act,  and  thus  seem  to  acquire  a  purpose  brooded 
over,  formed  and  matured  before  the  occasion  at  which  it  is  carried  into 
act.  Under  such  a  delinition  of  tlie  intention,  all  our  jurisprudence  by 
which  malice  and  intent  are  implied  from  the  cliar-^.^ter  of  the  act,  and 
from  the  deadly  nature  of  the  weapon  used,  would  be  set  aside  ;  for  we 
could  not,  from  these,  imply  such  a  previous  and  deliberate,  but  only  a 
distinctly  formed  intent,  and  this  involves  deliberation  and  premedita- 
tion though  they  may  be  very  brief.  We  should  therefore  blot  out  all 
our  law  relative  to  implied  intent  or  malice,  and  require  it  to  be  always 
l)roved  as  express.  And  this  wouUl  be  a  most  disastrous  result ;  for 
the  most  deliberate  murderers  are  usually  those  who  know  how  to  con- 
ceal their  intent  until  the  occasion  arises  for  the  execution  of  it. 

And  still  keeping  in  mind  our  usual  understanding  of  this  general 
part  of  the  definition  of  murder  in  the  first  degree,  we  are  further  i)re- 
pared  for  an  intelligent  appreciation  of  the  influence  which  the  fact  of 
intoxication  may  legitimately  have  on  the  degree  of  criminality  and  in 
the  formation  of  the  intent  to  kill,  and  in  the  ascertainment  of  it. 

The  learned  judge  of  Oyer  and  Terminer  charged  the  jury  that  the 
prisoner's  intoxication  was  not  sucli  an  excuse  as  would  allow  a  less 
than  ordinarily  adecpiate  provocation  to  piilliate  liie  offence,  unless  it 
was  so  great  as  to  render  him  "  unable  to  form  a  wilful,  deliberate,  and 
premeditated  design  to  kill,"  or  as  he  afterwards  expressed  the  thought 
"of  judging  of  his  acts  and  their  deliberate  consequences."  Tlie  first 
of  these  expressions  had  already  been  very  correctly  and  adequately 
explained  to  the  jury,  and  tlie  second  plainly  means  that,  in  using  a 
deadly  weapon  in  a  deadly  way,  the  prisoner  is  charged  with  the  ordin- 
ary consequences  of  his  acts  ;  if  he  was  not  so  drunk  as  to  be  unable  to 
judge  that  such  would  ordinarily  be  the  co'isequence  of  such  acts.  The 
two  forms  of  expression  are  cherefore  the  same  in  their  meaning. 

We  discover  no  error  in  this  instruction,  and  think  it  is  in  substan- 
tial accordance  with  all  the  best  considered  judicial  precedents,  and  if 
we  keep  clear  of  the  peculiarities  found  in  other  States,  arising  either 
from  misapprehension  or  from  a  differently  worded  statute,  we  shall 
have  little  difficulty  in  recognizing  its  correctness. 

No  one  pretends  that  intoxication  is,  of  itself,  an  excuse  or  palliation 
of  a  crime.  If  it  were,  all  crimes  would,  in  a  great  measure,  depend 
for  their  criminality  on  the  pleasure  of  their  perpetrators,  since  they 
may  pass  into  that  state  when  liiey  will.     But  it  is  argued  that,  because 


718 


DULMvKNNESS. 


Kecnau  v.  Conimouweulth. 


intoxication  produces  a  state  of  mind  that  is  easily  excited  by  provoca- 
tion, therefore  the  crimes  committed  under  such  intoxication  and  provo- 
cation are  less  criminal  than  when  committed  in  a  state  of  sobriety  under 
the  same  provocation.  We  are  very  sure  that  no  statute  will  ever  an- 
nounce such  a  rule,  and  that  we  are  not  authorized  to  announce  it  in  in- 
terpreting this  statute. 

Stated  in  its  most  general  form,  it  amounts  to  this :  that  because  the 
mind  usually  receives  provocation  with  an  intensity  proportioned  to  its 
own  excitement  or  excita^iility,  therefore  the  act  of  provocation  must 
be  measured,  not  by  its  own  character  and  its  ordinary  effect,  but  by 
the  state  and  habit  of  the  mind  that  receives  it.  Then  measured  by 
this  rule,  the  crimes  of  a  proud,  or  captious,  or  selfish,  or  habitual!}'  ill- 
natured  man,  or  of  one  who  eats  or  fasts  too  much,  or  of  one  who  is  habit- 
ually quarrelsome,  covetous,  dishonest,  or  thievish,  or  who  by  any  sort 
of  indulgence,  fault  or  vice  renders  himself  very  easily  excitable,  or 
very  subject  to  temptation,  are  much  less  criminal  than  those  of  a  mod- 
erate, well-tempered  and  orderly  citizen,  because  to  the  former  a  very 
small  provocation  or  temptation  becomes  adequate  to  excuse  or  palliate 
any  crime.  If  such  were  the  rule,  a  defendant  would  be  much  more 
liable  to  injure  than  benefit  his  case,  by  showing  a  good  character,  and 
the  law  would  present  no  inducement  to  men  to  try  to  rise  to  the  stand- 
ard of  even  ordinary  social  morality. 

Of  course  it  is  impossible  that  such  a  principle  can  be  a  rule  of  law. 
If  it  were  admitted,  it  could  not  be  administered,  for  no  judicial  tribu- 
nal can  have  time  or  competence  for  such  a  thorough  investigation  of  the 
special  ciiaracter  or  state  of  each  individual  mind  as  the  rule  I'equires, 
and  therefore  it  woultl  necessarily  jump  to  a  conclusion  such  as  the 
caprice,  or  prejudice,  or  other  influence  of  the  moment  would  dictate. 

Indeed,  if  we  admit  the  principle,  and  carry  it  out  logically,  wo  shall 
abolish  law  entirely  as  a  compulsory  rule  of  civil  conduct ;  for  we  shall 
measure  all  crime  and  all  duty  by  the  conscience  of  the  individual,  and 
not  by  the  social  conscience,  and  no  contract  could  be  binding,  no  debt 
collected,  no  duty  enforced,  and  no  crime  punished,  unless  where  the 
d  fendant's  conscience  feels  that  it  ought  to  be,  and  thus  courts  would 
be  useless,  and  social  organization  impossible.  No  such  principles  can 
stand  before  man's  natural  ti'udency  to  social  organization,  or  before 
tlie  i)'>wer  and  right  of  an  organized  society.  Individual  or  even  social 
charily  may  often  act  upon  the  principle,  but  law  excludes  it  from  its 
si)liere.  ^'ery  few  persons  practically  admit  it.  Even  those  individuals, 
se<ts  and  factions  that  are  most  zealous  for  the  rights  of  the  individual 
conscience,  have   very  often  been   the  least  respectful  of  the  rights  of 


KEKNAX     V.  COMMONWEALTH. 


7iy 


Intoxication. 


conscience  of  any  other  society  or  faction  than  their  own,  and  of  the 
conscience  of  otlier  persons,  and  the  most  inclined  to  exert  moral  and 
physical  force,  in  order  to  impress  their  opinions  and  rnles  of  action 
upon  others,  and  thus  the  extreme  of  individuaUsm  runs  into  tyranny  or 
despotism. 

In  most  matters  what  is  usual  and  ordinary  in  any  given  society  is  the 
law  of  that  society.  All,  therefore,  must  come  up  to  the  standard  of 
the  usual  and  ordinary  or  take  the  consequences.  Those  who  in  their 
conduct  fall  below  the  standard  must,  to  that  extent,  sul)mit  to  the  con- 
demnation of  society,  cither  legally  or  morally,  according  as  rules  trans- 
gressed are  civil  or  only  moral.  And  those  whose  conduct  lises  above 
that  staudaid  and  yet  harmonizes  with  it  must  always  be  accepted  as 
highly  meritorious  citizens.  And  this  princii.le  ai^.lies  here ;  f,>r  men 
who  degrade  themselves  below  the  ordinary  level  of  social  morality,  by 
bad  conduct  or  habits,  do  not  thereby  relieve  themselves  from  having  theiV 
acts  and  duties  judged  by  the  ordinary  rules  of  social  action.  °They 
cannot  set  up  their  own  vices  as  a  reason  for  being  set  into  a  special 
class  that  is  to  be  judged  more  favorably  than  other  persons. 

The  prisoner  was  somewhat  intoxicated  when,  with  six  or  seven  com- 
panions, he  entered  the  passenger  car,  and  lie  and  they  seem  to  have 
behaved  badly  and  noisily,  and  used  very  i)rofane  language  there,  so 
that  several  persons  pr^  fom^d  walking  and  left  the  car.     Though  they 
were  twice  n^quested  by  the  conductor  to  be  quiet,  the  prisoner  used 
abusive  and  threatening  language  in  reply,  and  his  companions  and  he 
persisted  in  their  ill-condu'-t,  and  he  expressed  his  ditermination  to 
remain.     Then  the  conductor  took  him  by  tlie  lapel  of  his  coat,  and  was 
proceeding  to  put  him  out,  when  he  struck  the  conductor,  and  was 
struck  in  returnf  and  then  his  companions  joined  in  the  scuffle,  and  he 
drew  a  knife,  and  by  several  strokes  of  it,  mortally  wounded  the  con- 
ductor.    It  is  to  such  evidence  as  this  that  tlie  judge's  charge  relates, 
and  it  seems  to  be  entirely  relevant,  adequate  and  correct",  and  free 
from  any  invasions  of  the  functions  of  the  jury.     And  we  say  this  witli 
special  reference  to  those  parts  of  the  charge  which  say  that  the  pris- 
oner   ouglit    to   be    taken   to  have   intended    the   natural   and  usual 
consequences  of  the  act  of  using  the  knife  in  the  way  he  did  ;  that  a 
conductor  had  a  right  to  put  out  a  passenger  so  misbehaving;  that  the 
prisoner's  resistance  and  the  blow  struck  by  him  were  his  o\vn  provoca- 
tion of  the  struggle,  in  which  he  used  the  knife,  and  neither  the  struggle 
nor  the  ])low  received  in  return  can  be  any  excuse  for  its  use.     None°of 
the  other  points  need  any  special  notice.     Nor  do  we  find  any  error  in 
impanelling  the  jury  or  in  the  admission  or  rejection  of  evidence.     "We 


720 


DRUNKENNESS. 


I'imiian  v.  State. 


have  considered  the  prisoner's  ease  with  all  the  caution  and  concern 
which  its  terrible  penalties  are  calculated  to  inspire,  and  it  is  with  niucli 
sorrow  on  his  account,  that  we  are  compelled  to  say  that  we  discover  no 
vaUd  ground  for  granting  him  a  new  trial. 

Sentence  affirmed,  and  record  remitted 


DRUNKENNESS  — PASSING  COUNTERFEIT  BILL  —  KNOWLEDGE. 

PiGMAN  V.  State. 
In  the  Supreme  Court  of  Ohio,  January  Term,  1846. 

[H  Ohio,  555.] 
Hon.  Reuben  Wood,  Chief  Justu  <i. 

"        M.VTTHKW  BlRCHAKI),"! 

«<      Nathaniel  C.  Read,   ^Judges. 
"     Peteu  Hitchcock,      J 

Drunkenncaa  of  the  accused,  at  the  time  of  p.-issing  the  alleged  counterfeit  bill,  is  a  circum- 
stance proper  to  be  submitted  to  the  couRidcration  of  the  jury,  and  should  have  its  just 
weight  in  dctermiuing  whether  the  accused  knew  the  bill  to  be  counterfeit. 

This  is  a  writ  of  error  to  the  Court  of  Common  Pleas  of  Marion 
County. 

The  plaintiff  in  error  was  indicted  for  uttering,  publishing,  bartering, 
and  disposing  of  counterfeit  bank  bills.  The  proof  was  the  passing  of 
a  counterfeit  bank  bill  of  twenty  dollars.  A  verdict  of  guilty  was  found 
by  the  jury,  and  the  plaintiff  was  sentenced  to  four  years'  imprisonment 
in  the  penitentiary.  A  number  of  errors  are  aspijiiiotL  "Hut  the  one 
chiefly  relied  upon,  or  at  all  available,  as  disclosed  i.  ..  >i;.?  of  excep- 
tions, is  that  the  court  ruled  out  evidence  offered  :<y  .;;?;  accused,  to 
show  that  he  was  drunk  at  the  time  he  passed  the  bi'i),  A  therefore  did 
not  know  what  he  was  doing,  or  that  the  bill  was  counterfeit. 

The  case  was  argued  for  the  defendant  by  James  H.  Godman.  No 
argument  was  submitted  for  the  plaintiff. 

Read,  J.  —  Drunkenness  is  no  excuse  for  crime  ;  yet,  in  that  class  of 
crimes  and  offences  which  depend  upon  guilty  knowledge,  or  the  cool- 
ness and  deliberation  with  which  they  shall  have  been  perpetrated,  to 
constitute  their  commission,  or  fix  the  degree  of  guilt,  it  should  be  sub- 
mitted to  the  consideration  of  the  jury.    If  this  act  is  of  that  nature  that 


DULNKEXNESS. 


721 


Kc'luvant  ()ii  Question  of  Knowledge. 


:l  concern 
vith  niucli 
iscover  no 

emitted 


EDGE. 


19  a  circum- 
ave  its  just 


f  Marion 

arterinff, 
issing  of 
'na  found 
isonment 
;  the  one 
if  excep- 
iised,  to 
jfore  did 

an.     No 

i  class  of 
he  cool- 
rated,  to 
I  be  suh- 
ture  that 


the  law  requires  it  should  be  done  with  guilty  knowledge,  or  the  degree 
of  guilt  dei)euds  ui)on  the  calm  and  deliberate  state  of  the  mind  at  the 
time  of  the  commission  of  the  act,  it  is  proi)er  to  show  any  state  or  con- 
dition of  the  person  that  is  adverse  to  the  proper  exercise  of  the  mind, 
and  the  undisturbed  possession  of  the  faculties.  The  older  writers  re- 
garded drunkenness  as  an  aggravation  of  the  offence,  and  excluded  it 
for  any  purpose.  It  is  a  higli  crime  against  one's  self,  and  offensive  to 
society  and  good  morals  ;  yet  every  man  knows  that  acts  may  be  com- 
mitted in  a  fit  of  intoxication  that  would  be  abhorred  in  sober  moments. 
And  it  seems  strange  that  any  one  should  ever  have  imagined  that  a 
person  who  committed  an  act  from  the  effect  of  drink,  which  he  would 
not  have  done  if  sober,  is  worse  tiian  the  man  who  commits  it  from 
sober  and  deliberate  intent.  The  law  regards  an  act  d(Mie  in  sudden 
heat,  in  a  moment  of  frenzy,  when  passion  has  dethroned  his  reason,  as 
less  criminal  than  the  same  act  when  performed  in  the  cool  and  undis- 
turbed possession  of  all  the  faculties.  There  is  notliing  the  law  so  much 
abhors  as  the  cool,  deliberate,  and  settled  purpose  to  do  mischief.  That 
is  the  quality  of  a  den.  n  ;  whilst  that  which  is  done  on  great  excite- 
ment, as  when  the  mind  is  broken  up  by  poison  or  intoxication,  although, 
to  be  punished,  may,  to  some  extent,  l)e  softened  and  set  down  to  the 
infirmities  of  human  nature.  Hence  —  not  regarding  it  as  an  aggrava- 
tion—  drunkenness,  as  anything  else  showing  the  state  of  mind  or  de- 
gree of  knowledge,  should  go  to  the  jury.  Upon  this  principle,  in 
modern  cases,  it  has  been  permitted  to  be  shown  that  the  accused  was 
drunk  when  he  perpetrated  the  crime  of  killing,  to  rebut  the  idea  that  it 
was  done  in  a  cool  and  deliberate  state  of  the  mind,  necessary  to  con- 
stitute murder  in  the  first  degree.  The  principle  is  undoubtedly  right. 
So,  on  a  charge  of  passing  counterfeit  money ;  if  the  person  was  so 
drunk  that  he  actually  did  not  know  that  he  had  passed  a  bill  that  was 
counterfeit,  he  is  not  guilty.  It  oftentimes  recjuires  much  skill  to  de- 
tect a  counterfeit.  The  crime  of  passing  counterfeit  money,  consists  of 
knowingly  passing  it.  To  rebut  that  knowledge,  or  to  enable  the  jury 
to  judge  rightly  of  the  matter,  it  is  competent  for  the  person  charged  to 
show  that  he  was  drunk  at  the  time  he  passed  the  bill.  It  is  a  circum- 
stance, among  others,  entitled  to  its  just  weight. 

Judgment  reversed  and  cause  remanded. 
40 


782 


DKUNKENN'ESS. 


Stiito  ().  McCaiits. 


drunkennkss  — pt'ovooation  — when  evidence   op  intoxica- 
tion to  be  considered. 

State  v.  McCants. 

[1  Spears,  384.] 

In  the  Court  of  Appeals  of  South  Carolina,  May,  1843. 


*  Judges. 


llou. 

J.  S.  Richardson, 

I( 

J.  B.O'Nkall, 

^i 

J.  J.  Evans, 

« 

B.  J.  Eaklk, 

II 

A.  V.  Bl  TLKI{, 

K 

D.  L.  Wakulaw, 

].  One  in  a  state  ofVoluntary  Intoxication  is  Bubjcct  to  the  same  rules  of  conduct 

and  the  same  legal  inferences  us  a  suhw  ui;ui. 
18.  Provocation  —  Evidences  of  Drunkenness  Relevant.— But  where  a  provocation  has 

been  received  wliich  if  acted  upon  instantly  would  mitigate  the  otfence  of  a  Hobor  man, 

and  the  que.slion  in  tliecuse  of  a  drunlcun  man  is  whether  that  provocation  was  in 

iruth  acted  on,  evidence  of  intoxication  may  be  cousiidered. 

Tr.ed  before  Wardlaw,  J.  at  Charleston,  May  tei-m,  1842. 

The  indictment  charged  Thomas  N.  McCants  with  having  murdered 
William  Ladd,  en  19th  of  March,  1842,  by  stabbing  hira  to  the  heart 
with  a  pocket  knife.  There  was  evidence  that  the  prisoner  was  drunk 
at  the  time. 

Leaving  to  the  j  iry  the  evidence  as  to  prisoner's  being  drunk,  the 
court  instructed  therr.  that  upon  the  question  whether  the  prisoner  acted 
from  a  former  grudge,  or  from  sudden  heat  upon  new  provocation,  his 
intoxication  might  be  considered  as  a  condition  frequently  predisposing 
to  forgetfulness  of  former  injuries  and  susceptibility  of  new  offence ;  but 
that  in  deciding  the  question  whether  there  was  reasonable  time  for  cool- 
ing, drunkenness  was  not  to  be  considered.  For  the  law  has  no  more 
tenderness  for  the  frenzy  of  the  voluntary  demon  than  for  the  diabolical 
malignity  of  temper,  which  never  cools  in  its  thirst  for  revenge ;  and  that 
in  fine  if  the  juiy  took  the  view  which  the  court  did  of  the  previous 
threat  and  of  the  first  fight,  then  the  questions  were,  did  the  prisoner 
cool,  or  was  there  time  for  a  reasonable  man  to  have  cooled?  In  con- 
sidering these  questions,  the  presiding  judge  exhorted  the  jury  to  give 
the  prisoner  the  benefit  of  all  rational  doubts ;  I  pointed  out  (said  the 
court)  the  blood  trickling  from  his  face  after  the  first  fight  —  the  violence 
then  exhibited  by  both  parties,  and  the  struggling  between  the  prisoner 


INTOXICA- 


i3. 


33  of  conduct 

•ovocfttion  has 
'a  sober  inun, 
catloa  was  iu 


murdered 
)  tlie  heart 
was  drunk 

drunk,  the 
oner  acted 
cation,  his 
edisposinj; 
fence ;  but 
le  for  cool- 
is  no  more 
diabolical 
;  and  that 
e  previous 
e  prisoner 
In  coii- 
ry  to  give 
(said  the 
e  violence 
J  prisoner 


.MUlJUEIl COOLING   TI.MK. 


7  2;  J 


Drunki'inii'.ss  not  lielcvaiit. 


and  Driggers  ;  and  I  dwelt  less  than  my  subsequent  reflections  have  done 
upon  his  pursuing  with  a  drawn  knife  for  two  hundred  and  twenty-five 
yards  an  unarmed  foe,  after  the  fight  was  stayed  l)y  iiis  cry  for  separa- 
tion. 

The  jury  found  a  verdict  of  "  guilty,"  but  recommuided  toexicutive 
clemenc}'. 

The  defendant  appealed  on  the  following  grounds : 

1.  Because  the  fatal  blow  was  given  in  heat  and  passion,  reasonably 
excited  during  a  sudden  affray,  and  therefore  the  killing  was  only  man- 
slaughter. 

2.  Because  his  Honor  charged  the  jury  that  the  material  question  for 
them,  was,  whether  the  interval  between  the  first  and  second  combat 
afforded  time  for  a  reasonable  man  to  cool,  whereas,  it  is  respectfully 
submitted  the  jury  should  have  been  charged  to  intpiire  whether  the 
suspension  of  reason,  arising  from  sudden  passion  excited  during  the 
affray,  continued  down  to  the  time  of  the  mortal  stroke  given,  or  whether 
there  were  any  such  marks  of  deliberation  as  showed  that  the  prsoner 
did  cool  before  giving  the  mortal  stroke. 

3.  Because  his  Honor  charged  the  jury,  that  upon  a  charge  of  murder, 
where  the  material  question  is  whether  the  act  was  premeditated,  or 
done  with  sudden  heat  and  impulse,  the  fact  of  the  party  being  intoxi- 
cated was  not  a  circumstance  proper  to  be  taken  into  consideration,  with 
a  view  to  determine  whether  the  prisoner  was  actuated  by  passion  or  by 
malice, 

Kunhardt,  Thompson  &  Porter,  for  the  motion. 

Bailey,  Attorney-General,  contra. 

Waudlaw,  J.,  delivered  the  opinion  of  the  court. 

[After  passing  on  the  first  and  second  grounds.] 

In  all  cases  where  the  time  of  cooling  may  be  considered,  whether  the 
time  be  regarded  as  evidence  of  the  fact  of  cooling,  or  as  constituting, 
of  itself,  when  reasonable,  legal  deliberation,  the  whole  circumstances 
are  to  be  taken  into  the  estimate  in  determining  whether  the  time  be 
reasonable.  The  nature  of  the  provocation,  the  prisoner's  physical  and 
mental  constitution,  his  condition  in  life  and  peculiar  situation  at  the 
time  of  the  affair,  his  education  and  habits  (not  of  themselves  volun- 
tary preparations  for  crime),  his  conduct,  manner  and  conversation 
throughout  the  transaction  —  in  a  word,  all  pertinent  circumstances  — 
may  be  considered,  and  the  time  in  which  an  ordinary  man,  in  like  cir- 
cumstances, would  have  cooled,  is  the  reasonable  time.  But  shall  his 
drunkenness  be  considered?  So  far  as  previous  habits  of  drunkenness 
may  have  wrought  a  permanent  influence  upon  the  constitution,  such  in- 


724 


DHINKKNXESS. 


Stttto  V.  MoCiints. 


fluencc  wiP  he  involvo;i  in  the  consideration  of  tho  otiicr  circumstances, 
but  the  direct  effect  of  existing  intoxication,  however  maddening  or 
stupefying,  must  l>e  laid  out  of  view.  Tlie  question  is,  was  there  timi- 
for  a  rea3onal»le  man,  in  like  circumstances,  to  have  cooled,  not  a  drunk- 
ard or  a  madman?  and  it  is  to  tiiis  view  that  the  third  ground  of  appeal 
excepts,  for  the  report  sliows  tiiat  whilst  the  intoxication,  if  found  to  be 
proved,  was  submitted  as  a  matter  fit  for  consideration,  upon  the  ques- 
tion whether  the  prisoner  acted  from  a  former  grudge  or  in  a  sudden 
heat  of  nt'W  i)rovocation,  it  was  declared  to  be  unlit  for  consideration 
in  deciding  whether  there  was  reasonable  time  for  cooling, 

A  i)()rtion  of  this  court  is  of  opinion  that  instructions  to  the  jiiry  ex- 
actly in  the  form  assumed  by  the  third  ground  would  have  been  correct ; 
and  that  the  prisoner  has  therefore, no  reason  to  complain  that  his  intox- 
ication was  permitted  to  enter  into  the  consideration  of  only  part  of  the 
case,  when  it  should  have  been  excluded  from  tho  whole.  Old  as  the 
common  law,  and,  of  necessity,  in  almost  all  civilized  nations,  is  the 
doctrine,  founded  upon  obvious  considerations,  that  drunkenness  shall 
be  no  excuse  for  crime.  The  text  of  Kuss.  on  Cr. '  contains  this  pass- 
age :  "  Tl'ough  voluntary  drunkenness  cannot  excuse  from  tho  commis- 
sion of  crii.ie,  yet  where,  as  upon  a  charge  of  murder,  tho  material 
question  is  whether  an  act  was  premeditated,  or  done  only  with  sudden 
heat  and  impulse,  the  fact  of  a  party  being  intoxicated  has  been  holden 
to  be  a  circumstance  to  be  taken  into  consideration."  Reference  is  made 
to  the  JMS.  case  of  Rex  v.  Grinclley,  before  IIolkoyd,  J.,  at  the 
Worcester  assizes  in  1811).  And  the  American  editor  has  added  a  refer- 
ence to  Pennnijlcania  v.  McFall.'^  In  the  case  of  Rex  v.  Carroll,'^  Jus- 
tice Park,  sitting  with  Justice  Littledalk  and  tho  recorder,  in  the 
Central  Criminal  Court,  read  the  case  decided  by  Justice  IIolkoyd, 
which  had  been  cited  to  them,  and  observed  :  — 

"  Highly  as  I  respect  that  late  excellent  judge  I  differ  from  him  and  my 
brother  Littledai.e  agrees  with  me.  He  once  acted  upon  that  case,  but 
afterwards  retracted  his  opinion,  and  there  is  no  doubt  that  that  case  is 
not  law.  I  think  that  there  would  be  no  safety  for  human  life  if  it  were 
to  be  considered  as  law."  The  authority  cited  by  Russell  is  thus  over- 
thrown. In  the  case  cited  by  the  American  editor,  INIcFall  being  in- 
dicted for  a  homicide,  committed  Avhilst  '.lO  was  drunk,  his  counsel 
contended  that  he  could  not  be  guilty  of  murder  in  the  fust  degree, 
which,  under  the  Pennsylvania  law,  is  premeditated,  because  by  his 
drunkenness  he  was  incapacitated  to  form  any  previous  purpose  of  mal- 


^  Ail.i.  257. 


"  7  C.  &  1*.  110;  .",.'  E.  C.  L.  R.  471. 


DFUNKM.VXKSS. 


725 


Till!  Casi's  Kevlcwcd. 


imstanccs, 
Idcniiijj;  or 
there  timi' 
)ta(lriink- 
of  appeal 
>iin(l  to  be 
I  the  quos- 
a  sudden 
isidoration 

0  jury  cx- 
n  correct ; 
his  intox- 
art  of  the 
>ld  as  the 
3ns,  is  the 
ness  siiall 
this  pass- 
e  comniis- 
e  material 
th  sodden 
en  holdcn 
•c  is  made 
.,  at  the 
d  a  rcfcr- 
oll,^  Jus- 
r,  in  tho 

lOLUOVD, 

n  and  my 
case,  but 
\t  case  is 
f  it  were 
nis  over- 
|)eing  in- 
counsel 
degree, 
R  by  his 
of  mal- 


ice, but  could  only  be  guilty  of  murder  in  the  second  degree  —  a  killing 
in  passion,  and  not  of  malice.  Addison,  pri'sidcnt  of  the  courts  in  the 
Fifth  Circuit,  held  that  "  drunkenness  does  not  incapacitate  n  man  from 
forming  a  premeditated  design  of  murder,  but  frequently  suggests  it ; 
that  a  drunk  man  may  certainly  bo  guilty  of  murder,  but  as  drunken- 
ness clouds  the  understanding  and  excites  passion,  it  may  be  evidence 
of  passion  only  and  of  want  of  malice  and  design."  This  was  left  to 
the  jury,  who  found  a  verdict  or  murder  in  the  first  degree,  and  the 
prisoner  was  hanged. 

Our  own  cases  of  State  v.  Toohey  *  and  State  v.  Ferguson,^  are 
strong  authorities  to  sustain  tho  liability  of  the  drunken  man  for  mur- 
ders committed  in  his  state  of  voluntary  madness.  It  is  a  doctrine  es- 
sential to  the  safety  of  society,  and  entirely  reconcilable  with  the 
ordinary  principles  of  punishment  administered  by  human  tribunals, 
when  the  consequences,  as  well  as  the  motives  of  acts,  must  be  regarded, 
and  the  punishment  of  two  offenders  bo  made  widely  to  differ,  because 
of  different  results  by  accident,  although  both  may  have  intended,  and, 
so  far  as  they  could  control  results,  actually  have  perpetrated  like  of- 
fences. 

In  the  case  of  Rex.  v.  Meakin,^  which  was  an  indictment  for  stabbing, 
with  intent  to  murder,  Baron  Ai.dekson,  at  the  Worcester  assizes,  in 
183G,  in  summing  up  said:  "It  is  my  duty  to  tell  you  that  the  pris- 
oner's being  intoxicated  does  not  alter  the  nature  of  the  offence.  If  a 
man  chooses  to  get  drunk,  it  is  his  own  voluntary  act ;  it  is  very  dif- 
ferent from  a  madness  which  is  not  caused  by  a'ly  act  of  his.  That 
voluntary  species  of  madness,  which  it  is  in  a  party's  power  to  abstain 
from,  he  must  answer  for.  However,  with  regard  to  intention,  drunk- 
enness may  perhaps  be  adverted  to,  according  to  the  nature  of  the  in- 
strument used.  If  the  man  uses  a  stick,  you  would  not  infer  a  mali- 
cious intent  so  strongly  against  him,  if  drunk,  when  he  made  an  intem- 
perate use  of  it,  as  you  would  if  he  had  used  a  different  kind  of 
weapon ;  but  when  a  dangerous  instrument  is  used,  which  if  used,  must 
produce  grievous  bodily  harm,  drunkenness  can  have  no  effect  on  the 
consideration  of  the  malicious  intent  of  the  party."  The  observations 
here  made,  as  to  the  influence  of  drunkenness  upon  the  question  of  in- 
tention, where  a  stick  or  weapon  not  dangerous,  has  been  used,  were 
wholly  extra-judicial,  the  instrument  proved  in  that  case  having  been 
a  deadly  one.     But  from  these  observations  it  may  be  collected,  that  at 


\  MS.,  2  Rice's  Dig.  106. 
*  2  UiU,  «19. 


»  7  C.  &  P.  297,  (32  E.  C.  L.  R.  614). 


72f; 


DIJl  NKKNXKSM. 


Sliili)  J'.  MfCiiiits. 


the  moiiu'iit  tliore  was  n  doubt  in  tlic  Hnron's  miiid  wlu-llicr,  in  tlie  ciisc 
of  what  limy  be  called  involuntary  boniicido,  wlu'n  death  Inis  ensued 
from  blows  without  a  legal  provociition,  but  the  want  of  intention  to  do 
werious  boilily  harm  may  bo  coUeet^-d  from  the  nature  of  the  instru- 
ment, and  the  uianner  of  its  use,  drunkenness  might  not  be  urged  as  an 
excuse  for  a  more  intemperate  use  of  the  instrument  than  wouUl  seem 
pioper  in  a  sober  man  ;  a  doctrine  which,  in  its  application,  would  proba- 
bly lead  to  most  dangerous  indulgcncies  of  brutal  feeling  excited  by 
licpior,  and  which  should  not  be  readily  admitted.    In  the  case  of  Hex.  v. 

John  Thomas,^  before  IJaron  1'akkk,  at  the assi;«es,  in  IH.')?,  upon 

an  iiulictment  for  malicious  stabbing,  the  Baron  used  the  following  lan- 
guage: "  1  Hujst  also  tell  you,  that  if  a  man  makes  himself  voluntarily 
drunk,  that  is  no  excuse  for  any  crime  he  may  conunit  whilst  ho  is  so ; 
he  must  take   the  consetiueiices  of  bis  own  voliuitary  act,   or  most 
crimes  would  otherwise  be  uni)unished.     But  drunkenness  may  be  taken 
into  consideration  in  cases  whore  what  the  law  deems  sultlcient  provo- 
cation  has  been  given,  because  the  question  is,  in  such  cases,  whether 
the  fatal  act  is  to  be  attributed  to  the  passion   of  anger  excited  by  the 
previous  provocation ;  and  that  passion  is  more  easily  excitable  in  a 
person  when  in  a  state  of  intoxication,  than  when  he  is  sober.     So  when 
the  question  is,  whether  words  liave  been  uttered  with  a  deliberate  pur- 
pose, or  are  merely  low  and  idle  expressions,  the  drunkenness  of  the 
person  uttering  them  is  proper  to  be  considered.     But  if  there  is  really 
a  previous  determination  to  resent  a  slight  affront  in  a  barbarous  man- 
ner, the  state  of  drimkenncss  in  which  the  prisoner  was,  ought  not  to  be 
regarded,  for  it  would  furnish  no  excuse."    This  doctrine  seems  to  me 
the   same  as  that  laid  down  in  Russell  ;2  if  by  "sudden   heat,"  as 
used  in  Russell,  be   understood  such   beat  as  the  law  notices,  heat  ex- 
cited  by  a  legal  provocation ;  and  to  the  doctrine  I  subscribe,  under- 
standing by  it  that  he  who  is  in  a  state  of  voluntary  intoxication  shall 
be  subject  to  the  same  rules   of  conduct,  and  the  same  legal  influences 
as  the  sober  man ;  but  that  where   a  provocation  has  been  received, 
which,  if  acted  on  instantly,  would  mitigate  the  offence  of  a  sober 
man,  and  the  question  in  the  case  of  a  drunken  man  is,  whether  that 
provocation  was  in  truth  acted  upon,  evidence  of  intoxication  may  be 
considered  in  deciding  that  question. 

The  law  infers  malice  against  the  drunkard  who,  in  his  frenzy,  shoots 
into  a  crowd  and  kills  he  knows  not  whom,  no  less  than  against  a  sober 
man  for  like  conduct.     And  it  would  be  jeopardizing  the  peace  and 


'  7  C.  *  P.  753  (32  E.  ('.  L.  R.  751). 


'p.  8. 


DIM'NKKNNKSS    NO    KXCfSi:    r«  MJ    CIMMi:. 


7i»7 


Notes. 


ill  the  CMso 
HIS  ensued 
itiou  to  do 
tlic  iiiHtni- 
•g»'(l  as  an 
ixikl  8ocm 
ijlilprobti- 
uxcitcd  by 
of  Hex.  V. 
8.'>7,  upon 
Dwing  laii- 
oluiitarily 

he  is  so ; 
,  or  most 
y  be  taken 
nt  jirovo- 
3,  whether 
led  by  the 
table  in  a 

►So  when 
crate  pur- 
ss  of  the 
c  Is  reall}' 
3ns  nian- 
.  not  to  be 
ms  to  me 
leat,"  as 

heat  ex- 
e,  under- 
tion  shall 
nfluences 
received, 

a  sober 
ther  that 
11  may  be 

y,  shoots 
t  a  sober 
eace  and 


safety  of  .socifly  to  ssiy  lliiit  he  who,  liy  half  a  d  t-n  nhisscs,  is  habit- 
ually ren(h>r(Ml  irrltalile  and  fierce,  shall  be  looked  upon  with  more  indul- 
ji;('iu'o  when  he  lias  barl)arously  n-Hcnted  a  trivial  affront,  boeauso  he  had 
taken  the  cpianlity  of  liipior  requisite  tf)  make  him  a  sava^je  ;  or  tliat  he 
who  lias  never  been  known  to  fjrow  cool  after  a  transport  of  wrath  ex- 
cited when  he  wjis  in  a  state  of  intoxication,  unlil  sleep  had  sobered 
liim,  shall,  in  the  application  of  the  circumstances  to  determine  what 
time  for  coolinj^  is  reaHonal)le,  be  allowed  a  lonjjer  time,  because,  on 
the  occasion  in  question,  he  had  volun'.arily  encountered  the  hazard 
which  drinking  was  known  to  bring  upon  himself  and  all  around  him. 

(Omitting  a  ruling  on  other  grounds.) 

KiciiAUDsoN,  O'Neall,  Kvans  and  Bltleu,  J  J.,  concurred. 


NOTES. 

§  60.  Drunkenness  no  Excuse  tor  Crime. — It  isa  wcll-settlod  rulcof  tlio  com- 
mon law  that  voluntary  driuikeuuess  does  not  excuse  a  crime  committed  wliiie 
iu  that  statu. ' 


'  State  f.  Konth,  sn  N.  C.  626  (ISfiO) ;  Corn- 
well  r.  state,  Mart.  &  V.  117(1827);  Stale  t>. 
McCants,  1  .Spears,  3',t3  (1H43) ;  U.  S.  v.  Mc- 
(iliie,  1  CuTt.  (".  C.  1  (1X51);  IT.  S.  v.  Drew, 
Italdw.  28  (182S);  Ilosweli  v.  Com.,  20Gratt. 
1^00  (1871);  State  r.  Mullen,  It  La.  Ann.  590 
(18.')9) :  Rafferly  t'.  People,  (!6  111.  118  (1872) ; 
Mclvenzie  v.  State,  23  Ark.  33,5  (1870) ;  People 
V.  Williams,  43  Cal.  344  (1872) ;  State  v.  Hur- 
ley, 1  IIouBt.  Cr.  Cas.  28  (18r)8) ;  Mercer  v. 
State,  17  (ja.  146  (1854) ;  Shannalian  v.  Com., 
8  Ihisli,4G3;  8  Am.  Uep.  465  (1871);  Schaller 
r.  State,  14  M».  502  (1851);  State  v.  Harlow, 
21  Mo.  446  (laV));  People  v.  Cummins,  47 
Mich.  334  (1882) ;  State  v.  Grear,  28  Minn. 
42G  (1881) ;  Kelly  v.  State,  3  S.  &  M.  518  (1844) ; 
Kenny  v.  People,  27  How.  Pr.  202 ;  18  Abb.  Pr. 
9 ; 31  N. Y.  330 ;  O'Brien  v.  People,  48  Barb.  274 
(1867) ;  36  N.  Y.  280 ;  People  v.  Itogers,  18 N. Y.  9 
(l&'iS) ;  People  v.  Garbutt,  17  Mich.  9  (1808) ; 
Goldenv.  State, 25Ga.  627;  State  v.  Paulk, 18  S. 
C.  314  (1882);  State  t-.  Grear,  29  Minn.  221 
(1882) ;  Scott w.  State,  12 Tex.  (App.)  31  (1882). 
InKenny  v. People,  18  Abb.  Pr.  91  ;27  How.  Pr. 
202  (1SG3).  It  was  laid  down  that  intoxica- 
tion was  no  excuse  for  crime.  In  the  Court 
of  Appeals  this  ruling  was  afllrmed.  Kenny 
V.  People,  31 N.  Y.  330  (1865).    The  same  was 


■ub9C<|ucntly  held  in  People  v.  O'ConncIl,  G2 
How.  Pr.  4;i6  (18S1) ;  aflirmiid  by  the  Court  oJ 
Appeals  in  the  next  year,  O'Connell  v. 
Peni)lc,  87  N.  Y.  377  (1882) ;  People  f.  Uogcrs, 
18  N.  Y.  9  (18.'58) ;  reversed  in  the  decision  o( 
the  Su))rcnio  Cniirt  in  the  same  case,  in 
which  it  had  been  held  that  the  trial  judge 
had  erred  in  not  instrnuling  on  the  defence 
of  drunkenness,  as  requested  by  the  prison- 
er's counsel.  Ueported  as  Kogcrs  v.  People, 
3  Park.  6.',2  (1858).  That  drunkenness  may  re- 
duce a  killing  from  murder  to  manslaughter, 
was  held  in  Kentucky  in  Itlimm  r.  Com.,  7 
IJush.  325  (1870),  and  Smith  f.  Com.,  1  Puv. 
224  (1864) ;  but  these  case*  were  partially 
overruled  in  the  latter  case  of  Shannahan 
r.  Com.,  8  Bush,  464.  In  Tyra  v.  Com.,  2  Mete. 
(Ky.)  1(1859),  it  is  said:  "The  instruction 
given  by  the  court  to  the  effect  that  drunk- 
enness, or  the  temporary  insanity  occa- 
sioned by  the  act  of  the  defendant  in  getting 
drunk, constituted  no  justiflcation  or  excuse 
for  the  commission  of  crime,  was,  we  think, 
entirely  unobjectionable,  in  view  of  the 
facts  of  the  case.  Such  is  the  well  settled 
principle  upon  this  subject.  Any  other  doc- 
trine would  result  inconsequences  fatal  to 
tlie  peace  and  safety  of  society." 


728 


DRUNKENNESS. 


Notes. 


In  liespublica  v.  Weidle  it  was  said:  "  Drunkenness  is  no  justifloation  or  ex- 
cuse for  connnitting  tlic  offence  (treason);  to  allow  It  as  such  would  open  tlie 
door  for  tlio  practice  of  the  {greatest  enorniities  with  impunity."  '  In  U.  S.  v. 
Claupool'^  it  wa:i  said:  "  DrunkeuucsH  is  no  excuse  for  crime,  and  in  tlie  in- 
stances in  whicli  it  is  resorted  to  to  blunt  moral  respousibility  it  heightens  the 
culpability  of  the  offender*' 

In  Co»i.  V.  7/ai-nt  was  said:  "  Intoxication  is  rather  an  aggravation  of  than 
an  excuse  for  crime.  If  recognized  as  a  defi-nce,  all  men  intending  to  perpe- 
trate crime  could  readily  shield  themselves  from  punishment  by  simply  becoming 
inebriated.  When  reason  is  destroyed,  when  a  man  has  not  the  jjower  to  dis- 
tinguish right  from  wrong,  or  lacks  the  power  to  adhere  to  the  right  and  to  aij- 
stain  from  wrong,  he  is  not  accountable  to  the  criminal  laws." '  In  Comviomcealth 
V.  Dourjhertij,  the  court  said :  "  Previously  to  saying  anything  on  the  general  facts 
or  on  the  law,  suffer  ns  to  remark  that  the  intoxication  of  the  prisoner  at  the 
time  he  killed  the  deceased  and  the  subseciuent  expressions  of  sorrow  for  his 
conduct  are  not,  in  the  eye  of  the  law,  the  slightest  excuse  or  palliation  of  his 
crime.  It  would  seem,  indeed,  as  If  all  ages  and  nations  concurred  in  the  sen- 
timent. It  is  recorded  in  history  that  Alexander  the  Great  killed  his  friend 
Clitus  in  a  lit  of  passion  and  drunkenness,  yet  Alexander  has  always  Ken  sup- 
posed guilty  of  murder.  Ilstorians,  therefore,  when  they  relate  this  event, 
unifonnly  speak  of  it  as  the  murder  of  Clitus  by  Alexander  the  Great."* 
In  U.  S.  v.  Forbes,^  it  was  said  by  Randall,  J.,  in  charging  tlie  jury :  ''The 
artificial  voluntarily  contracted  and  temporary  madness  produced  by  drunken- 
ness is  rather  an  aggravation  of  tlian  an  apology  for  a  crime  committed  during 
that  state.  A  drunkard  is  a  voluntary  demon,  and  his  intoxication  gives  him  no 
privilege.  If,  however,  an  habitual  or  fixed  frenzy  is  produced  by  this  practice, 
though  such  madness  is  contracted  by  the  vice  and  will  of  the  party,  it  places 
the  man  in  the  same  condition  as  if  it  were  contracted  at  first  involuntarily.  The 
wisdom  of  the  law  in  refusing  to  recognize  drunkenness  as  an  excuse  for  crime  is 
plain;  nothing  is  more  easily  counterfeited,  no  state  so  irregular  in  itsoperation." 
In  Com.  V.  J/atc/itns,* the  chief  justice  instructed  the  jury  thus:  "The  rule  of 
law  is  that  although  the  use  of  intoxicating  liquors  does  to  some  extent  blind  the 
reason,  and  exasperate  the  passions,  yet  as  a  man  voluntarily  brings  it  upon 
himself  he  cannot  use  it  as  an  excuse  or  justification  or  extenuation  of  crime. 
A  man  because  he  is  intoxicated  is  not  deprived  of  any  legal  advantage  or  pro- 
tection; but  he  cannot  avail  himself  of  his  intoxication  to  exempt  him  from  any 
legal  responsibility  which  would  attach  to  him  if  sober."  In  State  v.  Boicen, 
it  was  held  that  the  trial  court  liaving  left  the  qucticn  to  the  jury  on  all  the  evi- 
dence in  the  case,  the  appellate  court  will  not,  after  conviction  of  murder  in  the 
first  degree,  iJu  aside  the  verdict  and  grant  a  new  trial,  because  the  jury  were 
not  instructed  that  if  they  believed  that  at  the  time  of  committing  the  a^^  the 
prisoner  was  so  much  intoxicated  as  to  produce  a  state  of  mind  unfavorable  to 
deliberation  or  premeditation,  it  would  reduce  the  grade  of  the  offence  from  murder 


1  Rcspublira  V.  Weidle,  2  Dall.  88  (1781). 

'  UFeil.  Hep.  127  M8S2). 

3  Com.  V.  Hart,  2  Brcwst.  646  (1868). 


(1807). 

6   Crabbe,  559  (1845) 
«  3  Gray,  463  (1865). 


Dougherty,    1    Browne   X3", 


DRUNKENNESS    NO    EXCUSE. 


729 


In  People  V.  Fuller;  Marshall  v.  State;  Estes  v.  State. 


in  the  first  to  murder  in  the  second  degree  under  the  statute.'  InPcoplev.  Fuller,^ 
tried  in  New  York  in  182;',,  the  prisoner  was  iudieted  for  the  murder  of  .Vudrew  Fish. 
On  the  trial  «'  the  counsel  for  the  prisoner  offered  to  prove  tliatlie  was  intoxicated 
at  the  time  of  the  commission  of  the  offence.  The  court  decided  that  the  evi- 
dence was  improper;  that  intoxication  was  a  voluntary  deprivation  of  reason; 
that  if  a  person  under  the  influence  of  licpior  docs  an  act  which  would  l)o  u  crime 
if  he  wt;rc  sober,  the  intoxication  is  an  aji^ravation  of  the  offence,  and  cannot  be 
given  in  evideiK^e  in  mitigation  of  the  guilt  of  the  pri.soncr."  In  Marshall  v. 
&"tate,^  the  prisoner  had  shot  the  decea.scd  wiiiiout  provocation.  Tiie  prisoner 
had  been  driukiug  during  the  day  (the  homicide  took  place  about  eleven  at  night) 
and  in  the  afternoon  Avas  in  a  long  drunken  sleep.  After  getting  up  from  that 
the  evidence  indicated  that  he  was  not  deeply  intoxicated.  Shortly  before  the 
homicide  he  appeared  to  be  drinking,  but  was  not  very  drunk.  He  outran  a  per- 
son who  pursued  him,  and  his  running  was  pretty  straight.  lie  was  convicted 
of  murder.  The  Supreme  Court  in  allirming  the  judgment  said:  "  The  degree 
of  drunkenness  shown  by  the  evidence  as  existing  at  the  time  of  the  homicide 
was  not  great.  But  had  it  been  the  utmost  possible  degree  c<msistent  with  the 
power  of  discharging  a  pistol,  the  law  of  the  transaction  would  have  been  the 
.same.  A  man  who  can  voluntarily  shoot  is  capable  of  malice  unless  he  can  plead 
some  infl:  niity  besides  drunicenness.  To  be  too  drunk  to  form  the  intent  to  kill, 
he  must  be  too  drunk  to  form  the  intent  to  shoot.  An  intent  to  kill  is  the  only 
necessary  ingredient  of  legal  malice  when  neither  justillcatiou  nor  adequate 
provocation  is  made  to  appear.  Moreover,  the  presumption  that  a  man  intends 
not  only  the  deed  he  docs,  but  the  natural  and  proximate  consequences  of  the  deed 
is,  in  criminal  law,  as  applicable  to  the  drunk  man  as  to  the  sober  man."  In  Estes 
State,*  Jacksos,  J.,  said:  " Tlie  defendant  shot  Williams  without  the  slightest 
provocation,  and  whilst  he  was  drinking  considerably,  he  was  sober  enough  to 
intend  to  shoot,  and  he  did  shoot  and  hit  him  in  the  face,  and  the  ball  is  lodged 
there,  just  under  the  brain,  inflicting  a  permanent  and  dangerous  wound  —  such 
»  wound  that  excitement  will  endanger  him  for  life,  in  the  opinion  of  the 
physicians  who  exa-  'ned  him.  lie  was  sober  enough  too  to  get  off  rapidly  from 
the  place  of  the  shooting,  nor  is  there  any  motive  suggested  by  the  proof  to 
rebut  tlie  idea  of  a  malicious  intent,  a  careless  disregard  of  human  life.  *  *  * 
For  myself  I  think  that  a  man  cannot  voluntarily  make  himself  so  drunk,  as  if 
he  shoot  and  kill  another  without  provocation  the  crime  will  be  graded  or 
reduced  from  murder  to  manslaughter;  or  if  he  s'.ioot  at  another  without  provo- 
cation, the  crime  can  be  made  by  drunkenness,  less  than  assrult  with  intent  to 
murder.  The  statute  is  plain  that  voluntary  drunkenness  shall  be  no 
excuse,  and  if  it  be  made  to  lower  or  grade  the  crime,  to  lessen  it  in  any  case 
whatever,  it  is  thereby  made  some  excuse,  and  that  pro  tanto  fritters  away  the 
solidity  and  power  of  the  statute,  *  *  *  My  brethren  agree  with  me  that 
drunkenness  is  no  excuse  for  crime,  and  that  the  court  did  not  err  in  so 
charging,  and  that  the  court  was  right  in  this  case  in  refusing  the  request  asked 


'  State 
(1859). 

2  2  Park.  16  (1823; 


r.   Bowen,  1  Hoast.  Cr.   Cas.  91 


'  59  Ga.  154    1877). 
<  66  Ga.  30  (1875.) 


730 


DRUNKKN.NESS. 


Noti'i 


for;  1  but  wo  did  not  consult  and  auree  as  to  the  effect  of  voluntary  drunken - 
ness  upon  intention  in  any  case,  or  its  effect  in  redncini?  or  palliating  crime 
under  our  statute  in  any  case."  In  ,State  v.  Turner,'  which  was  tried  in  Ohio  in 
isai,  Wkujiit,  J.,  in  cliarLtin^  the  jury  said :  "  Much  has  been  said  to  you  about 
the  druulcenness  of  the  i)risouer  as  conducing  to  show  tliat  he  was  of  unsound 
mind.  No  reliance  can  be  placed  \ipon  drunkenness,  as  establishing  the  insanity 
of  a  person  whicli  excuses  liini  from  accountability  for  crime.  The  habit  of 
intoxication  is  highly  immoral  and  vicious,  tending  to  tlie  destruction  of  the 
beat  interests  of  society  —  tlie  severance  of  the  dearest  relations  of  life.  He 
who  takes  an  inUJxicating  draught  voluntarily  makes  lumself  mad,  and  the  hi*,., 
by  reason  of  such  madness  will  not  excuse  him  from  responsibility  for  crinio;: 
committed  under  its  inlluence.  If  it  were  otherwise,  the  most  hardened  criminal 
would  escape  punishment,  and  the  corrupt  and  protligate  and  revengeful  would 
only  have  to  intoxicate  themselves  to  be  exonerated  from  liability  for  crime,  and 
to  acquire  the  right  to  connnit  any  act,  however  shocking  and  horrid,  with 
impunity.  In  our  opinion  tlie  law  does  not  afford  to  ])ad  men  such  protection." 
In  State  v.  Bullock,^  on  an  Indictment  for  assault  witli  intent  to  kill,  the  trial 
judge  was  re(iuested  to  ciiarge  that  although  drunkenness  did  not  incapacitate  u 
man  from  forming  ai)renu'ditated  design  of  murder,  yet  as  drunkenness  clouds 
the  understanding,  and  excites  passion  it  might  be  evidence  of  passion  only, 
and  of  11  want  of  malice  and  design.  The  refusal  to  so  charge  was  upheld  by 
the  Supreme  Court.  "The  rule,"  said  Chii.ton,  J.,  "that  drunkenness  shall 
not  excuse  or  even  palliate  crime,  has  not,  so  far  as  we  are  advised,  been 
departed  from.  It  is  insisted  by  the  prisoner's  counsel,  that  although  drunken- 
ness does  not  excuse  or  justify  the  offence,  yet  it  may  be  evidence  of  passion 
only,  and  want  of  malice.  It  is  certainly  true  that  there  must  be  malice,  either 
express  or  implied,  to  constitute  the  offence  charged  iu  the  indictment,  and  any 
circumstances  calculated  to  disprove  its  existence  was  proper  to  be  considered 
by  the  jury.  Malice  may  be  inferred  from  the  deadly  character  of  the  weapon 
used  in  the  conunission  of  the  act.  Would  the  legal  presumption  deducible 
from  the  use  of  such  weapon,  be  rebutted  by  the  fact  that  the  party  was  intoxi- 
cated? Suppose  the  prisoner  in  a  state  of  intoxication,  with  a  large  knife,  such 
as  was  calculated  to  produce  death,  had  without  provocation  assaulted  and  slain 
his  victim,  would  it  at  common  law  liavc  been  a  sutTlcient  plea  to  an  indictment 
for  murder,  that  lie  was  drunk?  If  so,  then  drunkenness  would  excuse  the 
crime  of  murder.  But  we  have  seen  that  it  is  no  excuse  lorcrime."  The  judge  then 
goes  on  to  distinguishsuch  cascshs Pcnnsijlvania  v.  McFall,*  and  Swan  v.  State, ^ 
from  tlie  one  at  bar,  on  the  ground  that  in  those  it  was  important  to  ascertain  of 
what  degree  of  murder  the  prisoner  was  guilty,  and  concludes:  "The  mental 
state  required  by  the  statute  to  constitute  the  crime  was  one  of  deliberation  and 


1  Which  was  "  that  the  jury  may  take 
into  consideratum  the  fad  of  (lufunilant'a 
fJruiikcnnoss  to  irraile  tlie  offenco,  ami  may 
look  to  the  fact  in  dotormining  tlie  intent, 
and  that  if  the  jury  sliould  And  that  he  was 
not  conscious  of  what  he  was  doine,  the  jury 
might  take  that  fact  into  consideration,  in 
determining  whether    he    intended,   with 


malice  aforethought,  to  kill  at  the  time  be 
shot." 

a  Wright,  20  (1831);  and  sec  State  v. 
Tliompson,  WriKlit,  022  (1831). 

3  13  Ala.  413  (1848). 

«  Add.  2.''.7. 

'•>  4  Humph.  136. 


DRUXKEN'NESS    NO   EXCUSE. 


7-M 


Tidwcll  V.  Stato:   f'ross  r.  State. 


premeditation,  hence  drunkenness  which  excluded  such  condition  of  tlie  mind  as 
was  necessary  to  constitute  the  statutory  offence  was  allowed  to  he  considered 
by  the  jury  not  as  an  excuse  for  the  crime,  but  to  show  it  had  not  been  com- 
mitted. ♦  *  *  Whether  the  offence  committed  was  the  result  of  a  precon- 
ceived determination  to  kill  and  murder  or  was  induced  by  the  voluntary 
intoxication  of  the  prisoner,  lie  is  nevertheless  guilty,  and  must  suffer  the 
penalty  denounced  by  the  statute  against  .such  as  violate  its  provisions." 

In  Tidioell  v,  State,^  tlie  following;  Instruction  was  asked  and  refused:  "If  the 
jury  though  believing  beyond  a  reasonable  doubt  that  one  or  more  of  the  defend- 
ants killed  said  Ford,  still  believe  from  the  evidence  that  it  is  probable  that  the 
parties  doing  the  killing  were  so  drunk  as  to  be  incapable  of  forming  an  intent  or 
design  of  committing  murder,  then  the  defendant  must  be  acciuitted."  On  appeal 
the  ruling  was  sustained.  "Drunkenness  of  itself,"  said  the  Supreme  Court, 
"  when  voluntarily  produced  does  not  excuse  oi  palliate  an  offence.  In  cases  of 
homicide  it  may  be  material  in  determining  the  degree  — whether  it  is  murder  in 
the  first  or  murder  in  the  .second  degree.  '  Wilfulness,  premeditation  and  deli!)era- 
tion  must  concur  with  malice  to  constitute  murder  in  the  flr.st  degree.  These  in- 
volve an  inquiry  into  the  state  of  mind  of  the  accused  at  the  time  of  the  killing- 
and  of  consequence  it  is  proper  to  inquire  whether  he  was  then  drunk  or  sober; 
and  if  drunk  whether  the  intoxication  rendered  him  incapable  of  premeditation  and 
deliberation.  Mere  drunkenness,  a  mere  temporary  tit  of  intoxication,  cannot 
excu.se  a  liomicide.  The  vice  of  the  charge  requested,  in  reference  to  the  drunk- 
enness, is  apparent.  If  given,  it  would  have  authorized  an  acquittal,  though  the 
jury  may  have  been  satisfied  the  homicide  was  malicious  and  voluntary." 

In  Cross  v.  State,^  the  prisoner  was  indicted  for  assault  with  intent  to  murder. 
The  trial  judge  said  to  the  jury:  ".\.s  you  have  heard  stated  and  read  from  books, 
drunkenness  is  no  excuse  for  crime."  On  appeal  it  was  said  by  the  Supreme 
Court:  "  This  certainly  has  been  very  often  said  by  the  most  learned  jurists, and 
has  received  the  sanction  of  the  highest  and  most  learned  courts.  But  it  is  urged 
by  the  learno.i  counsel  for  the  plaintiff  in  error,  that  although  drunkenness  is  no 
excuse  for  crime,  the  fact  that  the  accused  was  in  a  state  of  intoxication  at  the 
time  may  be  considered  by  the  jury  in  determining  whether  the  accused  intended 
to  commit  the  crime  with  which  he  is  charged,  and  that  this  is  especially  so 
where  he  is  charged  with  an  assault  with  intent  to  murder  or  commit  some  other 
felony.  For  this  puri)ose  most  courts  have  held  that  the  fact  that  the  accused 
was  drunk  at  the  time  of  the  connnission  of  the  act  with  which  he  is  charged  is 
admissible  evidence.  This  rule  is  not  inconsistent  with  the  one  stated  by  the 
court,  'that  drunkenness  is  no  excuse  for  crime.'  The  evidence  when  admitted 
is  not  admitted  as  an  excuse  for  the  crime  but  as  tending  to  show  that  the  accused 
did  not  commit  the  crime  charged.  In  this  case  the  court  permitted  the  accused 
to  show  that  he  had  been  drinking  intoxicating  liquors  at  the  time  and  was  to 
some  extent  intoxicated.  The  learned  judge  also  charged  the  jury  that  if  they 
believed  the  accused  Avas  frenzied  from  the  use  of  liepior,  so  that  he  was  incapa- 
ble of  knowing  what  he  was  doing,  they  would  be  justified  in  acquitting  him. 
'  You  are  to  take  all  the  circumstances  together  and  see  whether  he  has  acted 
with  deliberation.'    If  the  counsel  desired  any  more  definite  instructions  as  to 


'  70  Ala.  33(1881). 


»  65  Wis.  261  (1882). 


732 


DRUNKENNESS. 


Notes. 


what  force  should  be  given  to  the  fact  of  the  drunkenness  of  the  defendant  at 
the  time  of  tlie  sliooting,  ho  should  have  called  the  attention  of  the  court  to  it  l)y 
a  request  to  instruct  more  fully  and  particularly  upon  the  subject.  The  instruc- 
tion given  sul)initted  the  fact  of  the  drunkenness  of  the  defendant  in  general 
•  terms  to  the  jury  as  a  fact  which  they  might  consider  in  determining  the  ques- 
tion of  the  coolness  and  deliberation  of  the  defendant's  acts;  and  it  cannot  be 
allegeil  as  error  that  he  did  not  instruct  them  more  at  length  on  the  subject,  unless 
he  was  requested  so  to  do." 

(rt)  Intoxication  no  Excuse  —  Friery  v.  People.  —  In  Friary  v.  People,^  the 
prisoner  was  tried  for  the  murder  of  one  Henry  Lazarus  while  drunk.  The 
following  charge  of  the  trial  judge  on  the  subject  was  approved  on  appeal.  "  In 
regard  to  intoxication  I  shall  not  attempt  to  lay  down  any  new  law  or  state  any 
views  of  my  own,  because  it  is  settled  in  this  State,  as  it  is  in  Pennsylvania.  I 
shall  content  myself  by  reading  you  the  law  as  stated  by  the  courts.  In  the  case 
of  People  V.  Ro'jcr.i,'  it  was  said:  'We  must  lay  out  of  view,  as  inipplicablo, 
the  case  of  a  person  who  had  become  insensible  from  intoxication,  and  who  was 
performing  an  act  unaccompanied  by  volition.  It  is  not  claimed  in  this  case 
that  the  i)risoner  at  the  l)ar  was  a  person  who  had  become  insensible  from  intox- 
ication, and  who  was  performing  an  act  unaccompanied  by  volition ;  therefore 
you  must  look  at  the  prisoner,  not  as  a  man  in  that  state,  but  merely  as  one 
who  was  more  or  less  under  the  inihicnee  of  li(iuor.  The  degree  of  intoxication 
you  may  determine  in  your  own  mind,  if  you  can.  If  you  consider  him  as  a  man 
who  was  intoxicated,  but  yet  sensible  and  able  to  do  an  act  in  accordance  with 
his  will,  the  huv  is  very  plain.  The  courts  have  laid  down  this  rule.  No  rule  is 
more  familiar  chan  that  intoxication  is  never  an  excuse  for  crime.  There  is  no 
judge  who  has  been  engaged  in  the  ailministration  of  criminal  law  who  has  not  had 
occasion  to  assert  it.  Even  where  intent  is  a  necessary  ingredient  in  the  crime 
charged,  so  long  as  the  offender  is  capable  of  conceiving  a  tlesign,  he  will  be 
presumed,  in  the  absence  of  proof  to  the  contrar, ,  to  have  intended  the  natural 
consequences  of  his  own  act.  Thus,  if  a  man,  without  provocation,  shoot  an- 
other, or  cleave  him  down  with  an  axe,  no  degree  of  intoxication,  short  of  that 
which  shows  that  he  was  at  the  time  utterly  incapable  of  acting  from  motive, 
will  shield  him  from  conviction.  In  this  case  the  defendant  had  struck  the  blow 
which  caused  the  death,  and  to  this  act  the  law,  without  further  proof,  would 
impute  guilty  design.  If  the  perpetrator  would  escape  the  consequences  of  the 
act  thus  committed,  it  was  incumbent  on  him  to  show  either  that  he  was  incapa- 
ble of  entertaining  such  a  purpose,  or  that  the  act  was  committed  under  provo- 
cation. The  adjudications  upon  the  question,  both  in  England  and  this  country, 
are  very  numerous,  and  are  characterized  by  a  singular  uniformity  of  language 
and  doctrine.  They  all  agree  that,  where  the  killing  is  unequivocal  and  unpro- 
voked, the  fact  that  it  was  committed  while  the  perpetrator  was  intoxicated,  can 
not  be  allowed  to  affect  the  legal  character  of  the  crime.'  There  is  nothing  in 
our  statute,  gentlemen,  which  gives  us  reason  to  say  that  the  Legislature  in- 
tended to  be  understood  as  altering  the  rule  laid  down  by  the  court  in  the  case 
of  People  V.  Sogers:  nothing  to  lead  us  to  believe  that  the  Legislature  meant 


<  M  Barb.  319  (1865) ;  2  Keyes,  434  (1866). 


«  18  N.  Y.  9. 


i 


INTOXICATION'    NO    EXCUSE. 


733 


People  r.  Robinson. 


to  say  that,  because  a  man  was  intoxicated  when  he  (losifinctlly  took  the  life  of 
anotlier,  his  crime  was  to  l)e  redueeil  to  nuirder  in  tlie  second  dejjcrt'e.  In  the 
recent  case  in  Pennsylvania,  the  same  doctrine  is  snhstantially  laid  down,  where 
the  court  says:  'No  one  pretends  that  intoxication  is  of  itself  an  excuse  or 
palliation  of  a  crime.  If  it  Avcre,  all  crimes  would,  in  a  jrrcat  measure,  depend 
for  their  criminality  on  the  pleasure  of  their  jjcrpetrators,  since  they  may  pass 
into  that  state  when  thoy  will.  IJut  it  is  ar;^ued  that,  because  intoxication  pro- 
duces u  state  of  mind  that  is  excited  by  provocation,  therefore  the  crimes  com- 
mitted under  the  influence  of  such  intoxication  and  provocation  are  less  criminal 
than  when  committed  in  a  state  of  sobriety  under  the  same  provocation.  We  are 
very  sure  that  no  statute  will  over  announce  such  a  rule,  and  we  are  not  author- 
ized to  ainiounce  it  in  interpreting  the  statute.'  The  courts  allow  evidence  of 
intoxication  to  be  given  to  the  jury,  and  the  reason  is  very  Avell  stated  by  the 
court  in  case  of  the  People  v.  Itogcrs,  and  has  been  very  well  stated  by  the 
counsel  here  to-day.  It  is  proper  for  the  cf)nsideratiou  of  tlie  jury  in  several 
aspects:  First,  as  bearing  upon  the  question  of  intent.  A  man  may  be  so  drunk 
as  to  be  incapable  of  forming  any  intent.  That  may  be  the  case.  What  would  be 
the  law  in  such  a  case  is  unnecessary  to  discuss  any  further  than  1  have  done. 
Evidence  in  regard  u>  intoxication  is  admitted  for  the  purpose  of  giving  the  jury 
an  opportunity  to  say  how  much  weight  is  to  be  attached  to  expressions  made 
immediately  before  and  after  the  occurrence.  The  evidence  of  this  man's  intox- 
ication is  material,  in  determining  what  weight  or  importance  is  to  be  attached 
to  the  act  of  sticking  the  knife  in  the  counter  and  the  declaration  accompanying  it, 
or  the  expression  used  in  the  sleigh, '  the  man  is  dead  anyhow,'  or  to  the  ex])ri'sslon 
used  by  him,  '  I  will  dance  at  the  wake.'  Such  expressions  would  have  more 
force  with  the  jury  if  made  by  a  sober  than  by  an  intoxicated  man.  Courts  allow 
such  evidence  to  come  in  and  to  be  considered  by  a  jury;  but  although  they  allow 
it  to  be  considered,  they  declare  intoxication  is  no  excuse  for  crime,  unless  it 
exists  in  the  degree  before  mentioned.  JS'ow,  gentlemen,  among  the  various 
propositions  which  have  been  submitted  by  the  counsel  for  the  prisoner,  I  find 
one  or  more  to  this  effect,  — that  to  convict  the  prisoner  of  murder  in  the  first 
degree,  it  is  necessary  for  tlie  prosecution  to  show  allirmatively,  beyond  reason- 
able doubt,  that  the  prisoner  had  an  intent  to  kill  the  deceased.  Of  course  that 
is  so,  and  I  have  so  charged.  It  must  be  shown  beyond  a  reasonable  doulit  that 
he  intended  to  kill,  but  if  the  intention  exists  a  moment  before  flie  i)l()w  is  struck, 
as  I  have  already  told  j'ou,  it  is  enough.  The  other  proposition,  '  that  the  prose- 
cution must  afllrmatlvely  prove  that  the  prisoner's  nund  was  in  a  condition  to 
form  the  intent,'  is  involved  in  the  geni'rai  propositions  which  I  have  snl)mitted 
to  you.  The  other  propositions  in  regard  to  intoxication,  and  in  regard  to  the 
purpo.se  for  which  evidence  of  intoxication  is  allowed  to  go  the  jury,  also  in 
regard  to  the  presumptions  of  the  law,  and  the  general  proposition  that  the  pris- 
oner is  entitled  to  every  reasonable  doubt,  I  have  already  charged." 

(b)  Drunkenness  —  Homicide  —  Insanity  —  People  v.  Robinson  —  In  the 
Trial  Court.  —  In  Peoi^e  v.  Jiubinson,^  the  prisoner,  Henrietta  Kobinson,  was 
charged  with  murder  by  poisoning.     She  was  tried  in  the  Court  of  Oyer  and 


<  1  Park.  «M9  (1854). 


^ 


7M 


OltUXKENNES.s. 


Notes. 


'''.> 


Tonniner  for  KcnsscliU'r  County,  New  York,  iui<l  tlie  judixe  ehurnod  the  jury  us 
follows:  — 

♦'Timothy  Lanagan  died  on  the  25th  day  of  May,  1853;  he  died  of  poison; 
was  this  poison  administered  by  tlie  accused?  Tliis  is  the  first  question  whicii 
will  require  your  attention.  If  tiie  evidence  fails  to  satisfy  you  of  thi.s  fact,  your 
duty  will  here  terminate.  You  will  pronounce  your  verdict  of  acquittal  without 
reference  to  the  other  (|uestio!is  in  the  case.  But  I  Jiave  not  understood  tlie 
counsel  for  the  defence  as  contendlnijc  th,-  the  evidence  justilies  sucli  conclu- 
sion. The  accused  was  in  possession  of  the  article  wliich,  upon  post  mortem  ex- 
amination, was  found  in  the  stomach  of  Lanagan.  Some  ten  days  or  a  fortnight 
before  she  had  purchased  of  Mr.  Ostrom,  the  draggist,  two  ounces  of  arsenic. 
About  one  o'clock  on  the  day  of  the  death,  she  went  into  Lanagan's  house, 
where  she  found  the  family,  Lanagan,  his  wife,  and  Catharine  Lubee,  at  dinner. 
She  sat  down,  upon  invitation,  to  eat  an  egg  and  a  potato.  Soon  after  Lanagan 
left  the  table  and  went  into  tlie  grocery  in  the  front  room  of  the  house.  Tlie 
accused  then  proposed  to  Mrs.  I.iaiiagan  and  Miss  Lubee,  to  iise  the  expression 
of  tlie  witness  herself,  that  they  should  drink  beer  from  her.  They  at  first  de- 
clined, but  being  urged  they  at  length  consented.  She  then  proposed,  in  order 
to  make  the  beer  more  palatable,  to  put  sugar  in  it,  and  requested  Mrs.  Lanagan 
to  procure  it.  Mrs.  Lanagan,  yielding  to  her  request,  procured  from  the  grocery 
somo  line  white  sugar  in  a  saucer;  she  then  went  back  to  get  the  l)eer,  leaving 
the  accused  and  Miss  Lub'je  in  the  room.  When  she  returned  she  found  the 
accused  walking  the  room  with  the  saucer  of  sugar  in  her  hand,  and  she  also 
says  she  observed  that  she  held  in  her  thumb  and  ^nger  a  small  white  paper 
folded.  Two  glasses  Avere  provided  and  the  beer  poured  out.  There  was  not 
enough  to  fill  them.  The  accused  insisted  that  they  should  be  full.  Mrs.  Lana- 
gan returned  to  the  grocery  for  more  beer.  When  she  went  back  the  accused 
was  putting  the  sugar  into  the  glasses.  They  were  filled,  and  Mrs.  Lanagan  and 
.Miss  Lubee  sat  down  ao  the  table  to  drink.  Mrs.  Lanagan  says  she  observed 
upon  the  surface  of  the  beer  a  white  scum,  and  thinking  it  might  be  dust  that 
had  fallen  upon  the  sugar  while  standing  in  an  open  box  in  the  stoi'e,  she  took  a 
teaspoon  to  remove  it;  that  while  in  the  act  of  so  doing,  the  accused,  who  was 
staiiiling  by,  arrested  her  hand,  and  took  the  teaspoon  from  her,  saying  that  was 
the  best  part  of  it,  and  that  it  would  do  her  good.  At  that  moment  Mrs.  Lana- 
gan was  called  to  the  grocery  by  her  husband.  She  remained  there,  but  lier^ius- 
band  came,  and  he  and  Miss  Lubee  drank  the  beer,  lie  died  at  seven  o'clock 
the  same  evening,  and  Miss  Lubee  died  at  four  o'clock  the  next  morning. 

•«  This  branch  of  the  case  depends  entirely  upon  the  testimony  of  Mrs.  Lana- 
gan. TrL ill  the  nature  of  the  case  there  could  be  no  other  evidence.  Had  she 
imbibed  the  fattil  draught  instead  of  her  husband,  as  was  at  first  intended,  there 
would  have  been  no  one  left  to  detail  the  circumstances.  The  credibility  of 
Mrs.  Lanagan  has  not  been  questioned.  If  her  story  is  to  be  believed,  it  would 
seem  to  leave  no  room  for  doiit)t.  You  cannot  hesitate,  however  painful  it  may 
be,  to  come  to  the  conclusion  that  it  was  the  accused,  and  no  one  else,  who  ad- 
ministered the  arsenic  which  produced  the  death  of  Lanagan. 

"Assuming  that  your  mind  will  l)e  brought  to  this  conclusion,  I  proceeil  to  bring 
your  attention  to  another  important  inquiry  — an  inquiry  which,  from  its  very 
nature,  is  fur  more  difficult.    The  inquiry  is,  whether  at  the  time  she  committed. 


I'KUl'LK  V.  mmiSHos. 


735 


In  tlii^  Tiiul  Court. 


the  act,  ilw  accused  was  in  a  condition  to  render  her  lejially  responsit)lo  for 
crime?  —  and  tins  depends  upon  tiie  (piestion  wlicthcr,  at  tlie  tiuic,  slie  was  in  a 
state  of  mind  whicii  enabled  lier  to  know  tliut  wliat  slie  did  was  wrong.  If  at 
the  moment  of  min<ilin<;  that  cup  slie  knew  that  she  was  doing  wrong,  and  de- 
served to  be  punished  for  it,  then,  whatever  else  there  may  be  in  the  ease,  before  the 
law,  she  is  answerable  for  the  act  as  a  crime.  The  evidence  of  her  coniluct  be- 
fore and  after  is  of  no  importance,  except  as  it  reflects  light  upon  )ier  condition 
at  the  fatal  hour  when  siie  connnitted  the  deeil  for  which  she  is  now  before  you 
to  answer. 

"  It  seems  that  about  the  period  in  question,  the  accused  had  indulged  very 
freely  in  the  use  of  Intoxicating  drink.  Mr.  Ostrom  says  that  when  she  was  at 
his  store  on  Saturday  evening,  wliieh  must  liave  been  the  21st  of  May,  she  was 
quite  intoxicated.  Mr.  Urownell  savs  that  Avhen  she  came  to  his  ollice  in  the 
early  part  of  May,  he  thought  her  the  worse  for  liquor.  Mr.  Cox  says  she  fre- 
quently purch-'ised  li(|Uor  at  his  store,  sometimes  taking  it  there,  and  sometimes 
taking  it  home  with  her.  Mrs.  Lanagan  says  that,  early  in  the  morning  of  the 
25th  of  May,  she  came  to  the  grocery  and  procured  a  quari  of  beer  which  she 
took  liome  witli  her,  and  as  the  deceased  was  living  alone,  it  may  be  presumed 
that  she  applied  it  to  her  own  personal  use.  At  eight  o'clock  she  sent  old  Mr. 
Haley  to  borrow  $2  of  Mrs.  Lanagan,  and  before  he  left,  she  came  herself.  About 
eleven  o'clock  she  was  there  again.  It  is  not  proved  that  she  drank  then,  but 
she  went  into  the  room  back  of  the  grocery,  where  there  were  several  men,  and 
engaged  in  noisy,  boisterous  conversation.  Tlie  fact  tliat  she  was  found  in  such 
a  place,  and  in  such  company,  furnishes  some  ground  for  the  belief  that  she  was 
then  under  the  influence  of  lifiuor.  Mrs.  Lanagan  says  that,  perceiving  the  noise, 
she  went  into  the  room  and  told  her  to  go  home  —  that  it  was  no  place  for  her 
to  be  there  among  such  a  set  of  men.  At  one  o'clock  she  came  again,  and  then 
the  poison  was  mingled  with  the  beer.  Shortly  after  she  left,  she  sent  Haley  for 
Mrs.  Lanagan  to  come  to  her  house.  It  is  the  tlieory  of  the  prosecution  that, 
having  failed  in  procuring  Mrs.  Lanagan  to  drink  the  poison,  it  was  her  object 
to  get  her  over  to  her  house,  so  that  she  might  yet  execute  her  purpose.  But  of 
this,  of  course,  there  is  no  proof.  About  three  o'clock  she  was  at  the  grocery 
again,  and  asked  for  beer,  Mrs.  Lanagan  says  she  told  her  she  did  not  need 
any,  and  declined  to  let  her  have  it.  The  answer  and  the  conduct  of  Mrs.  Lana- 
gan at  this  time,  indicate  pretty  strongly,  I  t'link,  the  condition  in  which  she 
was  at  the  time;  or,  at  least,  what  Mrs.  l^anagan  thought  of  her  condition. 
While  there,  Lanagan  came  home  sick,  and  Miss  Lubce  had  already  taken  to  her 
bed. 

"  Upon  this  state  of  facts,  the  question  presents  itself  whether  at  the  time  she 
committed  the  fatal  deed,  the  accused  was  intoxicated?  That  she  was  greatly 
excited  there  is  no  I'eason  to  doubt.  This  is  sufficiently  evident  from  the  fact  of 
her  having  visited  the  grocery  so  frequently.  That  she  drank  freely  is,  I  think, 
also  evident.    Was  she,  then,  intoxicated? 

•'  It  is  my  duty  to  say  to  you,  gentlemen,  that  if  she  was  intoxicated,  even  to  such 
an  extent  that  she  was  unconscious  of  what  she  was  doing,  still  the  law  holds 
her  responsible  for  the  act.  It  is  true  to  constitute  the  crime  of  murder  there 
must  be  killing  of  a  human  being  with  a  premeditated  design  to  effect  death. 
But  this  design  need  not  be  proved.    Where  the  act  is  connnitted,  the  law  im- 


73G 


DRUNKENNESS. 


NoU's. 


pijtcs  llio  (Ifslyii.  It  proceeds  upon  tlic  sensible  principle  timt  a  man  may  rea- 
sonably be  presumed  to  intend  to  do  what  in  fact  he  does.  Thus,  if  amau  will 
draw  from  his  pocket  a  i)islol  and  deliberately  shoot  down  a  fellow-man,  the  law, 
without  further  proof,  adjudges  that  it  was  in  his  heart  to  kill  him.  If  ho  would 
excuse  himself  lie  must  show  afllrmatively  that  he  had  uo  such  guilty  purpose. 
Then,  and  then  only,  can  he  beexon .rated  from  guilt.  If  it  appear  that  by  the 
inscrutable  visitation  of  I'rovidence  tiie  faculties  of  his  nund  had  i)ecome  so  dis- 
ordered, that  lie  was  'lo  longer  capable  of  discriminating  between  rii^lit  and 
wrong  in  respect  to  the  act  he  has  committed,  then  tlie  law,  in  its  justice,  pro- 
nounces him  innocent  of  the  crime.  But  if  ills  derangement  is  voluntary;  if  his 
madness  be  self-invited,  the  law  will  not  hear  him  when  he  makes  his  intoxica- 
tion his  plea  to  excuse  him  from  puuisliment. 

"  If,  then,  the  accust'd  mingled  poison  in  the  beer  that  was  drank  by  Lanagan, 
the  law  charges  her  with  a  design  to  kill  him,  and  tliough  she  may  have  been 
excited  by  drink  at  the  time,  even  to  such  an  extent  as  not  to  know  what  she  was 
doing,  she  must  answer  for  the  consequences.  Her  self-inflicted  insanity  must 
not  be  allowed  to  avail  her  for  defence.  The  law  imputes  to  her  still  a  murder- 
er's intent. 

•'  But  it  is  urged,  in  behalf  of  the  defence,  that  the  accused  was  not  merely  in- 
toxicated; that  she  was  insane.  If  this  be  so  —  if  by  the  visitation  of  God  she 
was  bereft  of  reason  as  to  be  unconscious  of  the  character  of  the  act  she  was 
committing,  there  is  an  end  of  her  accountability.  But  before  you  can  allow 
this  ground  of  defence  to  prevail,  you  must  be  satisfied  of  its  existence  by  atllrra- 
ative  proof.  Every  person  is  presumed  to  be  sane;  when  the  contrary  is 
asserted  it  must  bo  proved.  The  presumption  of  sanity  nmst  be  overcome  by 
satisfactory  countervailing  evidence. 

"  Upon  this  branch  of  the  case  it  is  your  duty  to  examine  the  facts  in  the  case 
with  the  most  diligent  care,  and  here  the  question  of  motive  may  well  be  consid- 
ered. It  has  been  urged  by  the  counsel  lor  the  defence  that  there  could  have 
been  no  possible  motive  for  destroying  the  lives  of  Lanaganand  Miss  Lubee;  and 
that  the  absence  of  motive  furnishes  a  strong  ground  for  inferring  tiiat  the  act 
must  have  been  connnitted  in  a  state  of  insanity.  The  existence  or  want  of 
motive  is  always  a  legitimate  subject  of  inquiry.  In  cases  depending  upon  cir- 
cumstantial evidence  it  is  sometimes  of  vital  importance.  But  it  is  never  indis- 
pensable to  a  conviction  that  a  motive  for  the  commission  of  the  crime  should 
appear.  The  law  imputes  malice  to  the  act  so  that  the  very  proof  of  the  killing 
furnishes  also  presumptive  evidence  of  malice.  And  yet,  while  the  prosecution 
is  relieved,  by  this  legal  presumption,  from  proving  an  actual  motive  for  the 
commission  of  the  offence,  the  absence  of  such  i)roof  is  often  an  important  con- 
sideration for  the-  jiuy  in  determining  the  eff.'ct  to  be  given  to  the  other  evidence 
in  the  case.  But  it  is  contended,  on  the  part  of  the  prosecution,  that  there  is 
proof  of  a  state  of  feeling  which,  considered  in  connection  with  the  state  of 
mind  exhibited  by  the  accused  at  about  the  period  in  (piestion,  relieves  the  case 
of  this  objection.  It  appears  that  sometime  during  the  spring  there  had  been  a 
dance  at  Lanagan's.  Though  not  one  of  the  party,  the  accused  went  there  and 
became  engaged  in  an  altercation  with  one  Smith,  and  angry  words  and  loud 
conversation  ensued.  If  it  be  true,  as  has  been  assumed  throughout  the  trial, 
that  the  accused  is  of  gentle  birth,  and  had  once  moved  in  the  higher  and  more 


rKOI'LK    r.   KOIUNSJJN. 


737 


In  the  Trlul  Court. 


pro- 


roflncd  walks  of  life,  wliat  a  painful  iliiislratloii  siic  prcsonts  of  the  rapid 
descont  which  a  woman  uiaki's  to  tlu;  lowest  (lt'|)tli.s  of  di'f^radation  and  vicr, 
when  she  oncc!  consents  to  take  leave  of  virtne  and  liinoeence!  Here  wt;  have 
this  fallen  woman,  who  is  des(;rit)ed  to  ns  as  possessing  higli  aceompiisliments 
and  ladyllko  manners,  volnntariiy  ndn;j;ling  with  the  parties  to  a  j;rocery  danee, 
ongajjinsj  In  a  brawl  with  one  of  the  party,  and  earrylng  the  <|narrel  so  far  as  to  pre- 
sent her  revolver  and  threaten  to  slioot  him.  To  (|ueil  llie  disturl)ance  slio  was 
reiiuested  to  leave  tlie  honse,  and  llnaily  Mrs.  Lanajian  led  her  home.  Tins  oc- 
eurrence  sconis  to  have  stiiiij?  her  pride,  for,  one  or  tw(»  mornings  after,  Ave  llnd 
her  returninjjj  to  the  grocery,  l)efore  I^anagan  was  out  of  l)ed,  and  she  tlien,  as  Mrs. 
I..anagan  .says,  commenced  abnsing  her,  saying  slie  was  a  very  mean  woman  to 
keep  a  set  of  rowdies  al)out  her  house  to  Insnlt  her  when  slie  came  there.  Her 
language  was  so  loud  and  violent  tliat  Lanagan  got  up,  an<l  coming  into  the  gro- 
cery, ordered  her  to  leave,  winch  slie  refused  to  do,  until  Mrs.  Lanagan  again 
Interfered  and  induced  her  to  go  home.  The  result  of  this  (piarrel  was,  that  .she 
did  not  again  return  to  Lanagan's  for  some  three  weeks,  after  wliieh  .she  again 
renewed  her  visits.  It  is  the  tlieory  of  the  prosecution  liiat  tliese  occurrences 
left  a  sting  rankling  In  the  bosom  of  this  woman,  which  needed  but  the  excite- 
ment, of  which  she  was  the  subject  on  the  25tli  of  May,  to  arouse  her  to  such  a 
degree  as  to  make  her  resolve  upon  the  destruction  of  tliose  who  had  become  the 
sul)jects  of  herresentinent.  Certainly,  these  circumstances  would  furnish  to  a 
.sound  mind  but  a  slight  motive  for  tlie  commission  of  such  a  crime.  How  far 
they  would  operate  on  an  irascible  temi)crament  like;  hers,  when  greatly  excited  by 
stiiniilants,  and  perhaps  other  vitiating  causes,  it  is  for  you,  gentlemen,  to 
judge. 

"  There  is  another  feature  of  this  case  which  may  have  some  bearing  upon  the 
question  under  consideration,  to  which  I  would  direct  your  attention.  It  is  the 
manner  in  which  the  deed  was  accomplished.  We  see  no  outl)urst  of  passion, 
l)ut  every  tiling  is  apparently  cool  and  orderly.  First,  the  proposition  to  drink 
the  beer,  and  that  insisted  on;  then,  obtaining  the  sugar,  the  arrangements  to 
mix  the  poison  wltli  it,  while  the  glasses  were  l)cing  tilled;  then  the  refusal  of 
the  accused  herself  to  drink,  and  her  effort  to  prevent  any  of  the  contents  of  the 
glass  from  being  removed.  Tliese  are  characteristics  whicli  may,  perhaps,  shed 
more  light  upon  the  state  of  this  woman's  mind  at  the  time. 

"There  is  another  class  of  evidence  bearing  upon  the  (|uestion  of  insanity  to 
which  you  will  not  fail  to  give  the  attention  which  you  tiiink  it  deserves.  I  al- 
lude to  *he  conversation  of  tlie  accused  a  short  time  previous  to  tlie  25th  of  May. 
This  evidence  is  found  chiefly  in  the  testimony  of  the  young  sewing  girl,  Mary 
Jane  Dillon,  who  became  acquainted  with  lier  in  March  previous,  Tlie  testimony 
of  Anthony  Goodspeed  belongs  to  the  same  class.  I  will  not  recapitulate  this 
evidence.  It  cannot  but  be  fresh  in  your  memories.  There  certainly  must  have 
been  in  the  statements  made  to  Miss  Dillon,  a  strange  commingling  of  trutli  and 
falsehood;  the  latter  predominating.  Whetlicr  the  tales  she  told  were  the 
vagaries  of  a  distempered  imagination,  or  the  inventions  of  her  fancy,  designed 
to  amuse  her  youthful  and  newly  acquired  friend,  it  is  for  you  to  inquire.  There 
was,  too,  something  exceedingly  strange  at  times  in  her  conduct,  especially 
Avhen  in  the  morning  she  came  in  her  night  clothes  to  the  residence  of  Miss 

4f 


738 


URUNKENNKSS. 


Notes. 


Dillon  ami  borrowed  her  dress.  It  will  Im;  your  duty  to  satisfy  yours«'Ivcs  as  to 
tlio  state  of  mind  to  wldcli  tills  conduct  is  to  be  uttrli)ut(>d. 

"  It  certaiuiy  was  not  straiifre  tliiit  tlic  accused  and  tliis  youna;  girl  sliould  l)e 
luutuaiiy  pleased  wltli  each  otlicr.  The  accused,  willi  an  ardent  temperament 
which  demanded  society,  was  so  situated  tiiat  she  was  compelled  (o  live  alone; 
she  had  sou.nlit  companionship  amoiujc  tliose  who  liad  no  tastes  or  sympathies 
witli  her  own,  and  wiiom  she  rev;arded,  proi)al)ly  witii  contempt.  It  was  a  relief 
to  her  solitariness,  therefore,  to  meet  witli  Miss  Di'lon;  a  younuj  witless,  iniaj;- 
Inativegirl,  with  wlioin  she  could  at  least  talk.  Tuere  was  much,  too,  in  the  air 
and  manner  and  romantic  stories  of  the  accused,  to  please  the  taste  for  romance 
which  this  younj;  j!;irl  seems  to  have  possessi-d.  She  says  she  was  ph-ased  witli 
her  conversation,  thouf^h  she  adnuts  tiiat  licr  ear  was  sometimes  offended  by 
expressions  botii  of  profanity  and  obscenity.  IIow  far  the  testimony  of  this 
girl  tends  to  establish  tlie  defence,  it  is  for  you  to  consider.  It  is  upon  this  tes- 
timony, supported,  as  it  is,  by  some  other  kindred  but  less  important  evidence, 
tliat  tlie  counsel  for  tlie  defence  chiefly  rely. 

*'  The  theory  of  the  defence  is,  that  the  accused  had  become  apprehensive  that 
she  was  aljout  to. be  al)andoned  by  one  who  had  bien  iier  friend  ami  suptiortcr, 
and  that  this  apprehension  operating  on  her  nervous,  excitable  temperament, 
with  the  recollection  of  her  own  former  position,  from  which  slie  had  so  sadly 
fallen,  had  unhinged  her  mind,  and  that  the  eccentricities  wliich  marked  her  con- 
duct about  the  period  to  which  our  iurpiiries  relate,  were  but  the  outbursts  of  in- 
cipient madness.  To  sustain  tins  theory  the  testimony  Of  Mr.  Urownell  was 
introduced,  to  whom  it  seems,  early  in  May,  the  accused  had  described  her 
griefs  and  apprelieusions. 

"Thus  far  I  have  only  noticed  the  testimony  which  relates  to  occurrences  whicli 
happened  before  tlie  arrest  of  the  accused.  What  her  coniluct  was  afterwards  is 
only  important  as  it  sheds  light  on  her  previous  condition.  Her  conduct  after 
she  was  committed  to  prison  was  indeed  strange.  How  far  this  conduct  was 
produced  by  the  enormity  of  the  charge  preferred  against  her,  and  a  sense  of 
the  condition  in  which  she  found  herself;  and  how  far  by  being  suddenly  deprived 
of  the  stimulants  in  which  she  had  evidently  been  indulging  so  freely;  or  how  far 
by  disordered  intellect;  are  questions  which  I  suggest  for  your  consideration. 
In  this  connection,  too,  it  will  be  proper  to  consider  the  opinions  of  the  two 
pliysicians  wlio  had  the  opportunity  of  seeing  lier  in  jail,  and  who  say  that,  in 
their  opinion,  she  was  not  rational.  Such  opinions  are  allowed  to  be  given  in 
evidence  not  as  by  any  means  controlling  your  own  opinions,  but  to  be  consid- 
ered by  the  jury,  who  are  to  give  them  such  weiglit,  as  in  their  judgment,  having 
regard  to  the  experience,  and  opportunities  for  observation  which  those  Avho 
express  the  opinions  have  enjoyed,  such  opinions  deserve. 

"And  now,  gentlemen,  I  have  noticed  what  I  regard  as  the  principal  points  and 
features  of  the  case  before  us.  I  liave  not  thought  it  fit  to  review  at  length  the 
evidence  presented,  as  I  am  sure  tliat  it  is  all  fully  within  your  recollection. 

"  Here  my  duty  ends,  and  yours  begins.  I  am  conscious  liow  imperfectly  I  have 
discliarged  my  duty,  and  yet  it  has  been  my  single  aim  to  administer  the  law  with 
a  steaily  and  unswerving  hand.  In  tlie  discharge  of  your  duty  be  faithful  to 
your  own  high  obligations.  Deal  justly  with  tills  poor,  unliappy  woman,  whose 
destiny  is  now  committed  to  your  hands.    Deal  mercifully  with  her,  too.    This 


PEOPLE    V.  UOBIXS<J\. 


789 


In  tlu!  Appclliitc  Court. 


Ih  your  privilc^ro.  Tlic  law  allows  every  well -srouiuled  (loul)t  to  iivail  for  lior 
acquittal.  If  after  a  full  consideration  of  all  facts  in  the  ease  nosiicli  doubt  rests 
upon  your  minds,  you  must  not  hesitate,  thouirh  it  l)e  with  aiifjidsh  of  heart,  to 
pronounce  her  guilty,  lint  if  ycm  can,  after  all,  say  tliat  you  are  not  satlslli'd 
of  her  fruiit,  it  will  i)e  your  ufireealjle  iluty  to  pronounce  a  verdict  of  acquittul." 

The  jury  found  the  j^risoner  guilty, 

(c)  Drunkenness  —  Homicide  —  Insanity  —  People  v.  Robinson,  on  Ap- 
peal.—  t'onvicled  below,  Henrietta  Rohiusou  a|)peaicd  to  the  Supreme  Court, 
alleging,  amoiiu  other  things,  error  in  the  instructions  of  tlie  trial  court  on  tho 
sut)jectsof  druuicenness  and  insanity.  Hut  tiie  judgment  was  adlriued  1)y  tlie 
Supreme  Court. i  "In  charging  tlie  jury,"  said  I'akkk.k,  1\  J.,  "tlio  learned 
judge  made  use  of  tlie  following  expression:  '  It  is  my  duty  to  say  to  you,  gen- 
tlemen, that  if  .slie  (tlie  prisoner)  was  intoxicated  to  siicii  an  extent  that  she  was 
uncoiLscious  of  wliat  she  was  doing,  still  tlu;  law  lioids  licr  rcsi)onsibie  for  her 
act.'  And  afterwards  in  otlier  portions  of  the  charge  tlic  judge  said:  '  Tliougli 
the  prisoner  may  Iiave  been  excited  by  strong  drink  at  the  time  of  the  alleged 
offence,  even  to  sucii  an  extent  as  not  to  know  whatsiie  was  doing,  slie  must  an- 
swer for  the  conse(piences;  her  self-intiicted  insanity  must  not  lie  allowed  to 
avail  her  for  her  defence.  Tlie  law  still  imputes  to  her  a  murderous  intent.'  Ex- 
ceptions were  talccn  l)y  the  prisoner's  counsel  to  each  of  these  parts  of  the 
ciiarge,  and  their  alleged  erroneousuess  constitutes  the  lirst  ground  on  whicli 
they  now  rely  for  a  reversal  of  tlio  proceedings  of  the  Oyer  and  Terminer. 

"  If  the  proposition  tiiat  the  law  wouhl  hold  the  prisoner  responsible  for  her  act, 
thougli  she  was  intoxicated  to  such  an  extent  tliat  she  was  uncouscious  of  wliat 
she  was  doing,  stood  alone  and  unexplained  by  the  context,  so  as  to  be  distinctly 
presented  for  adjudication,  I  sliould  liave  no  liesitation  in  saying  that  it  could 
not  be  sustained,  for  l)y  conceding  the  unconsciousness  of  tiie  prisoner  it  con- 
tains within  itself  a  relinquisliinent  of  tiie  legal  i)r('sumption,  tliat  the  prisoner 
must  have  intended  tiie  natural  consequences  of  iier  own  acts.  It  would,  tiiere- 
fore,  condemn  the  act  as  the  result  of  premeditated  design,  when  it  concedes  on 
its  face  that  none  existed.  Tlie  proposition  standing  l)y  itself,  would  apply  to  a 
person  reduced  liy  intoxication  to  a  state  of  insensibility;  and  would  impute  to 
Lira  a  premeditated  design  to  take  life,  if  lie  sliould  by  cliance  kill  a  person  by 
stumbling  against  him  or  by  rolling  against  him  in  a  gutter.  It  would  convict 
of  murder  a  drunken  motlicr,  wiio  should  smother  her  infant  in  her  embrace  or 
by  overlying  it  in  bed,  however  strong  might  have  l)een  her  affection  for  her  off- 
spring. It  is  hardly  necessary  to  say,  that  no  sound  legal  construction  could 
bring  such  a  transaction  witliin  the  statute  detlnition  of  murder,  whicii  requires, 
in  all  cases,  like  that  now  before  us,  a  premeditated  design  to  effect  deatli.'  But 
it  is  apparent  that  it  was  not  the  intention  of  the  judge  to  lay  down  any  such 
proposition.  Tlic  portion  of  the  charge  excepted  to  must  be  considered  witli 
reference  to  the  facts  of  the  case,  and  in  connection  witli  other  facts  of  the 
charge  whicli  arc  necessary  to  a  proper  understanding  of  its  import  and  mean- 
ing.   The  offence  charged  was  that  of  murder  by  administering  poison,  the  de- 


1  People  V.  Robiusoii,  2  Park.  235  (183.^). 


'  2  R.  S.  657,  sect.  5 


740 


DRUXKEXNEMS. 


NoU'S. 


fence  principally  rclli'd  upon  was  insanity.  It  was  not  claiinod,  nor  was  there 
any  cviiliMicu  tu  warrant  a  c-lalni,  tliat  tli(>  prlsomr  wa.s  ho  much  hitoxicutud  as 
to  1)0  ijcrijft  of  her  si'usi's  or  unconscious  of  whiit  slie  was  doing.  On  the  con- 
trary, di'slgn  was  apparent  throu;j;liout  tlio  whoio  transaction.  WhcthiT  that 
dL'si;^ti  was  conceived  and  enti'rtalncd  by  u  mind,  sober  or  excited  l»y  strong 
drlnli,  was  not  material,  and  whether  l)y  a  mind  sane  or  insane,  was  a  proper 
subject  for  the  consideration  of  tiie  jury.  The  whole  charge  tal^en  toj^ether 
shows,  I  think,  tiiat  when  the  judge  said  the  law  would  still  hold  the  prisoner 
responsible  for  her  act,  tliou;ih  she  was  intoxicated  to  such  an  extent  as  to  be 
unconscious  of  what  she  was  doing,  he  liad  reference,  not  to  a  state  of  insensi- 
bility, but  to  a  state  of  excitement  or  madness,  the  Iminetllato  conseqnenco  of 
Indulgence  In  strong  drinks.  For  after  putting  a  case  by  way  of  illustration.  In- 
consistent with  the  consiructlon  claimed  by  the  prisoner's  counsel,  and  then 
stating  that  If  it  appeared  tliat  by  tlie  inscrutable  visitation  of  Providence  the 
faculties  of  a  man  had  become  so  disortlere«l  that  he  was  no  longer  cajiabie  of 
discriminating  between  right  and  wrong  in  respect  to  the  act  he  had  committed, 
then  the  law  would  pronounce  him  innocent  of  crhne,  he  added:  'But  If  his 
derangement  bo  voluntary  —  if  his  madness  be  self-invited  —  the  law  will  not 
hear  him  when  ho  makes  his  intoxication  his  plea  to  excuse  him  from  punish- 
ment.' The  whole  of  this  charge  taken  together  and  the  explanation  contained 
in  the  other  part  of  the  charge  excepted  to  show  very  satisfactorily  that  the 
judge  Intended  to  charge,  that  self-inflicted  insanity,  tiie  Innnedlatc  consequence 
of  drink,  would  constitute  no  di fence;  and  It  could,  I  think,  have  been  under- 
stood by  the  jury  In  no  other  sense. 

"To  that  extent  the  rule  has  been  long  established  at  common  law.  'Adnink- 
ard,' says  Lord  Coke,  'hath  no  privilege  thereby;  but  what  hurt  or  111  soever 
he  doeth,  his  drunkenness  doth  aggravate.' *  Russell  says,*  with  respect  to  a 
person  non  compos  mentis  from  drunkenness,  a  species  of  madness  which  has 
been  termed  dementia  affectata,  It  is  a  settled  rule,  that  if  the  drunkenness  be 
voluntary,  it  cannot  excuse  a  man  from  the  commission  of  any  crime,  but,  on 
the  contrary,  must  be  considered  an  aggravation  of  whatever  he  does  amiss.' 
'  Nam  omne  crimen  ebrietas  incendit  et  detegit,^  has  become  a  maxim  of  the  law.* 
The  rule  is  otherwise  when  the  drunkenness  is  not  voluntary;  as  if  a  person  by 
the  uuskllfulncss  of  his  physician,  or  by  the  contrivance  of  others,  and  with- 
out auy  volition  on  his  own  part,  «.:afc  ci  drink  such  a  thing  as  causes  frenzy,  this 
puts  him  in  the  same  condition  nsotiier  insane  persons,  and  equally  excuses 
hlm,^  and  in  cases  of  delirium  trcii.f  ns,  or  mania  potu,  the  Insanity  excuses  the 
act,  the  frenzy  being,  not  the  inuuedlate  effect  of  Indulgence  In  strong  drink,  but 
a  remote  consequence  superinduced  by  antecedent  drunkenness.*  These  general 
principles  are  fully  recognized  in  the  modern  English  cases,'  and  also  in  decls- 


1  4.  Coke,  125 ;  1  Co.  Litt.,  247;  1  Hale,  31;  4 
Black.  Com.  26. 
»  Co.  Litt.  247. 
»  1  Russ.  on  Cr.  7. 
*  4  Black.  Com.  26. 
«  Barb.  Cr.  L.  268. 


•  Barb.  Cr.  L.  268;  Dean's  Med.  Jur.  681;  3 
Am.  Jur.  0,  20. 

'  Rex  V.  Patrick,  7  C.  &  P.  146;  R.  v. 
Meakin,  Id.  297 ;  Burrow's  Case,  1  Lewin  0. 
C.  76 ;  Rennie'a  Case,  Id.  76;  R,  v.  Tbomaa,  7 
0.  A  P.  820. 


I'KOPLK    l\  ItOHINSON. 


741 


III  tlR'  Appt'lluli'  Court. 


Ions  111  llils  country,'  In  tlie  latter  nise  Mr.  Judmi.'  Siniiv  rcitoniles  and  np- 
provi's  nil  till!  ruli'>  aliovu  (piotod  at  counnoii  law,  tlicrufore,  tluTo  can  bu  uo 
(loulituf  the  ('onci'tucss  of  ilii;  rliar;;*;  on  tliU  point. 

"  Uut  it  i.s  supposed  our  Ntatutuhus  so  far  t-liaii^od  thu  common-law  dtlliiitlon 
of  murder  as  to  lie  liieonsistfiit  with  tlio  iiropositioii,  that  druukunness  diios  not 
fxi'use,  i)Ut  aj?;;ra\  iirs  the  crinie. 

"  In  those  States  In  which  uiurdcr  has  been  divided  by  statute  Into  decrees,  It 
has  been  liild,  thill  if  the  accused  was  Intoxicated  to  sucli  an  extent  as  to  de- 
prive him  of  the  power  to  form  a  desijin,  the  offence  would  be  no  more  than  mur- 
der in  the  second  dcfirce.  In  IVnnsylvania,  murder  in  the  first  deirrce,  Is  where 
the  offence  is  perpetrated  by  means  of  poison,  or  by  lyiiiji  In  wait;  or  In  perpe- 
trutiugor  uttemptiuK  to  perpetrate  any  arson,  rape,  roiibery  or  biir-riary,  or  by 
any  other  wilful,  deiilierate  and  premeditated  kiHini;,  and  is  i)uuisiial)le  with 
deatli.  Murder  in  the  second  degree,  in  that  State  embraces  'ail  other  kinds  of 
murder,'  and  is  punishable  liy  solitary  conllnemeiit,  at  labor  in  the  penitentiary .i 
In  that  State  it  was  held  in  tlio  case  of  /Idijijrrt;/,  tried  at  tlie  Lancaster  Oyer  and 
Terminer  in  1847,  that  the  i»rlsoiier  could  not  be  convicted  in  the  llrst  deiiree,  if 
deprived  by  voluntary  iulo.\ication  of  the  power  to  form  a  delilierate  desij^n  to 
perpetrate  the  act.  The  very  able  eharire  of  the  learned  president  juil;:c  lii  tliat 
case  will  be  found  reported  at  ien*rth  in  Lewis'  IJ.  S.  Cr.  Law.*  A  simihir  opin- 
ion was  expressed  by  Mr.  Justice  1)a.mi;i,  in  Commomoealth  v.  Jones,*  the  stat- 
ute of  Virginia,  on  tlie  subject  of  murder  beimj  substantially  like  that  of  Penn- 
sylvania.* In  Tennessee  also,  where  a  like  division  of  murder  Into  dei^recs  is 
made  by  statute,  It  was  held  In  Ilttile  v.  State,'^  that  in  all  cases  where  the  ques- 
tion is  between  murder  in  the  llrst  degree,  and  murder  in  the  si-cond  dcLrree,  the 
fact  of  drunkenness  may  be  proved,  to  shed  light  ui)on  the  state  of  mind  of  the 
defendant,  so  as  to  enable  the  jury  to  determine  v  liether  the  killing  sprung  from 
a  premeditated  purpose,  or  from  passion  excited  by  a,le(|uate  provocation;  and 
the  degree  of  drunkenness  need  not  be  such  that  it  deprives  the  defendant  of  the 
capacity  to  form  a  deliberate  and  premeditated  dexign  to  take  life.  All  these 
cases  proceed  upon  the  principle  expressly  declared  by  Judge  Kki.sk  In  Swan  v. 
State,''  that  although  drunkenness,  in  point  of  law,  constitutes  no  excuse  or 
justification  for  crime,  still  when  the  nature  and  essence  of  a  crime  are  made  to 
depend  upon  the  peculiar  state  and  condition  of  the  criminal's  mind  at  the  time, 
and  with  reference  to  the  act  done,  drunkenness  may  lie  a  proper  subject  for  the 
consideration  of  the  jury. 

"All  these  decisions  to  wliich  I  have  referred,  as  being  made  in  States,  where, 
by  statute,  murder  is  divided  into  two  degrees,  were  made  in  cases  where  death 
was  caused  by  violence  and  where  it  became  necessary  to  ascertain  wliether  the 


'  McDonough's  Case,  Rran  Med.  Jur.  2!)4 ; 
cases  cited  in  1  Heck's  Med.  Jur.  627;  ISeii- 
nett  V.  State,  Mart.  &  Yerg.  l.TS;  Cornwell 
V.  State,  Id.  147 ;  Schaller  v.  State,  14  Mo. 
602;  6  Law  Rep.  (N.  s.)  fi63;  1  Wright's  Ohio 
Rep.  80 ;  8  Ired.  330 ;  Wilson'i;  Caee  and  Bird- 
eall's  Case,  reported  in  Ray's  Med.  Jur., 
sects.  405,  406;  Kelly  r.  State,  3  Smed.  A  M. 
618;   U.  S.    V.  Clarke,  2  Cranch  0.  C.  158; 


t'.  S.  r.  McGIue,  1  Curt.  C.  C.  1;  Stater. 
Jolin,  9  Ired.  330;  U.  S.  v.  Drew,  6  Mason,  2a. 

2  Penn.  Stat.  1784. 

3  p.  402. 

<  1  Leigh,  612. 
'■  Virginia  Stat.  1796. 
«  11  Humph.  154. 
'  4  Humph.  136. 


i 

I 


I 


742 


DRUNKENNESS. 


Notes. 


act  Wiis  (li'lihoratu  and  (jninoditatod,  so  as  to  fall  within  tiic  first  (loi^roe.  I  am 
l)y  no  iiR-aiis  prepared  to  hold  that  it  niijiht  not  he  jiroper  nnderour  own  statute 
to  show  the  di'uree  of  drunkenness  of  the  accused  for  the  i)iirpose  of  ascortain- 
iiig  whether  lie  had  the  power  to  i)reineditatc  tiie  act,  thonuli  in  tlie  (^asc  of 
Jla;/fj(!rt>i  above  cited,  Li'.wis,  J.,  expresses  the  opinion  that  it  is  only  in  tliose 
States  where  murder  is  divided  into  dej^crees,  tliat  drunkenness  can  he  set  up  as 
a  defence.'  Our  stalufe  has  not  divided  the  crime  of  murder  into  dcjireos,  but 
It  has  limited  and  delined  the  offence;  and  a  case  cannot  he  hrotif^ht  within  the 
first  sul)dl vision  of  the  section  unless  tliere  he  a  premeditated  Uesijin,  in  fact,  to 
effect  the  death  of  the  person  killed  or  of  some  liuman  heing.  The  i)roposition 
laid  down  in  JSiOcn  v.  Side  seems  to  me  lo  he  iucoutrovertihle  and  to  he  univer- 
sally applicable,  vi ',. :  that  where  the  nature  and  essence  of  the  crime  :<re  made 
))y  law  to  depend  upon  the  peculiar  slate  and  condition  of  the  criminal's  mindat 
the  time  with  reference  to  the  act  done,  drunkenness  may  he  a  proper  subject 
for  the  consideration  of  the  jury,  not  to  excuse  or  mitiiiate  the  offence,  but  to 
.show  tiiat  it  Avas  not  committed.  There  arc  many  cases  recognizing  this  dis- 
tinction.'' 

"  Hut  it  is  only  in  cases  where  death  is  caused  by  personal  violence  that  it  be- 
comes necessary  even  in  those  States  where  murder  is  divided  into  degrees  to 
inquire  whether  llii'  act  was  deliberate  and  ju'emeditated,  for  the  purpose  of 
ascertaining  the  degree.  For  in  all  these  Slates  "  poisoning"  is  specially  placed 
under  the  head  of  murder  in  the  first  degree.  Even  in  Pennsylvania,  Virginia, 
.nnd  Tennessee,  llie  defence  of  drunkenness  could  not,  if  proved,  re<lucc  the  of- 
fence to  murder  in  tlie  second  degree.  The  very  term  "  poisoning"  implies  de- 
sign, and  could  not  he  criminally  committed  by  a  person  in  such  a  stale  of  mind 
as  to  preclude  premeditation.  No  case  cv)idd  possil)ly  occur  in  which  the  act 
could  be  perpetrated  by  a  person  in  a  state  of  insensibility  from  intoxlcalion; 
and  the  degree  of  drunkenness,  if  less  than  fliat,  would  not  he  a  material  subject 
for  inquiry,  for  if  there  were  enough  mind  left  to  conceive  and  perpetrate  the  act, 
there  would  he  enough  to  subject  the  offi'uder  t<)  legal  responsibility.  If,  in  the 
case  before  us,  the  prisoner  mingled  arsenic  with  the  drink  of  Lauagan  ft)r  the 
purpose  of  effecting  his  death,  or  the  death  of  any  other  person,  slus  was  guilty 
of  inunler,  though  excited,  no  matter  to  wliat  degree,  by  intoxication  at  the 
time.  Tliere  was  no  |)retenci!  tliat  the  mingling  of  the  poison  was  the  result  of 
accident,  hut  the  most  satisfactory  evidtMice  to  the  contrary.  A  person,  stimu- 
lated even  to  the  highest  pitch  of  fren/.y  by  .strong  drink,  n.:iy  still  he  capable  of 
planning  and  executing  a  criminal  dc'sign,  and  in  such  case,  it  is  qidte  clear,  that 
neitlit>r  under  our  statute,  any  more  than  at  common  law,  can  drunkenness  he 
alleged  as  an  excuse  for  the  act. 

"  If  I  am  riixht  tlierefore  in  the  construction  I  have  ptit  upon  the  language  of 
the  charge,  no  error  was  committeil."     The  judgment  was  allirmcd. 


1  Lewis  Cr.  I,.  Any 

•  liex  r.  tiriii(ilc_v,  1  nuss.  on  Or.  7,  sul)se- 
queiitly  iiui'stioncd  in  l!ex  r.  Carroll,  7  C. 
&  V.  145;  I{i'j?.  r.  Moon-,  citcil  t)  Law  lU'p- 
fs.  s.)  .501 ;  :M:irsliairs  Case,  1  l.ewiii.  (.;.  f.  76; 
ll'g.  I'.  C'm>v.  S  C.  &   r.  ."i41;    I'igninn    t-. 


State,  U  Ohio,  .'),-)5;  Uex  r.  Thomas,  7  C.  & 
r.S17;  Uox  r.  Meakin,  /^.2!)7;  rirlle  r.  State, 
9  nunipli.eo;!;  I'ennsylvania  »-.  McF.'ill,  Add. 
2.57  ;  Wharton'sLawof  Homicide,  369;  Whar- 
ton's Cr.  L.  92. 


VOLlIXTAltY    INTOXICATION    NO    DEFKNCK. 


743 


Stiitc  V.  ThoinpKou. 


(<0  Voluntary  Intoxication  —  State  v.  Thompson. —  In  State  v.  Thomp- 
son,^ the  dufendaut  wuh  convicted  of  niurdor  in  tlie  llrst  dojirei; 
in  killing  onu  William  McRavy  and  appealed  to  the  Supreme  Court. 
The  opinion  of  Lkonaud,  J.,  who  delivered  the  opinion  afllrniing  the  ju(l<jc- 
nient  below,  is  as  follows:  "  A|)pellant  next  urj:;es  that  the  verdict  was 
contrary  to  the  evidence.  There  was  testimony  tending  to  show  not  only 
that  defendant  conunitted  the  homicide  at  the  time  and  place  stated  in  the 
indictment,  but  also  that  he  conunitted  it  with  |»remi'ditation  and  deliberation. 
An  effort  was  made  by  the  defence  to  show  that  deceased  committed  suicide; 
that  defendant  was  insane,  and  that  he  was  drunk  at  the  tiuic.  There  was  no 
proof  teudinf^  to  establish  the  fact  of  suicide;  none  to  show  insanity  at  the 
time,  beyond  that  which  is  the  innnediate  effect  of  excessive  drinking.  On  the 
contrary,  there  was  the  testimony  of  many  witnesses  who  saw  the  defendant 
for  days  prior  to  the  homicide,  establishing  the  fact  that  he  was  at  all  times  con- 
scious of  las  acts,  and  knew  good  from  evil.  Under  such  circumstances  we  need 
not  repeat  what  has  been  so  often  decided  by  this  courl,  that  upon  this  ground 
the  judgment  of  the  court  below  will  not  be  reversed.  Third.  Appellant  claims 
that  the  court  niisinstructed  the  jury  in  a  matter  of  law  in  this :  At  the  instance 
of  defendant's  attorney,  the  court  instructed  the  jury  as  follows:  'In  every 
crime  or  public  offence  there  must  be  a  union  or  joint  opi  niliou  of  act  and  in- 
tention or  crimiinil  negligence.  Tliat  intention  is  manifested  by  the  circum- 
stances connected  with  the  perpetration  of  the  offence  and  the  sound  mind  and 
discretion  of  the  person  accused.  A  person  shall  be  considered  of  sound  mind 
who  is  neither  an  idiot  nor  a  lunatic,  or  affected  witii  in><anity,  and  who  hatli  ar- 
rived at  the  age  of  fourteen  years,  or  before  that  age,  if  he  knows  the  distinc- 
tion between  good  and  evil.  Drunkenness  shall  not  be  an  excuse  for  any  crime 
unless  such  drunkenness  be  occasioned  by  the  fraud,  coiitrivant'c  or  force  of 
some  other  person  or  persons,  for  the  jturpose  of  causing  the  perpetration  of  an 
offence.'  At  the  instance  of  the  district  attorney,  the  court  gave  the  following 
instruction  to  the  jury:  — 

"  '  It  is  a  well  settled  rule  of  law  that  drunkenness  is  no  excuse  for  the  com- 
mission of  a  crime.  Insiinity  produced  by  intoxicatiou'does  not  destroy  respon- 
sibility whX'n  the  party,  when  sane  and  resi)onsil)le,  made  himself  voluntarily 
intoxicated;  and  drunkenness  forms  no  defence  whatever  to  the  fact  of  guilt, 
for  when  a  crime  is  committed  by  a  party  while  in  a  (it  of  intoxication,  the  law 
will  not  allow  him  to  avail  himself  of  his  own  gross  misconduct  to  shelter  him- 
self from  the  legal  consequences  of  such  crime.  Exidence  of  drunkenness  can 
only  be  considered  by  the  jury  for  the  pnri)osc  of  determiidng  the  degree  of  the 
crime,  and  for  this  puri)ose  it  must  be  received  with  caution.'  Counsel  for  ap- 
pellant urge  that  the  last  instruction  conflicts  with  the  former  upon  the  question 
of  in-.inity.  We  do  not  think  so.  The  lirst  trc;its  of  settled  insanity,  the  last  of 
temporary  insanity,  i)roduced  inunediately  by  intoxication. 

"An  -uueiit  writer  upon  crinnnal  law  thus  states  the  established  principles 
upon  this  subject :  — 

"  'Settled  insanity,  produced  by  intoxication,  affects  the  responsibility  in  the 
same  way  as  insanity  produced  by  any  other  cause.     Temporary  insanity,  pro- 

'  12  NcT.  140  (1877). 


i 


744 


DULNKEXXESS. 


Notes. 


duccd  iimncillati'ly  by  intoxication,  doos  not  destroy  responsil)ility  where  the 
patient,  wlion  sane  and  responsible,  made  liiniself  voluntarily  intoxicated.  While 
intoxication  per  se  is  no  defence  to  the  fa(;t  of  jjcnllt,  yet,  when  the  qnestion  of 
intent  or  i)reineditation  is  concerned,  evidence  of  it  is  material  for  the  purpose 
of  determining  the  precise  dejiree.'  ' 

•'Another  author  says:  <  When  a  man  volnntarily  becomes  drunk,  there  is  the 
wrongful  intent;  and  if  while  too  far  none  to  have  any  further  intent,  he  does  a 
wrongful  act,  the  intent  to  drink  coalesces  with  the  act  done  while  drunk,  and 
for  this  combination  of  act  and  intent  he  is  lial)le  criminally.  It  is,  therefore,  a 
legal  doctrine,  applicable  in  ordinary  cases,  that  voluntary  intoxication  furnishes 
no  excuse  for  crime  committed  under  its  influence.  It  is  so,  even,  when  the 
intoxication  is  so  extreme  as  to  make  the  person  unconscious  of  what  he  is  doing 
or  to  create  a  temporary  insanity.'^ 

"  In  United  States  v.  McGlne,^  the  court  saj's:  '  If  a  person  suffering  under 
delirium  tremens  is  so  far  insane  as  I  have  described  to  be  necessary  to  render 
him  irresponsible,  the  law  does  not  punish  him  for  any  crime  he  may  commit. 
But  if  a  person  commits  a  crime  under  the  innnediate  influence  of  liquor,  and 
while  intoxicated,  the  law  does  punish  him,  however  mad  he  may  have  been.'  * 

•'  The  testimony  in  this  case  shows  that  appellant,  prior  to  January  2,  1877, 
drank  very  considerably,  and  sometimes  excessively  for  several  years;  that  a 
year  or  two  before  that  time  he  had  the  delirium  tremens.  Hut  there  is  no 
testimony  tending  to  show  that  he  was  so  alHicted  at  the  time  of,  or  within  two 
years  before  the  death  of  Mcllixvy.  All  the  testimony  shows  that  he  drank  so 
much  as  to  be  undtr  the  influence  of  rKpu)r  for  several  days  prior  to  January  2. 
And  on  that  day  he  was  so  affected.  The  testimony  further  shows,  that  prior  to 
the  homicide  he  was  conscious  of  what  he  did,  although  under  the  influence  of 
liquor.  Under  such  circumstances,  any  Instruction  upon  insanity,  beyond  that 
which  is  the  immediate  effect  of  intoxication,  would  have  been  improper,  and 
would  have  been  harmless  had  it  been  given,  because  there  was  no  evidence  to 
which  it  couhl  have  applied. 

"Temporary  insanity  produced  by  intoxication  does  not  destroy  responsibility 
if  the  party  when  sane  and  responsible  made  himself  voluntarily  intoxicated.  We 
are  satisfled  the  jury  must  have  understood  the  instruction  in  that  sense,  and 
that  under  the  testimony  it  made  no  difference  if  they  did  not. 

"This  instruction  was  copied  verbatim  from  one  given  in  the  case  of  People  v. 
Leicis,^  and  also  in  People  v.  Williams,^  and  it  was  declared  correct  in  each  case. 

"  We  think  the  instructions  taken  together  fairly  present  the  law  of  the  case." 

(f)  Perjury  —  Intoxication  no  Defence — People  v.  WlUey.  —  \n  People  y. 
Willey,''  tried  in  New  York  in  1823,  the  prisoner  was  charged  with  perjury  in 
swearing  out  a  warrant.  His  counsel  offered  to  prove  that  he  was  intoxicated  at 
the  time  he  came  before  the  magistrate,  and  obtained  the  warrant  and  stated 
that  such  a  defence  had  been  admitted  by  Chief  Justice  Spencku  in  a  case  of 
perjury.    Walworth,  Circuit  Judge :  "  It  is  a  general  rule  in  criminal  prosecu- 


i 


'  Wharton  on  Homicide,  sect.  587,  et  $eq. 

>  Bishop's  Grim.  Law.  sect.  400. 

«  1  Curtis,  C.  C.  13. 

«  Cornwell  v.  State,  Mart.  &  Yerg.  147. 


•  M  Cal.  .131. 

•  43  Cal.  345. 
'  2  Park.  19. 


i.\to.\i(;ation  no  dkfence. 


745 


I'lTJury —  Bliispliciiiy  —  Arson. 


tions  that  the  intoxication  of  tlie  accnscd  is  no  dofonce  and  forms  no  excuse  for 
tlieconunis.'sion  of  a  crinio.  It  has  hecn  frc(|iiontly  so  decided  even  in  tiie  case 
of  murder,  though  Juds^e  Vax  Nkss  once  permitted  the  fact  of  intoxication  to  be 
proved  to  reijut  tlie  presumption  of  malice  where  a  man  had  been  Ivilled  in  a 
sudden  affray,  and  to  sliow  tliat  tlie  act  was  the  effect  of  sudden  passion  and  not 
of  premeditation.  But  the  correctness  of  that  decision  has  been  much  doubted. 
This  can  be  nothing  in  a  case  of  barefaced  i)er jury  like  the  i)rcsei!t  to  take  it 
out  of  the  general  rule.  There  must  be  some  mistake  aljout  the  ease  sahl  to  have 
been  decided  by  Chief  Justice  Si'kxcku.  JJut  even  if  he  did  so  decide,  it  was 
contrary  to  the  uniform  decisions  of  courts  in  relation  to  such  a  defence  and 
therefore  cannot  be  the  law."    The  prisoner  was  convicted. 

(/)  Blasphemy —  Intoxication  no  Defence  —  People  v.  Porter.  —  In  People 
V.  Porter,^  the  prisoner  was  indicted  in  New  York  for  blasphemy.  Ills  counsel 
offered  to  prove  that  he  was  so  beastly  tlriink  that  he  did  not  know  what  he  said: 
Walwoktii,  J.— "That  is  no  excuse,  and  only  aggravates  the  offence." 

(g)  Arson  —  Intoxication  no  Defence  —  People  v.  Jones.  —  In  People  v. 
Jones'^  the  prisoner  was  indicted  for  arson.  In  charging  the  jury  the  .Judg(! 
said:  •'  It  was  urged  and  was  attempted  to  be  proved  that  at  the  lime  he  was  too 
drunk  to  know  Avhat  he  was  about.  Now,  though  the  rule  is  well  established 
that  intoxication  voluntarily  imposed  is  no  excuse  for  or  extenuation  of  crime, 
yet  it  is  proper  to  consider  it  in  cases  where  the  intention  is  the  main  element  of 
the  offense,  as  in  homicide,  whether  there  is  an  intention  to  kill,  and  in  passing 
counterfeit  money  whether  it  was  known  to  bo  counterfeit.  In  such  cases,  it 
may  with  great  propriety  be  asked  whether  the  mind  was  in  a  condition  to  have 
the  requisite  intention  or  knowledge?  But  there  was  no  such  element  in  this 
case,  for  when  it  was  clearly  made  out,  as  it  was  here,  that  the  firing  the  house 
was  wilfully  done,  it  was  of  no  consequence  what  was  the  motive  for,  or  the  in- 
tention of  the  act,  nor  was  it  even  necessary  to  prove  that  the  prisoner  knew 
that  the  building  was  inhabited.  The  fact  that  it  was  so  was  all  that  the  law  re- 
quired to  be  made  out.  The  motive  of  the  prisoner  then  for  perpetrating  the 
offense,  or  his  condition  of  intoxication,  were  alike  excluded  from  consideration 
by  the  language  of  the  statute  delining  the  crime.  How  far  it  might  be  just  or 
wise  to  establish  so  severe  ii  rule  was  not  for  the  court  or  jury  to  determine; 
it  was  enough  for  them  that  the  law,  which  it  was  their  duty  to  administer  was 
thus  written." 

§  GO.  Does  Drunlcenness  Aggravate  an  Offence.— There  are  some  j  udicial  dicta 
in  the  reports  that  drunkenness  is  an  aggravation  of  an  offence.*  In  Mclntyre  v. 
P«opZe,*  the  court  said  to  the  jury:  "Drunkenness  is  no  excuse  for  crime,  but  rather 
an  aggravation  of  it."  In  passing  upon  this  instruction  the  Supreme  court  said: 
"We  are  aware  that  text-writers  frequently  say  that  drunkenness  is  no  excuse 
for  crime,  but  rather  an  aggravation  of  the  offence.    That  it  is  no  excuse  is  cer- 


!  2 Park.  14  (1823). 
«  2  Edm.  Scl.  Vi\B.  88  (1840). 
»  Com.  r.  Hart.  2  Brcwst.  546  (18C8^.  U.  S. 
v.  Forbes,  Crubbe,  559  (1846);   U.  S.  r.  Clay- 


pool,   14  Fed.  Rep.   127   (1882)    and  casea 
pasHm. 

*  38111.515(1865). 


74(1 


DUUNKENXESH. 


Notes. 


tiiinly  true,  but  that  It  should  be  held  iu  law  to  aggravate  crime  is  not,  we  con- 
ceive, a  correct  proposition.     In  ethics  it  is  no  doubt  true,   but  how  it  can 
aggravate  a  wilful,  deliberate  murder  perpetrated  with  malice  preconceived,  and 
deliberately  perpetrated,  we  are  unable  to  comprehend.    Or  that  it  will  aggra- 
vate what,  in  law,  is  only  manslaughter,  if  perpetrated  by  a  sober  man,  into 
murder  if  committed  by  a  drunken  man,  is  not,  we  conceive,  true.     Or  that  it 
increases  a  minor  offence  to  one  of  a  liiglier  grade  is  not  true.    Whilst  it  is  not 
ground  for  reversing  a  judgment,  it  is  perliaps  calculated  to  prejudice  the  de- 
fendant's case,  and  a  court  migiit  well  omit  to  give  it,  or  at  least  to  modify  it 
before  it  should  be  given."     In  Ferrell  \.  State,^  it  was  sti'u\:  "  The  counsel  for 
.appellant  asked  of  tlie  court  tlie  following  instructions,  viz. :   '  While  intoxica- 
tion is  no  excuse  for  crime,  yet  tlie  jury  must,  in  this  case,  take  into  consideration 
the  intoxication  of  tlie  defendant  in  determining  whether  ho  was  in  a  condition 
to  entertain  a  malicious  design.'    And  also:  "  In  considering  the  attack  (if  j'ou 
find  that  any  was  iiuule  by  the  defendant  on  Scroggins),  you  will  take  into  con- 
sideration iiie  physical  condition  of  the  defendant,  and  whether  from  tliat  con- 
sideration he  was  physically  unal)le  to   use  the  hoe  handle  in    a  dangerous 
manner.'    Both  of  which   the   court  refused,  without    pausing  to  determine 
whether  these  instructions  were  in  all  respects  strictly  accurate,  or  whether  they 
should  have  been  given  iuthe  precise  form  in  which  they  were  asked;  for  be  this 
as  it  may,  we  think  they  were  entirely  sulllcient  to  call  tlie  attention  of  the  court 
to  the  phase  of  the  case  sirggested  by  them;  and  if  they  should  not  have  been 
given  in  the  precise  form  in  whicli  they  were  drawn,  to  which,  however,  we  see 
no  serious  ol)jection,  such  instructions  as  were  approjjriate  and  suitable  to  the 
aspect  of  the  case  suggested  by  them  should  have  been  given.    This,  however, 
was  not  done.    The  court  not  only  refused  to  give  the  charges  asked,  but  instead 
thereof  instructed  the  jury,  *  tluit  drunkenness  is  no  excuse  or  justification,  or 
even  palliation  for  crime,  but  must  be  considered  rather  an  aggravation  of  the 
offence,  and  you  Avill  apply  this  principle  of  law  to  this  case.' 

'<The  erroneous  instruction  given  l)y  the  court,  to  which  we  have  heretofore 
referred,  confounding  to  a  great  extent  the  distinction  between  the  offences  of 
murder  iu  the  first  and  murder  in  the  second  degree,  rendered  it  still  more 
essential,  in  view  of  the  facts  before  the  jury,  that  tjiey  should  have  been  cor- 
rectly instructed  upon  the  points  suggested  in  these  cliarges  asked  by  appellant. 
But  as  we  have  said,  the  court,  instead  of  doing  this,  told  the  jury  that  the  con- 
dition of  the  defendant  at  the  time  of  the  homicide,  the  result  of  intoxication, 
was  an  aggravation  of  the  offence,  and  should  be  regarded  by  the  jury  —  thus  in 
effect  telling  tlieni  if  the  defendant  was  intoxicated  he  miglit  properly  be  con- 
victed of  a  higlier  grade  of  offence,  than  the  facts  otherwise  required;  for  it  will 
be  observed  it  is  the  offence  and  not  its  penalty  v  hich  the  court  tells  the  jury  is 
aggravated  by  ai)peliant's  intoxication.  It  is  nv  less  for  us  to  say  that  the  law 
of  this  State  gives  no  warrant  for  any  such  doct  ne.  While  intoxication  is  cer- 
tainly no  excuse,  much  less  justification  for  crii  >,  it  is  a  startling  idea  tl.  t  the 
bare  fact  of  one  being  in  this  condition  when  the  homicide  is  committed  converts 
murder  in  the  second  into  nuinler  in  the  llrst  degree,  or  will  authorize  If  not 
re(pilre  the  jury  to  impose  the  penalty  of  death  or  confinement  for  life  instead 


l43To.\.  503  (1875). 


DIM  .\K1:NM:SS    no    ACUiUAVATlON. 


747 


Intoxicatiiiii  no  Defence  —  Kxeoptious  to  tlie  Kiilo. 


of  u  term  of  jours.  This  would  bo  direct ly  tlic  reverse  of  tlio  rule  laid  down  by 
the  Code,  iind  would  make  the  fact  that  the;  homicide  was  committed  when  the 
perpetrator  was  iucai)able  of  a  deliberate  intention  and  formed  dosifj;u  to  ta'o 
life,  or  do  otlior  serious  bodily  injury  for  want  of  a  sedate  mind,  au  aggravation 
instead  of  a  nutigatiou  of  the  hcinousness  of  the  offence. 

"The  correct  rule  upon  tlic  subject  is  that,  although  drunkenness  neither  ag- 
gravates nor  excuses  an  act  done  by  a  i)arty  while  under  its  influence,  still  it 
is  a  fact  which  may  affect  both  physical  ability  and  mental  condition,  and  may 
be  essential  in  detorininiug  the  nature  and  chui-acter  of  the  acts  of  the  defendant 
as  well  as  the  puri)ose  and  intent  with  which  thoy  are  done.  Evidently,  therefore, 
the  fact  of  intoxication  at  the  time  the  niattor  in  <iuostion  occurs  may  be  a  fact 
of  little  or  no  signihcanco,  or  of  the  utmost  importance,  as  it  may  connect  itself 
with  or  be  shown  by  the  other  facts  to  bear  ui)on  or  enter  into  the  case.  As 
mere  drunkenness  does  not  relieve  a  party  from  responsibility  for  crime,  when 
the  nature  and  degree  of  it  does  not  depend  upon  the  state  and  condition  of  the 
mind  at  the  time  of  its  perpetration,  the  fact  of  intoxication  is  of  little  or  no  im- 
portance in  cases  of  this  kind. 

"  But  in  the  class  of  offences  in  which  criminality  depends  solely  or  to  a  certain 
degree  upon  the  slate  and  condition  of  the  mind  at  the  time  the  wrongful  act  is 
done,  evidence  of  the  state  and  condition  of  the  mind,  showing  ability  or  inabil- 
ity of  the  nund  to  form  or  entertain  a  sedate  and  ordinate  criminal  design,  is 
certainly  of  the  most  vital  importance  ' 

If  the  testimony  shows  the  killing  is  upon  an  antecedent  grudge  or  pre-exist- 
ing malico;  that  it  is  tlie  residt  of  a  sedate,  dolil)erate  mind  and  formed  design, 
not  cngoudored  in  an  intellect  clouded  and  confused  by  tiio  fumes  of  li(inor,  or 
where  the  deceased,  though  slain  l)y  his  assailant  while  the  latter  is  under  the 
influence  of  liquor,  if  it  ap])ear  that  it  was  taken  merely  to  nerve  luinself  to 
carry  into  execution  his  preconceived  purpose,  the  fact  of  intoxication  is  of  no 
importance,  unless  it  aiils  to  show  more  fully  and  dislinctly  tlie  pre-existing  de- 
sign in  furtherance  of  which  it  has  been  used.  15ut  where  there  is  no  evidence 
of  premeditation,  or  any  n^ason  to  suppose  that  the  act  done  is  not  the  result  of 
design  formed,  as  far  as  the  mind  may  lie  cai)al>le  of  forudng  a  design  while  in 
a  state  of  intoxication  to  such  an  extiMit  as  to  be  incapable  of  cool  reflection,  the 
fact  of  intoxication  is  then  of  the  utmost  importance:  for  if  it  is  clearly  shown 
that  the  purpose  to  take  life  hud  its  inception  and  was  carried  into  effect  wiule 
the  defendant  is  in  a  state  of  mental  confusion,  wiiether  from  drink  or  other 
cause,  wliich  renders  him  incapal)le  of  calm  reflection  or  of  forming  a  dolilierate 
design  to  take  life,  the  offence  committed  cannot  be  murder  in  the  tlrst  degree." 

§  (!I.  Exceptions  to  this  Rule.  —  To  the  general  rule  that  voluntary  drunken- 
ness cannot  excuse  or  palliate  a  crime,  and  evidence  that  the  prisoner  was  intox- 
icated at  the  time  is  therefore  irrelevant,  there  are  several  exceptions,  viz. :  — 

§  C2,  Insanity  Produced  by  Intoxication.  —  Where  the  habit  of  intoxication 
though  voluntary,  has  been  long  continued,  and  has  produced  disease  which  has 


'  People  r.  Eastwood,  i  Kern.  .■?!!■.';   liishop's  (r.  I.mw,  :;oo,  «^  scr/. 


748 


DKIXKENNESS. 


Notes. 


porvertetl  or  dt'stroyed  the  mental  faculties  of  the  accused  so  that  he  is  iiicapa- 
l)le  at  the  time  of  the  commission  of  the  allejjed  crime,  on  account  of  the  disease, 
of  acting  from  motive,  or  distinuuisliing  rii!;iit  from  wronjr,  when  sober  —  in 
short,  insane  —  he  will  not  be  held  accountable  for  the  act  charged  as  a  crime 
committed  while  in  such  condition.'  In  a  Delaware  case  it  was  said:  "The 
frenzy  of  drunkeiniess  is  no  excuse,  but  there  is  a  disease  of  insanity  called 
mania  apotii  which  Uuiy  l^e  the  result  of  a  condition  of  the  system  produced  hy 
habitual  intoxication,  and  yet  Is  not  the  frenzy  of  drunkenness.  The  condition 
of  insanity  must  1)0  taken  with  this  (jualitlcation,  that  if  there  be  a  partial  degree 
of  reason,  a  competent  use  of  it  to  restrain  the  passions  w  hich  produced  the 
crime,  a  faculty  to  distinguish  the  nature  of  actions,  to  discern  the  difference 
between  moral  good  and  evil,  then  the  party  is  responsible  for  his  actions.  The 
question  must  always  be,  did  lie  or  did  he  not  know  at  the  time  he  committed 
the  act  that  he  was  doing  an  immoral  and  unlawful  act?  "  '  In  another  case  in 
the  .s;u  '  ',  tiie  judge  said  to  the  jury:  "This  brings  us  to  what  was  said 

by  I'li  >t;  •'  'or  the  prisoner  in  regard  to  his  defence  on  the  ground  of  mania 

a  poll  ,  i tij  that  subject  the  court  would  say  to  the  jury  that  if  they  were 

satisfied  and  believed  from  the  evidence  which  they  heard  that  the  prisoner  was 
at  the  time  he  conmiHted  the  act  affected  with,  and  lal)oring  under  an  attack  of 
that  disease  v  maiuiy,  ant'  a  brief  and  temporary  nuidness  or  insanity,  the  re- 
sult of  protracted  imrd  drinking  of  spirituous  liquors  for  several  weeks  imme- 
diately preceding  the  commission  of  the  act,  and  that  he  was  thereby  rendered 
positively  unconscious  of  what  he  was  doing,  and  incapable  of  distinguishing 
between  right  and  wrong  with  reference  to  the  act  he  was  then  committing,  it 
would  constitute  in  law  a  complete  and  entire  defence  to  the  whole  prosecution 
and  he  should  be  al)solutcly  acquitted.  But  that  was  a  matter  of  defence  not  to 
be  presumed,  but  must  be  proved  like  any  other  matter  of  defence  in  this  case 
to  the  satisfaction  of  the  jury ;  otherwise,  it  could  be  of  no  avail  to  the  prisoner."' 
And  in  a  later  case  in  the  same  State  it  was  said:  "The  rule  of  law  being  that 
drunkenness  or  intoxication  is  no  excuse  for  crime,  unless  it  is  so  great  as  to 
render  the  party  unconscious  of  what  he  is  doing  at  the  time."  * 

In  Burrow'' s  Case,^  tried  at  the  York  assizes  of  1823,  the  prisoner  being  in- 
dicted for  rape,  urged  that  he  Avas  drunk.  Holhoyd,  J.,  charged  the  jury  as 
follows:  "  It  is  a  maxim  of  law  that  if  a  man  gets  himself  intoxicated,  he  is 
liable  to  the  consequences,  and  is  not  excusable  on  account  of  any  crime  he  may 
commit  when  infuriated  by  liquor,  provided  he  was  previously  in  a  fit  state  of 
reason  to  know  riglit  from  wrong.  If,  indeed,  the  infuriated  state  at  which  he 
arrives  should  continue  and  become  a  lasting  malady,  then  he  is  not  amenable." 

In  liennie^s  Case,^  the  prisoner  was  indicted  for  burglary,  and  urged  in  mitiga- 
tion that  he  was  drunk.  Holkoyd,  J.,  to  the  jury :  "  Drunkenness  is  not  insan- 
ity, nor  does  it  answer  to  what  is  termed    an  unsound    mind,   unless    the 


1  Fisher  v.  State,  64  Ind.  435  (187S); 
Bradley  v.  State,  31  Ind.  492  (1869); 
Cluck  ».  State,  40  Ind.  263  (1872);  Carter  v. 
Btate,  12Tex.  500 ;  Beasley  v.  State,  50  Ala.  149 
(1873) ;  O'Brien  r.  People,  48 Barb.  274  (1867) ; 
Erwin  V.  State,  lOTex.  (A.  j.  ;  700  (1881) ;  and 
gee  post,  pp.  873,  874. 


:  State  V.  Dillahunt,  3  Harr.  (Del.)  651 
(1840). 

3  State  V.  Hurley,  1  Iloust.  Cr.  Cas.  28 
(1858). 

*  State  V.  Till,  1  lloust.  Cr.  Cas.  233  (1867). 

s  Lewin,  75. 

«  Lewin,  76  (1825> 


i 


INSA.MTV   CAUSKD    nV    DRUXKENXESS. 


741  > 


Tho  Kniilish  Casos, 


derangement  which  it  onuses  becomes  fixed  and  continued  by  the  drunkenness 
being  habitual,  and  tliereby  rendering  tlie  party  incapable  of  distinguishing 
between  right  and  wrong." 

In  Reg.  v.  Dixon,^  on  an  indictment  for  murder,  it  being  proved  that  the  pris- 
oner, a  soldier,  shot  his  omcer  through  tlie  head,  the  oidy  evidence  for  the  de- 
fence being  that  the  act  was  sudden,  without  apparent  motive,  and  that  he  had 
been  addicted  to  drink,  and  had  been  suffering  under  depression.  Smith,  J., 
charged  the  jury  that  there  was  no  evidence  of  insanity,  and  the  prisoner  was 
convicted  and  sentenced  to  death. 

In  Seg.  v.  Leigh,  2  tried  before  Ehle,  C.  J.,  in  18GG,  the  prisoner  was  indicted  for 
the  murder  of  Harriet  Ilarton.  It  a|>peared  that  he  had  been  engaged  in  some 
service  in  China,  and  on  his  return  home  had  married  tlic  sister  of  tlie  deceased, 
and  kept  a  public  house.  He  was  a  young  man  of  intemperate  and  irregular 
habits,  and  he  had  entered  upon  a  course  of  senseless  extravagance  and  dissipa- 
tion, accompanied  with  a  great  degree  of  eccentricity  and  absurdity,  but  with  no 
lack  of  sense  or  intelligence  when  he  chose  to  exercise  his  faculties,  and  though 
he  drank  excessively  it  did  not  appear  to  affect  his  head  at  all.  He  rapidly  ran 
through  his  business  and  was  sentenced  to  imprisonment  for  wilful  injury  to  his 
house.  When  he  came  out  of  prison  a  ruined  man,  he  went  down  with  his  wife  to 
Brighton  to  see  his  sister-in-hiw,  tha  deceased,  and  it  appeared  pretty  plainly 
from  the  sequel  that  his  wife  had  complained  to  her  sister  of  the  prisoner's  con- 
duct, for  on  his  appearance  at  the  house  of  his  sister-in-law,  she  showed  the 
strongest  aversion  to  admit  him,  an  aversion  mixed  with  apprehension.  She 
knew  that  he  went  about  armed,  and  she  evidently  regarded  him  as  a  dangerous 
character,  for  it  appeared  that  on  the  day  but  one  before  the  murder,  he  and  his 
sister-in-law  were  heard  talking  together,  and  she  was  heard  to  say:  "You 
shan't  come  in  unless  you  are  searched,  for  you  have  flre-arnis  about  you;"  to 
this  he  replied :  "  What  is  that  to  you,  if  I  choose  to  carry  them  to  protect  my- 
self?" She  said  to  him:  "  You  shan't  come  in  here;  you  are  a  thief,  a  pirate, 
and  a  murderer."  Upon  this  the  prisoner  turned  to  his  wife,  who  was  present, 
and  said  angrily:  "  Who  told  your  sister,  but  you?"  It  was  plain,  therefore, 
that  the  deceased,  at  this  time,  regarded  him  with  aversion  and  apprehension^ 
and  it  appeared  that  It  was  in  this  spirit  they  parted.  This  was  on  the  Tuesday, 
the  30th  of  January,  and  on  the  night  of  the  1st  of  February,  shortly  after  mid- 
night, the  prisoner  went  to  the  house  with  a  loaded  pistol  or  revolver,  and  at 
once  going  up  to  his  sister-in-law,  standing  within  two  feet  of  her,  he  fired  at 
her  through  the  body.  She  cried:  "  Save  me,  save  me!  lam  killed!"  he  fired 
at  her  again  and  shot  her  in  the  body.  His  victim  fell  mortally  wounded  and 
died  the  next  day;  the  prisoner,  after  his  victim  had  fallen,  left  the  house,  and 
shortly  after,  two  of  the  chambers  of  the  revolver  being  still  loaded,  he  resisted 
apprehension  in  the  most  determined  manner,  and  attempted  to  shoot  the  police  of- 
fflcer  by  whom  he  was  arrested.  In  speaking  to  the  police,  he  avowed  premedita- 
tion. Forthe  defence,  insanity  was  set  up;  no  medical  witnesses  were  called  to 
support  it,  and  all  the  evidence  to  sustain  it  was  that  of  one  or  two  witnesses, 
who  had  known  the  prisoner  for  some  years,  and  who  spoke  to  senseless  and  ec- 
centric extravagances  of  conduct,  pulling  his  house  to  pieces,  putting  his  horse  in 


<  llOoz,  Ml  (1869). 


MF.ftF.915. 


7iA) 


DIIUNKKNNESH. 


Notes. 


it  (there  being  no  stiibliufi),  and  tlie  lilic.  But  tliis  evidence  ratlier  sliowcd  ex- 
cesses, tliu  result  of  self-induljJteiice,  tliau  any  natural  defect  of  intelligence, 
and  for  some  of  tlieni,  for  instance,  ills  pulling  the  house  to  pieces,  he  was 
prosecuted  and  punished.  These  acts,  indeed,  were  mostly  committed  when  lie 
was  drunk;  and  aItlioU!;;h  au  attemjjt  was  made  to  show  that  l)y  drinli  lie  brought 
on  fits  of  delirium  tremens,  the  evidence  failed  to  show  either  that  this  was  per- 
manent, or  that  there  was  a  lit  at  the  time.  On  the  contrary,  the  medical  evi- 
dence for  the  prosecution  showed  the  prisoner's  brain  was  not  weakened,  and 
expressions  were  proved  to  have  Ijcen  uttered  by  him  which  proved  premeditation 
and  design,  and  the  medical  otllcer  of  the  government  proved  that  while  he  was 
in  jail  he  had  shown  no  symptoms  of  insanity. 

Eui.K,  C.  J.,  thus  sunmied  up  the  case  to  the  jury.  "  This,"  he  said,  **  was  an 
indictment  for  wilful  murder,  and  the  prosecution  luul  called  before  them  all  the 
eye-witu"  scs  of  t!ie  fact,  whose  evidence  clearly  proved  the  commission  of  the 
crime,  and  our  law  was,  that,  if  a  person  did  an  act  which  amounted  to  that  of- 
fence, it  was  tlie  duty  of  the  jury  to  lind  a  verdict  of  guilty,  nidess  the  prisoner 
could  show  that  the  crime  was  not  one  of  murder.  The  evidence  of  the  eye- 
witnesses clearly  established  that  while  tlie  deceased  woman,  Mrs.  Harton,  was 
on  her  own  premises,  the  prisoner  wont  close  up  to  her  and  twice  flred  at  her, 
causing  her  death.  The  defence  set  up  on  the  part  of  the  prisoner  was,  that  at 
the  time  of  the  fatal  act,  he  was  in  a  state  of  mind  which  prevented  him  from 
l)eing  responsible  for  his  acts.  Our  law  was,  that  a  man  was  responsible  for  his 
acts,  unless  his  mind  was  in  ti  state  wiiich  prevented  him  from  l)eiiig  rcsponsi. 
ble  for  his  acts.  If  he  was  conscious  that  he  was  doing  wrong  at  the  time  when 
he  committed  the  act,  tlien  he  was  responsible,  The  point  was,  the  state  of  his 
mind  at  the  time  when  he  committed  the  act. 

"  Now,  no  doubt  there  was  evidence  of  extraordinary  conduct  some  months  pre- 
vious to  the  time  of  committing  the  act,  and  if  he  had  done  it  wlien  his  conduct 
was  of  that  kind,  it  would  have  l)een  far  more  material  for  consideration;  but 
no  one  was  called  to  prove  that  after  his  coiitluement  in  the  house  of  correction, 
he  was  subject  to  any  fits  of  insanity.  There  was  some  evidence  of  tits,  but 
tliere  was  nolliiiig  to  show  of  what  nature  they  were.  There  was  evidence  of 
drinking,  but  it  did  not  make  him  drunk.  There  was  extravagance  of  conduct, 
no  doubt,  but  not  of  a  mind  so  diseased  as  to  be  incapable  of  distinguishing 
right  from  wrong.  lie  did  no  wrong  to  any  one  up  to  the  time  in  question.  He 
was  his  own  enemy;  his  own  enemy  in  respect  to  money  and  tlie  management 
of  his  own  affairs,  and  the  destroying  of  his  health.  But  there  is  nothing  to 
show  that  he  did  not  know  all  tliis  to  be  wrong.  The  jury  must  all  have  met 
with  persons  who  were  unaccountably  imprudent  in  their  conduct,  but  who  were 
well  aware  that  the  course  they  were  pursuing  was  wrong  and  criminally 
wrong.  The  evidence  to  the  conversation  two  days  before  the  act  in  question, 
was  worthy  of  consideration,  as  showing  a  probable  motive  for  the  act. 

"  The  words  then  used  were  strong  and  powerful,  and  such  as  miglit  raise  ill- 
feeling;  the  evidence  of  the  conduct  before  the  fatal  act,  showed  perfect  sobriety, 
and  apparent  possession  of  sense.  The  evidence  of  the  police  inspector  as  to 
what  occurred  immediately  after  the  fatal  act,  sliowed  a  consciousness  of  an  act 
criminally  wrong,  for  the  prisoner  was  trying  to  resist  arrest,  showing  that  he 
was  well  aware  that  he  had  committed  an  act  whicli  in  law  was  criminal.    Then 


INSANITY   CAUSED    BY    DRUNKENNESS. 


751 


Tlie  American  Cases. 


there  was  the  evidence  of*he  police,  which  was  very  remarkable,  and  tended  to 
show  on  the  one  hand,  premedilat  Ion  and  conselonsness  of  an  act  ciiminally  wrong. 
Then  the  medical  ollleer  of  thofinol  gave  most  important  cvldiiicc  .is  to  tin;  .state 
of  the  prisoner  while  he  ol)served  him,  and  stated  that  lie  had  seen  no  traces  of 
insanity.  Supposing  the  prisoner's  brain  to  have  become  weakened  by  repeated 
attacks  of  delirium  tremens,  he  would  be  more  liable  to  Insaidty.  IJiit  the  pris- 
oner's brain  had  not,  it  ai)peared,  become  weakened;  and  on  the  contrary  he 
was  clear-minded,  sensible,  and  intelligent.  Sueii  was  the  evidence,  and  he  re- 
peated that  unless  it  was  made  out  that  the  prisoner  was  not  In  such  a  state  of 
mind  as  to  be  responsible  for  his  acts,  the  duty  of  the  jury,  was  to  find  him  guilty 
of  the  act  he  committed. 

"  The  question  was,  whether  he  was  or  was  not  responsible  when  he  committed 
the  act  —  not  wliether  lie  was  not  guilty  on  the  ground  of  insanity,  tliat  was  an 
issue  far  too  vague,  indellnite,  and  nndetlned.  The  issue  was,  whether  or  not 
whi'U  he  did  the  act,  he  was  legally  responsible;  in  other  words,  whether  he 
knew  its  nature,  and  knew  that  it  was  wrong.  The  distance,  indeed,  between 
the  extreme  points  of  manifest  mania  and  perfect  sense  was  great,  but  they  ap- 
proach by  gradual  steps  and  slow  degree.  The  law,  however,  did  not  say  that 
when  any  degree  of  insanity  existed  the  party  was  not  responsible,  but  that  when 
he  was  in  a  state  of  mind  to  know  the  distinction  between  right  and  wrong,  and 
the  nature  of  the  act  he  committed,  he  was  responsible." 

Verdict,  guilty  —  Sentence,  death. 

In  Maeonnehey  v.  Stale,\  decided  in  Ohio  in  1855,  the  indictment  was  for 
shooting  with  intent  to  kill,  and  in  his  defence  the  prisoner  gave  evidence  tend- 
ing to  prove  that  at  tiie  time  he  did  the  act  charged  he  was  laboring  under  an 
attack  of  delirium  tremens,  and  asked  the  court  to  charge  that  delirium  tremens, 
although  a  consequence  superinduced  by  antecedent  continued  drunkenness,  is  a 
diseased  state  of  the  mind,  and  exempts  the  subject  from  responsil)ility  for 
crime,  like  insanity  produced  by  any  other  cause.  The  court  refused  to  so 
charge,  and  the  prisoner  was  convicted.  On  appeal  to  the  Supreme  Court  the 
judgment  was  reversed.  "  While  drunkenness  creates  no  exemption  from  crim- 
inal responsibility,"  said  Hartley,  J.,  "and  may  even  exaggerate  the  turpitude 
of  guilt  in  some  cases,  delirium  tremens,  although  the  result  or  consequence  of 
continued  intoxication,  is  insanity  or  a  diseased  state  of  mind  which  affects  re- 
sponsibility for  crime,  in  the  same  way  as  insanity  produced  from  any  other 
cause.  The  reason  that  intoxication  creates  no  exemption  from  crindnal  re- 
sponsibility does  not  apply  to  delirium  tremens  which,  although  like  many  other 
kinds  of  mania,  the  result  of  prior  vicious  indulgence,  is  always  shunned  rather 
than  courted  by  the  patient,  and  is  not  voluntarily  assumed  either  as  a  cloak  for 
guilt  or  to  nerve  the  perpetrator  to  the  commission  of  crime." 

In  United  States  v.  Clarke,*  tried  in  1818  before  the  United  States  Circuit 
Courtsitting  at  Washington,  D.  C,  the  prisoner  was  indicted  for  the  murder  of 
his  wife  by  sliooting  her  with  a  musket  upon  her  return  home  in  the  evening 
from  church.  The  court  instructed  tlie  jury  that  if  they  should  be  satisfied  that 
the  prisoner  at  the  time  of  committing  the  act  charged  in  the  indictment  was  in 
such  a  state  of  mental  Insanity,  not  produced  by  the  immediate  effcts  of  intoxi- 


1  5  Ohio  St.  77. 


2  2  Crancli  C.  C.  158. 


7r>2 


DIIIINKENNE88. 


N'otoH. 


cntin^  drinks,  as  not  to  linvc  bcon  conscions  of  tlic  i^oral  tiirpitndu  of  tho  act, 
tlu'.v  slioiihl  llud  him  not  .millfy.  Tlio  jury  found  liini  yuilly,  and  in;  \va^  kcu- 
tcnced  to  di-utli. 

In  Onllihcr  v.  Gommnnwralth,^  It  was  said:  "  Tiic  Hcvonth  Instruction  that 
'  drunlvonnoMS  can  novcr  l)c  received  as  n  fjrouud  to  oxcuso  or  i»ailiuto  a  crime  ' 
was  accordlnij  to  tlu;  doctrine  recojunlzed  i)y  tiiis  court  in  tlie  case  of  Smith  v. 
Commonwealth,^  delusive  and  erroneous.  Intoxication  may  stidtify  and  partially 
denjonlzc  its  victim,  dethroning  reason,  ronsiuf;  volcanic  passions,  and  either 
paralyzing  or  pervertini;  the  will;  and  therefore  unless  i)rongliton  for  a  malicious 
purpose  it  may  be  when  disabling  entitled  to  some  inlhience  on  the  questions  of 
malice  and  free  volil  Ion.  When  and  how  far  It  should  have  any  such  influence  must 
depend  on  its  motive,  its  degree,  and  its  effect  on  tho  mind  and  the  passions. 
This  qualllled  doctrine  .seems  tons  to  be  dictated  by  policy  and  humanity,  and 
sanctioned  by  reason  and  modern  authority,  and  was,  accordingly,  adjudged  to 
be  the  law  in  the  case  just  cited." 

In  State  v.  McGoni'ja},^  the  prisoner  was  indicted  for  larceny,  the  defence  be- 
ing that  he  was  so  drunk  as  to  render  him  irresponsil)le.  Woottkn,  J.,  charged 
the  jury  "that  drunkenness  was  no  excuse  or  palliation  for  a  crime;  but 
drunkenness  long  continued  produces  the  disease  of  mania  a  potn,  which  de- 
prives the  party  of  reason  and  incapacitates  him  from  distinguishing  between 
right  and  wrong.  In  this  stage,  It  becomes  a  kind  of  insanity.  Tho  jury  would 
have  to  distinguish  between  the  mere  frenzy  of  drunkenness,  and  the  flxed  insan- 
ity produced  by  continued  dissipation.  If  the  prisoner  was  In  the  latter  condi- 
tion, he  could  not  be  held  responsible,  otherwise  he  ought  to  bo  convicted." 
The  prisoner  was  ac(iultted. 

In  Jical  V.  People,*  the  prisoner  being  indicted  for  the  murder  of  John  Smedick, 
evidence  was  offered  at  the  trial  on  tho  part  of  tho  defence  to  show  a  habit  of 
excessive  drinking  l)y  Real  for  days  continuously,  followed  by  periods  of  delirium 
and  sanity,  —  a  condition  of  mind  consequent  upon  drunkeimess.  The  trial 
judge  ruled  that  delirium  tremens  at  or  about  the  time  of  the  homicide,  might  be 
proved,  but  not  tho  general  habit  of  drunkenness  or  Its  consequences,  to  which 
ruling  the  prisoner's  counsel  excepted.  On  appeal  this  ruling  was  afllnned. 
'There  was  no  error,"  said  the  Court  of  Appeals,  "  In  excluding  proof  that  the 
accused  was  In  the  habit  at  times  of  drinking  to  excess,  and  of  the  effect  upon 
his  mind  at  times  produced  by  this  habit.  The  evidence  in  this  respect  was 
properly  confined  within  a  period  of  a  few  days  of  the  transaction.  Within  this 
period  the  accused  was  permitted  to  give  evidence  tending  to  show  that  his  mind 
was  temporarily  unsound,    or  that  he  was  delirious  from  this   cause." 

"lu  Schlenker  v.  State,^  the  following  instruction  given  by  the  court  on  the 
trial  was  complained  of  on  appeal:  "Settled  insanity,  produced  by  Intoxica- 
tion, affects  the  responsibility  in  the  same  way  as  Insanity  produced  by  any  other 
cause.  But  insanity  Immediately  produced  by  intoxication  does  not  destroy 
responsibility  where  the  patient,  when  sane  and  responsible,  made  himself 
voluntarily  intoxicated."    This  Instruction  was  unanimously  approved  on  appeal. 

"  la  the  case  of  State  v.  Hundley,^^*  said  the  court,  "  it  appears  that  the  court 


I  2  DUT.  183  (186S). 
»  1  DUT.  224. 
*  6  Harr.  510. 


•  42  N.  Y.  270  (1870). 

•  9  Xeb.  241  (187V). 

•  46  Mo.  414. 


INSANITY    (ArSKI)    llV    DIM  NKKNNI.SS. 


7:).", 


Till'  Aiiicrifim  <  "ascs. 


liadliistniclc'dtlic  jury  '  tliiil  If  llicy  believed  from  Mie evidence  that  tiie  dofonrldnt 
was  laijoriii^  under  a  teni|)orary  freu/.y  or  Insanity  at  tiii!  time  of  the  killing  of 
Hoyer,  wiiich  was  the  linniediatu  result  of  Intoxleatini?  li(|Uors  or  iiarcoties,  he 
was  jiuilty.'  And  thu  court,  connnentini^  upon  this  instruction,  said:  'Tins 
Instruction  was  nnol)jectional)le,  for,  us  we  liavi;  alrea<lv  seen,  temporary  insan- 
ity, produced  immediately  l)y  Intoxication,  does  not  destroy  respousihility  where 
the  accused,  wiien  sane  and  responsible,  made  liimself  voluntarily  drunk.  But 
tlio  crime  to  I)e  punisiia!)le  under  such  (•Ireumstances  must  take  jiiaee  and  l)e  the 
iminediatu  result  of  a  tit  of  intoxication,  and  wliile  it  lasts,  and  not  the  residt  of 
insanity  remotely  occasioned  by  previous  bad  lial)its.'  The  only  sui)stanlial 
difference  between  tiu!  law  as  tlius  pronounced  and  the  instruction  com|)lained 
of  is  in  the  omission  fr.  ■II  the  latter  of  tlie  (lualifyiny  clause  Uinitin;;  responsi- 
bility to  cases  of  tempjua.y  insanity  or  fren/.y;  but  while  under  different  cir- 
cumstances this  omission  ndi;lit  have  been  a  serious  matter,  it  certainly  was  of 
no  consequence  under  the  testimony  in  tins  case.  There  was  not  a  sylial)le  of 
evidence  of  the  existence  of  settled  insanity.  Tin!  utmost  that  was  (claimed,  or 
that  tliere  was  the  least  testimony  to  estal>lish,  was  a  mere  temporary  frenzy  or 
condition  of  irresponsibility  on  tlie  part  of  the  prisoner.  There  is,  therefore,  in 
this  matter  no  ground  of  complaint.  Error  is  alsoalle;:cd  because  of  tlie  refusal 
of  the  court  to  {I've  several  instructions  to  the  jury  refpiested  on  l)ehalf  of  the 
prisoner.  By  the  first  of  these  it  was  sought  to  make  his  voluntary  intoxication, 
under  certain  circumstances,  a  complete  excuse  for  the  homicide.  There  was 
no  error  in  this  refusal,  for  the  court,  as  we  have  already  seen,  had  already 
charged  upon  this  point,  and  laid  down  the  law  correctly,  recognizing  the  well 
known  and  salutary  maxims  of  our  laws,  that  crimes,  committed  under  the  influ- 
ence of  Intoxication,  do  not  excuse  the  perpetrator  from  punishment."  * 

In  Bailey  v.  State,'  the  prisoner  Avas  indicted  for  grand  larceny.  The  following 
instruction  was  given  on  the  trial:  "It  is  a  settled  principle  that  voluntary  drunken- 
ness Is  not  an  excuse  for  a  criminal  act  committed  while  the  intoxication  lasts, 
and  being  its  immediate  result.  Such  drunkenness  is,  in  itself,  u  wrongful  act, 
for  the  immediate  consequences  of  which  the  law  will  hold  the  party  by  con- 
struction guilty  of  such  intent.  This  principle  applies  even  to  a  case  where  the 
party  is  so  besotted  by  liquor  as  to  be  irrational  at  the  time  of  the  commission 
of  the  crime.  But  when  the  act  is  performed  by  an  insane,  but  not  at  the  time 
an  intoxicated  person,  which  if  committed  by  a  sane  person  would  be  a  crime, 
such  act  of  the  insane  person  is  not  held  to  be  a  crime,  though  the  insanity  was 
remotely  produced  by  previous  habits  of  gross  intemperance."  On  appeal  this 
was  held  wrong.  "The  law,  as  it  was  evidently  intended  '<>  be  stated  by  this 
instruction  to  the  jury,"  said  the  court,  "  is  in  full  accord  v,  :tli  the  rulings  of 
this  court,  and  with  the  weight  of  authority;  but  we  fear  that  in  the  case  under 
consideration  the  jury  may  have  been  misled  by  an  inapt  use  of  words  in  the  latter 
part  of  the  instruction.  The  bill  of  exceptions  states  that '  there  was  evidence  before 
the  jury  tending  to  show  that  the  defendant  was,  at  the  time  of  the  commission  of 
the  offence,  intoxicated,  and  his  mental  faculties  seriously  impaired  by  a  long 
and  habitual  course  of  intoxication  and  drunkenness.'  If  from  this  evidence  the 
jury  found  that  the  defendant's  mind  was  so  far  destroyed  by  his  long  continued 


1  Beck's  Med.  Jurii.,  Tol.  1,  p.  333. 
48 


0  26  Ind.  432(1366). 


754 


niaXKENNKSS, 


N«)tt(H. 


Imblt  of  ilrmikcniu'Hs  as  to  ri'iidcr  liiin  niontally  iiironipctpnt,  Ititcntlonally  and 
knowiiiyly  to  coiiuiilttlu!  lanudiy,  tlu-n  tlio  deft'iiilant  should  have  bi'on  acfuilttod, 
altlioiifjh  lie  was  Intoxicated  at  the  tlino  hu  took  the  jiropcrty.  The  present  In- 
toxieatlon  must  not  be  the  cause  of  tiie  mental  Incapacity;  but  if  that  mental 
Incapacity  already  exists  present  intoxication  will  not  render  the  person  liable. 
We  are  not  clear  that  the  lan^uai;c  Inadvertently  used  l)y  the  court  m'  ■•  'lot  iid- 
niit  of  a  different  construction,  and  it  may,  therefore,  have  misled  th  ." 

§  (If!.  Deerrees  of  Murder  —  Premeditation  and  Deliberation.  —  Whore  the 
crime  of  nnirder  is  divided  by  statute  into  decrees,  the  hiizlier  decree  reciuiring 
|iroof  of  delil)eration  and  premeditation,  evidence  of  intoxication  is  held  admis- 
sible upon  the  (piestion  whether  thu  act  was  committed  with  these  requisites.' 

In  L'inrrrtdn  v.  People,''  tliu  prisoner  was  indicted  and  convicted  of  the  mur- 
der of  his  wife.  On  appeal  to  the  Supreme  C^ourt  It  was  .said:  "The  remaining 
request  la  in  reference  to  the  mental  condition  of  tho  pri.sonei  arising  from  his  In- 
toxication, which  the  Tlecorder  was  re<|iiested  to  instruct  the  jury  might  take  into 
consideration  in  determining  whether  he  was  al)le  to  form  an  intent  to  kill,  or  a 
premeditated  design  to  effect  death.  The  evidence  established  that  tho  prisoner 
had  been  drinking  intoxicating  licpiors  for  some  days;  and  that  he  was  very  much 
intoxicated  at  one  o'clock,  some  four  or  live  hours  before  the  probable  time 
when  the  killing  occurred.  Carron,  one  of  the  witnesses,  saw  him  go  out  of  the 
house,  leaving  his  wife  there  dead  from  violonce  which  he  had  inllictc  ami  he 
re(|uired  no  assistance  to  walk  ;  neither  doing  anything  to  call  for  a  '•k,  so 

faras  It  appears  from  tho  evidence,  nor  making  any  observation;  b  wing 

sufllcient  to  conceal  his  crime  for  several  hours,  and  until  her  death  was  discov- 
ered, and  the  alarm  given,  at  or  about  ten  o'clock  in  the  evening.  After  passing 
the  evening  at  different  i)ublie  houses  from  the  time  he  left  his  own  rooms 
after  the  murder  (between  six  and  seven  o'clock),  until  ten  o'clock,  ho  went 
to  the  residence  of  the  sister  of  his  deceased  Avife,  and  informed  her  that  his  wife 
was  dead.  He  then  returned  to  his  own  rooms,  and  neither  did  nor  said  any- 
thing tending  to  show  any  want  of  his  usual  Intelligcuco  or  understanding,  so  far 
as  ai)poars  from  the  evidence.  There  are  few  instances  of  persons  who  have,  in 
a  state  of  intoxication,  taken  the  life  of  anothrr  who  could  refrain  from  saying 
or  doing  something  which  would  tend  to  inculpation  for  nearly  four  hours  after 
the  commission  of  the  act.  There  Is  no  evidence  tending  to  establish  the  ex- 
istence of  any  mental  disorder  or  aberration  at  the  time  of  the  offence  committed. 
There  was  no  evidence  to  show  that  tho  will  of  the  prisoner  was  not  entirely  the 
regulator  of  his  conduct.  The  rule  appears  to  bo  that  drunkenness  is  no  excuse 
for  crime,  and  that  the  person  who  is  voluntarily  in  that  condition  must  take  the 


>  Jones  r.  State,  29  Ga.  594  (1860) ;  Hopt  v. 
People,  104  U.  .S.  6:!1;  State  v.  Johnson,  40 
Conn.  136  (1873) ;  People  v.  Lewis,  36  Cal. 
621  (1869) ;  People  v.  Nichol,  34  Cal.  212  (1867) ; 
People  V.  King,  27  Cal.  507  (1865);  People  v. 
Williams,  43  Cal.  344  (1872) ;  I'eoplc  v.  Cclcn- 
cia,  21  Cal.  544  (1863) ;  Curry  v.  Com.,  2  P.ush, 
67  (1867) ;  Swan  r.  State,  4  Humph.  1.S6;  Pir- 
tic  V.  State,  9  Humph.  663   (1849);  Hailc  v. 


State,  11  Humph.  156  (1860) ;  Cart^vright  ». 
State,  8  Lea,  370  (1881);  Lancaster  v.  State» 
2  Lea,S76  (1879) ;  Schlencker  ».  State,  9  Neb. 
241  (1879) ;  Kelly  v.  Com.,  1  Grant's  Cae.  484 
(1868) ;  Kcenan  v.  Com.,  44  Pa.  St.  66  (1862) ; 
Jones  V.  Com.,  75  Pa.  St.  403  (1874) ;  Colbath 
V.  State,  2  Tex.  (App.)  391  (1877);  People  v. 
Odell.l  Dakota,197  (1875) ;  see/ws*.  pp.873,874. 
-  6  Park.  209;  50  Barb.  206  (1867). 


AS    All'K("riN'(»    DKUKKK    <»r   <  IM.MK. 


Hi 


l'(()|ilf  r.  Uiittliifi. 


conHCMiui'iiccs  of  Ills  own  nets.'  It  appoars,  too,  from  tlic  same  casi,  tUal  In- 
t()xl(;atloii  iii;iy  he  adverted  to  when?  '  you  would  Infer  a  malicious  intent,'  or 
where  th(!  accused  has  l)oen  a^^ravated  hy  the  (•(mduct  of  tlio  deeeased,  hut  not 
where  the  kllllm^  was  caused  hy  the  use  of  a  danjierou.s  instrument.  The  evi- 
dence  of  inloxleatlou  Is  admlssli)le  In  every  trial  for  murder,  l)eeausf  it  may 
tenet  to  c;ist  lij^lit  upon  the  acts,  oljservatlons,  or  cireumstanei's  atleudlni^  the 
(cluing.  lutoxleatlon  must  result  In  a  fixed  mental  disease  of  some  eontluuancc 
or  duration  before  it  will  (!d<e  effect  to  relieve  from  responsibility  for  crime. 
There  was  no  error  in  refusing  to  charge  as  reipiested  upon  tlie  subject  of  in- 
toxication." 

In  I'coplo,  V.  Batting,'^  tri  I  m  New-  York,  In  1875,  tlic  prisoner  was  indicted  for 
murder.  Ills  intoxicati  ii  at  the  time  being  urged  as  an  excuse,  Wi:stii1!<m>k,,I,, 
after  reading  to  the  jury  extracts  from  the  earlier  cases  of  People  v.  Eogrrs,'^  and 
Kenny  v.  People,*  charged  them  as  follows;  "  It  is  said  in  his  behalf  that  he  was 
not  conscious  of  what  he  did  do;  that  ills  mind  had  become  cra/.ed,  and  the 
brain,  wliieh  ordinarily  directed  and  controlled  all  his  movements  was  fired  by 
rum,  so  that  In;  is  not  res|)onsil)le  for  the  act  he  did  do.  However  strong  the 
argument  may  be  In  the  forum  of  conscience,  in  tlie  dispensation  of  criminal 
justice  it  can  find  no  place.  It  would  not  do  to  expose  society  to  a  doctrine  .so 
pernicions  as  this.  It  would  never  answer  for  us  to  say,  that  a  party  who,  in  a 
drunken  freak  comes  into  your  house  and  murders  you  whilst  you  are  Iiarmless 
and  inoffensive  sliould  go  free  and  unpunished.  Life  is  too  sacred  and  too  dear, 
too  valuable  a  gift  from  tlic  Father  and  Source  of  all  life  to  be  taken  In  this 
manner.  The  books  contain  but  one  rule  ujjon  this  question  from  the  earliest 
time  down  to  the  jiresent,  and  that  is,  if  a  person  voluntarily  becomes  drunk  he 
shall  be  accountable  for  what  he  does  wliile  in  that  condition.  This  is  for  the 
purpose  of  preventing  men  from  becoming  drunk;  from  putting  themscdves  in 
a  condition  where  they  sliall  be  like  beasts  preying  upon  society.  Human  safety, 
human  life,  and  the  protection  of  the  citizen  requires  this  rule.  Without  this, 
society  could  not  exist." 
After  reading  an  extract  from  People  v.  Rogers,  the  judge  continued:  — 
"  In  the  good  sense  of  all  this  which  has  been  said  by  our  highest  court,  the 
judgment  and  conscience  of  every  right-minded  man  must  concur.  It  would 
never  do  to  proclaim  from  this  court-room,  that  he  who  voluntarily  takes  that 
which  deprives  him  of  reason,  and  makes  him  a  wild  beast,  sliall,  if  he  violates 
the  law  whilst  in  that  condition,  suffer  none  of  the  consequences  of  his  crime. 
Such  a  person  has  first  broken  the  obligation  which  he  owes  to  his  fellows  in 
becoming  drunk,  and  when  in  that  state  he  perpetrates  a  crime,  it  is  no  excuse 
but  rather  an  aggravation  of  the  offence.  That  is  the  law.  It  should  be  heeded 
here  and  by  all  the  public  upon  whose  ears  these  words  shall  fall.  At  common- 
law,  then,  if  you  found  these  facts  as  I  have  detailed  them,  and  if  you  found  the 
intent  as  the  law  requires  you  to  find  it,  this  man  would  have  been  pronounced 
guilty  of  murder,  and  his  life  would  have  paid  the  forfeit  of  the  crime  which  he 
has  committed.  More  recently,  however,  in  this  State,  and  in  the  year  1873,  the 
Legislature  have  seen  fit  to  divide  the  crime  of  murder  into  two  degrees,  the 


'  People  V.  Rogers,  18  N.  Y., 
»  49  How.  I'r.  392. 


^  18  N.  Y.  9. 
*  31  N,  Y.  330. 


7r)() 


DRUNKENNESS. 


Notes. 


one  where  the  intent  to  take  life  was  duliberatc  intent;  tlio  otlicr,  when  there  is 
a  single  intent  without  the  deliberation  and  coolness  which  now  marks  the 
former,  and  which  is  the  element  making  the  crime  of  murder  in  the  first  degree. 
For  example  if  a  man  deliberately,  plans  the  death  of  a  fellow-being,  and  lays  in 
wait  for  him,  and  when  the  person  comes  along,  suddenly  springs  upon  and  kills 
him;  or  where  it  is  effected  by  poison  given  by  degrees  at  different  times  and  on 
different  occasions,  you  can  readily  see  tlie  difference  between  such  a  case  and 
that  of  a  person  who  under  the  intent  of  an  excitement  strikes  a  blow.  You  can 
jit  once  see,  there  is  a  wide  moral  difference  between  these  two  classes  of  crimes. 
The  law  has  now  marked  and  defined  the  two  by  a  different  species  of  punish- 
ment.   I  will  read  you  our  present  statute." 

Judge  Wkstbuook,  read  the  statute  as  follows-.  "When  perpetrated  from  a 
deliberate  and  premeditated  design  to  effect  the  death  of  the  person  killed  or  of 
any  human  being."  The  charge  continued :  "That  is  to  say  not  only  must  the 
homicide  be  premeditated,  but  it  must  be  deliberately  premeditated.  In  the 
coolness  of  the  blood,  in  the  exercise  of  the  judgment  and  the  reason  the  slayer 
should  plan  and  determine,  if  the  act  is  to  bo  declared  murder  in  the  first  degree. 

"In  other  words,  to  convict  now  of  the  crime  of  murder,  in  the  first  degree,  to 
the  element  of  intent  must  be  added  that  of  deliberation,  and  when  this  is  want- 
ing the  highest  grade  of  the  crime  has  not  been  attained.  Where  the  intent  to 
slay  is  present,  but  the  "  deliberate  and  premeditated  oosign  "  is  absent,  the 
crime  is  only  murder  in  the  second  degree.  This  is  the  change  our  statute  has 
made.  Formerly,  in  every  case  of  homicide,  where  the  intent  to  kill  was  present, 
and  there  were  no  circumstances  rendering  the  killing  justifiable,  the  crime  was 
murder,  of  which  there  was  but  a  single  grade,  and  but  one  penalty  —  death. 
Now  the  grade  of  crime  which  forfeits  the  life  of  the  slayer,  has  only  been  reached 
where  the  jury  find  that  the  intent  is  the  result  of  deliberation  and  premeditation. 

"  In  fixing  the  grade  of  crime  of  which  the  prisoner  is  guilty,  the  evidence  of  his 
intoxlv-.icion  becomes  verj'  important,  and  is  to  be  carefully  weighed.  While  the 
law  justly  holds  the  offender  responsible  for  the  crime  of  murder,  though  he  was 
drunk  when  the  act  was  committed,  it  will  not  be  guilty  of  the  injustice  of  say- 
ing that  when  he  was  crazed,  furious  and  wild  from  intoxicating  drink,  and  the 
act  was  committed  under  the  influence  of  a  drunken  frenzy,  that  it  was  deliberate 
as  well  as  premeditated.  The  coolness  of  the  intellect  is  gone,  and  a  person  in  that 
state,  ordinarily,  is  not  capable  of  the  deliberation  which  must  mark  this  crime. 
In  other  words,  it  is  the  premeditation  of  excitement  and  not  that  of  deliberation. 
I  will  read  to  you  again,  to  give  my  views  more  fully,  from  Wharton's  American 
Law  of  Homicide : —  ^ 

"'Intoxication  when  existing  to  a  sufficient  extent  to  prevent  deliberation, 
lowers  the  offence  to  the  second  degree  excepting  the  case  of  murder  which 
happens  in  consequence  of  actual  or  attempted  arson,  rape,  robbery,  or  burglary. 
Says  Judge  Lewis,  now  of  the  Supreme  Court  of  Pennsylvania,  a  deliberate  in- 
tention to  kill  is  the  essential  feature  of  murder  in  the  first  degree.  When  this 
ingredient  Is  absent,  where  the  mind  from  intoxication,  or  any  other  cause,  is 
deprived  of  its  power  to  form  a  design  with  deliberation  and  premeditation,  the 
offence  is  stripped  of  ihe  malignant  features  required  by  the  statute  to  place  it 


« 


'  p.  369. 


AS   AFFECTING    DEGREE    OF   CHIME. 


757 


The  Missouri  Doctrine. 


on  the  list  of  capital  crimes;  and  neither  courts  nor  juries  can  lawfully  dispense 
with  what  the  act  of  Assembly  requires.'  " 

Judge  Wf.'jthkook  continued:  "  I  charge  you  that  to  be  the  law  of  this  case. 
Whilst  you  cannot  receive  the  evidence  of  drunkenness  to  excuse  the  crime  or  to 
make  it  less  than  murder  in  the  second  degree,  yet  you  can  receive  it  for  the 
purpose  of  showing  that  the  party  did  not  deliberately  premeditate.  Now,  what 
is  the  evidence  upon  this  question?  It  would  seem  that  the  day  previous  to  this 
occasion  the  prisoner  had  been  at  work  for  Mr.  Hasbrouck.  On  his  way  home 
he  took  probably  his  tirst  glass  of  liquor.  The  next  morning  at  eight  o'clock  he 
was  in  a  nervous  condition,  sitting  in  the  bar-room,  at  Steen's,  and  from  that 
hour  through  the  entire  day,  he  seems  not  to  have  been  about  his  ordinary  busi- 
ness, but  simply  upon  '  a  spree; '  he  became  wild,  furious,  nervous,  active,  so 
drunk  that  he  staggered  against  the  fence,  and  at  the  time  he  was  leaving  the 
Saxton  House,  for  the  purpose  of  getting  the  weapon,  he  was  so  much  under  the 
influence  of  liquor  that  he  could  scarcely  walk.  After  obtaining  the  weapon  he 
went  to  the  Shaffer  House,  and  from  his  conduct  and  actions  there  I  leave  it  to 
you  to  say  whether  he  was  or  was  not  in  a  condition  of  mind  or  body  during 
which  he  could  deliberate  and  premeditate.  And  whilst  this  is  a  question  of 
fact,  which  you  must  decide,  I  submit  to  you,  nevertheless,  the  proposition 
whether  the  undisputed  evidence  in  this  case  does  not  clearly  mark  this  offence 
as  one  of  murder  in  the  second  degree  only.  Of  course,  the  whole  qviestion  is 
with  you. 

The  prisoner  was  found  guilty  of  murder  in  the  second  degree. 

In  Norfleet  v.  State,^  the  court  instructed  the  jury  that  drunkenness  might  be 
considered  by  them  "for  the  purpose  of  determining  whether  the  killing  is  re- 
duced from  murder  in  the  first  degree  to  murder  in  the  second  degree,  but  it 
cannot  be  so  considered  by  the  jury  to  determine  whether  the  killing  be  reduced 
below  murder  in  the  second  degree,  or  from  that  to  manslaughter."  In  the 
Supreme  Court  it  was  said:  "  The  principle  as  here  stated,  with  reference  to  the 
facts  of  this  case  is  correct,  and  in  strict  accordance  with  the  doctrine  of  the 
case  of  Firtle  v.  State,^  which  is  so  full  and  explicit  upon  this  general  subject 
that  nothing  more  can  be  added." 

In  Missouri  intoxication  or  drunkenness  can  neither  excuse  nor  extenuate  a 
crime,  and  cannot  be  taken  into  consideration  by  a  jury  for  either  of  such  pur- 
poses, "  However  differently  the  question  may  have  been  elsewhere  determined 
we  are  not  disposed  to  overthrow  the  rule  thus  established  in  this  State,  believ- 
ing it  to  rest  upon  reason  and  authority,  and  that  any  departure  from  it  Avould 
neither  be  in  the  interest  of  a  higher  civilization,  nor  promotive  of  the  best 
interests  of  society,  nor  conducive  to  the  ends  of  justice."  3  Therefore,  drunk- 
enness will  not  repel  any  inference  of  malice  and  premeditation  arising  from 
other  facts  in  the  case,  or  mitigate  the  offence  to  a  crime  of  a  less  degree.* 

In  Sex  v.  Griridley,^  which  was  tried  before  Holkoyd,  J.,  at  the  Worcester 
summer  assizes  in  1810,  tlie  learned  judge  said  that  "though  voluntary  drunk- 


»  4  Sneed,  345  (1867). 
«  9  Humph.  663. 

3  State  r.  Edwards,  71  Mo.  324  (1879),  cit- 
ing State  V.  Harlow,  21  Mo.  446 ;  State  v.  Cross, 


27  Mo.  332;  State  v.  Hundley,  46  Mo.  416; 
State  t'.  Dearing,  (»  Mo.  fi.30. 

<  State  I'.  Ucaiing,65  Mo.  530  (1877). 

■'  MS.  opinion  cited  in  1  Kusscll  on  Crimes, 
12. 


758 


DRUNKENNESS. 


Notes. 


cnness  cannot  excuse  from  the  commission  of  crime,  yet  where,  as  upon  a  charge 
of  miirtlor,  the  material  question  is  whetlier  an  act  was  premeditated  or  done 
only  with  sudden  lieat  and  impulse,  the  fact  of  the  party  being  intoxicated  is  a 
circumstance  proper  to  be  talieu  into  consideration."  Sixteen  years  later  this 
ruling  was  cited  to  Park,  J.,  by  the  counsel  for  the  prisoner  in  liex  v.  Carroll.^ 
There  the  prisoner  was  Indicted  for  the  murder  of  Elizabeth  Browning.  Park, 
J.,  in  instructing  the  jury,  referring  to  the  ruling  of  Holroyd,  J.,  in  Eex  v. 
Grindley,  said :  "  Highly  as  I  respect  that  late  excellent  judge,  I  differ  from  him, 
and  my  brother  Littlkdaij5  agrees  with  me.  He  once  acted  upon  that  case,  but 
afterwards  retracted  his  opinion,  and  there  is  no  doubt  that  that  case  is  not  law. 
I  think  that  there  would  be  no  safety  for  human  life  if  it  were  to  be  considered  as 
law."    The  prisoner  was  found  guilty  and  executed. 

In  Connecticut  it  is  held  that  intoxication  does  not  as  a  matter  of  law  disprove 
the  existence  of  malice ;  but  it  is  evidence  to  show  that  such  malice  did  not  exist. 
In  the  case  of  murder  in  the  second  degree,  wliich  rests  on  implied  malice,  the 
jury  may  find  the  existence  of  malice,  though  the  prisoner's  condition  at  the  time 
disproves  express  malice.'^ 

It  is  held  in  Illinois  that  as  it  belongs  to  the  jury  in  that  State  to  fix  the  pun- 
ishment for  murder  which  may  be  eitlier  death  by  hanging  or  imprisonment  for 
life,  it  is  computent  to  prove  at  the  trial  that  the  accused  was  intoxicated  at  the 
time  of  the  homicide.  "  It  is  important,"  said  the  court,  "  that  all  the  concomi- 
tant circumstances  of  the  act  committed  —  the  condition  of  the  prisoner  at  the  time 
among  the  rest,  as  tending  to  give  cliaracter  to  his  conduct,  so  far  as  they  may 
be  regarded  as  part  of  the  res  (/esto,  should  be  laid  before  the  jury  that  as  near 
as  may  be  they  may  see  the  crime  as  it  is  —  the  precise  complexion  of  it  —  in  order 
that  they  may  intelligently  graduate  the  punishment.  But  proof  of  intoxication 
at  other  times  is  properly  rejected."  ' 

§  64.  Relevant  on  Question  of  Intent.  —  So  evidence  of  intoxication  is  rele- 
vant on  the  question  of  intent.*  "  Drunkenness  certainly  does  not  excuse  or 
palliate  any  offence.  But  it  may  produce  a  state  of  mind  in  which  the  accused 
would  be  totally  incapable  of  entertaining  or  forming  the  positive  and  particular 
intent  requisite  to  make  out  the  offence.  In  such  a  case,  the  accused  is  entitled 
to  an  acquittal  of  the  felony,  not  because  of  his  drunkenness,  but  because  he  was 
in  a  state  of  mind  resulting  from  drunkenness,  which  affords  a  negation  of  one 
of  the  fcts  necessary  to  his  conviction.*  If  at  the  time  of  taking  property,  a 
person  is  so  under  the  influence  of  intoxicating  liquor  tliat  he  is  unable  to  form 


1  7C.  A  P.  145(1835). 

s  State  t>.  Johnson,  41  Conn.  584  (1874). 

3  naffertyv.  People,  66  111.  118  (1872). 

<  Roberts  v.  Peoi)le,  19  Mich.  401  (1870) ; 
State  r.  Bel!,  29  Iowa,  316  (1870) ;  State  v. 
Maxwell ,  42  Iowa,  208  (1S7.'5) ;  Wenz  v.  State, 
1  Tex.  (App.)  ,31'.  (187(5) ;  Loza  v.  State,  1  Tex. 
(App.)  488  (1877) ;  U.  S.  v.  Bowen,  4  Cranch 
C.  C.  604  (1835) ;  State  r.  Coleman, 27  La.  Ann. 
691  (1875);  Plate  v.  Triva.'^^,  32  La.  Ann.  1086 
(36  Am.  Uep.  2',)3)  (1880).    Con/ra,  O'llerrin 


V.  State,  14  Ind.  420  (I8C0) ;  Dawson  r.  State 
16  Ind.  428  (1861).  As  to  the  relevancy  of 
drunkenness  uu  the  quetitioii  of  malice  see 
Id.;  Nichols  v.  State,  8  Ohio  St.  435  (1858); 
Shannahan  v.  Com.,  8  Bush,  463;  8  Am.  Uep. 
465  (1871) ;  and  see  post,  p.  874. 

<'  Mooney  v.  State,  33  Ala.  419  (1869),  citing 
Swan  r.  Slate,  4  ilumph.  l:iO;  Pirlle  v.  Slate, 
9  Ilumph.  fi()3 ;  Pignian  v.  State,  14  Ohio,  55.')  '< 
U.  S.  r.  Kondcnbush,  Baldw.  514;  Pennsyl- 
vania V.  McFall,  Add.  256  (1797). 


RELEVANT   ON   QUESTION  OF    INTENT. 


759 


The  American  Cases. 


a  felonious  intent,  he  cannot  be  guilty  of  larceny.*  And  •where  a  person  Is  in- 
dicted for  voting  twice  at  an  election,  his  druulccnncss  is  relevant  on  the  ques- 
tion of  intent.'" 

In  State  v.  Schingen,^  the  prisoner  was  convicted  of  stealing  property  from  his 
master.  In  the  Supreme  Court  it  was  said:  "There  was  some  evidence  which 
tended  to  show  that  the  defendant  was  intoxicated  at  Oshkosh,  where  he  offered 
the  property  for  sale.  And  the  court  was  asked  to  charge  the  jury,  if  tliey  found 
that  lie  was  sober  at  the  time  the  property  Avas  delivered  to  him  and  that  he  then 
had  no  intention  to  convert  it  to  his  own  use,  but  afterwards  became  so  intoxi- 
cated that  he  did  not  know  the  consequences  of  his  acts,  and  while  in  this  con- 
dition disposed  of,  or  offered  to  dispose  of  the  property,  that  they  should  dnd 
him  not  guilty.  The  court  refused  to  give  this  instr  iction,  but  charged  the  jury 
that  the  intention  of  the  defendant  in  tlie  commission  of  tlie  act  was  the  gist  of 
the  crime  of  larceny,  and  that  a  person  who,  from  drunkenness  or  other  causes, 
may  have  lost  his  understanding,  cannot  in  contemplation  of  law  ho  accountable 
for  his  intention;  that  although  drunkenness  was  no  excuse  for  the  commission 
of  many  crimes,  yet  it  was  of  great  importance  us  affecting  the  question  of  in- 
tention, and  therefore,  if  they  should  find  that  the  defendant  was  so  drunk  as  to 
be  unable  to  form  any  intention  at  the  time  he  offered  to  dispose  of  the  prop- 
erty, he  should  bo  acquitted,  unless  they  were  satisfied  of  the  further  fact  that 
he  had  formed  the  intention  to  steal  while  in  the  possession  of  his  reasoning 
powers.  We  are  satisfied  that  tlie  Circuit  Court  cliarged  the  jury  upon  the  point 
of  drunkenness  quite  as  favorably  to  the  defendant  as  the  law  would  allow.  The 
jury  were  told  that  if  tiie  defendant,  at  the  time  he  offered  tlie  property  for  sale, 
was  so  drunk  as  not  to  know  what  he  Avas  doing,  tlien  he  should  be  acquitted, 
unless  the  evidence  showed  that  the  felonious  intent  existed  when  he  was  in  the 
full  and  undisturbed  possession  of  his  mental  faculties.  We  certainly  think 
there  was  nothing  in  all  this  of  wliich  the  defendant  can  complain." 

In  Henslee  v.  State,*  where  the  charge  was  larceny  in  stealing  a  gun,  the  jury 
•were  instructed  that  •*  if  the  defendant  was  so  much  under  tlie  influence  of 
•whisky  as  not  to  be  conscious  of  wliat  he  was  doing  when  he  took  the  gun,  tlien 
he  would  not  be  in  a  condition  of  mind  to  be  guilty  of  larceny.  This  charge  was 
said  by  the  Supreme  Court  to  be  more  favorable  to  the  prisoner  than  he  was  en- 
titled to,  in  view  of  the  fact  tliat  he  Avas  voluntarily  intoxicated,  and  there  being 
nothing  to  show  tliat  he  suffered  from  delirium  tremens  or  other  mental  incapac- 
ity." 

In  State  v.  Carvey,^  the  defendant's  counsel  requested  the  court  to  charge  that 
"if  Garvey  was  in  such  a  state  of  mind  from  any  cause  tliat  he  did  not  know 
whu,t  liu  «,, as  doing"  they  could  not  convict.  The  instruction  was  given  with 
tiie  qualification  that  "if  the  defendant  did  not  know  what  he  was  doing  from 
being  in  a  state  of  insensibility,  the  jury  could  not  convict,  but  otlierwisi',  if 
from  excitement  or  madness,  tlie  immediate  consequence  of  indulgence  in  strong 
drink."  On  appeal  this  was  held  to  be  (>rror.  "  It  does  not  appear,"  said  AVii.- 
sox,  C.  .T.,  wlio  delivered  the  opinion,  "  tliat  Garvey  became  intoxicated  with  a 
view  to  the  commission  of  tlie  crime,  or  that  before  Ids  intoxication  he  hud  any 


1  Wood  V.  State,  34  Ark.  341  (187!)). 
'-'  l'coi)le  r.  Man-is,  29  Cal.  678  (1866). 
soe  .state  v.  Welch,  21  Minn.  22  (1874). 


3  20  Wis.  74(1865). 
Hut  *  Sllcisk.  202  (1871). 

<>  11  Minn.  1.54  (1866). 


7(U) 


D  HUN  KEN  NESS. 


Notes. 


intention  of  committinij;  sucli  crime.  Tlie  existence  or  non-existence  of  tlie 
inulicions  and  felonious  intent  clmrsed  was  tlie  principal  qtiestion  to  be  passed 
upon  by  the  jury.  If  Garvey  was  so  drunk  as  not  to  know  what  he  loas  doing  then 
lie  had  no  intention ;  he  was  incapable  of  forininj?  an  intention,  and  any  evidence 
showing  this  fact  should  have  been  admitted  by  this  court.  Such  intention 
must,  in  fact,  exist  to  justify  a  conviction  under  the  statute  of  18G4.  The 
charije  of  the  court  in  this  respect  was,  tlierefore,  we  think,  erroneous.  It  in 
not  pretended  that  intoxication  is  iji  any  case  an  excuse  for  crime,  but  when 
the  intention  of  the  party  is  an  element  of  the  crime,  insanity  of  any  kind  or  from 
any  cause  which  renders  the  party  incapable  of  forrainy  any  intention,  and 
which  is  not  voluntarily  induced  with  a  view  to  the  commission  of  a 
crime  while  in  that  state,  may  be  given  in  evidence  to  show  that  he  is  not 
guilty  of  the  specillc  crime  with  which  he  is  charged.  It  would  not  fol- 
low because  the  accused  was,  in  this  case,  intoxicated,  that  he  did  not  intend 
great  bodily  harui  to  Callman ;  he  may  have  been  intoxicated  and  still  acted  with 
this  criminal  intent.  This  was  for  the  jury  to  decide  froff.  all  the  evidence  in 
the  case."  • 

In  People  v.  IlammiU,^  the  prisoner  was  indicted  for  the  murder  of  his  wife, 
and  it  appeared  that  he  was  in  the  habit  of  using  intoxicating  liquors,  and  was 
under  their  influence  at  the  time*    The  court  charged  the  jury  as  follows :  — 

"  The  case  now  to  be  committed  to  your  hands  is  an  unusually  painful  one.  The 
prisoner  is  not  a  man  who  has  been  familiar  with  vice  or  hardened  by  crime. 
Though  in  the  humble  walks  of  life  lie  is  proved  by  men  of  the  highest  standing 
who  have  known  him  well,  to  have  sustained  the  most  irrcproachal)lc  character 
for  honesty,  integrity,  and  industry,  and  on  all  occasions,  except  when  infuriated 
by  intoxication,  for  kindness  and  attention  and  affection  to  all  his  family.  With 
that  single  exception,  no  better  character  in  all  these  respe<!ts,  or  for  quietness 
and  unoljtrusiveness  of  manners,  could  have  been  shown  than  has  been  estab- 
lished for  him.  But  he  stands  before  you  now  charged  with  the  murder  of  his 
wife.  So  clear  is  the  proof  that  she  died  l)y  violence,  and  that  violence  inflicted 
by  the  prisoner,  that  his  counsel  does  not  insist  on  the  contrary,  but  urges  that 
the  crime  is  less  in  degree  than  that  of  murder. 

"  This  is  a  question  for  you.  Your  duties  are  first  to  determine  whether  'the 
deceased  came  to  her  death  by  violence.  If  so,  then  next  whether  it  was  inflicted 
by  the  prisoner.  If  you  find  in  the  afllrmative  on  both  of  these  questions,  your 
next  inquiry  will  be  whether  these  acts  of  violence  were,  in  the  language  of  the 
statute,  '  perpetrated  from  a  premeditated  design  to  effect  the  death  of  the  per- 
son killed.'    If  so,  then  the  prisoner  is  guilty  of  the  crime  of  murder. 

"  The  important  question  for  you  to  determine,  if  you  find  that  the  prisoner 
caused  this  deatli,  will  be  the  intent  with  which  he  did  tills  violence.  What  did 
he  intend?  What  did  he  design  should  be  the  result  of  his  acts?  Did  he  mean 
to  kill?  Was  that  idea  in  his  mind  as  he  gave  the  blows?  If  so,  the  crime  is 
complete,  and  your  verdict  must  pronounce  it  murder. 

"And  it  matters  not  wliat  was  his  state  as  respects  sobriety  or  intoxication  at 
the  time,  provided  you  find  he  gave  the  blows  with  the  design  to  kill;  for,  if  he 


2  Park.  223  (1855), 


INTOXICATION   AND    INTENTION. 


761 


I'ooplo  V.  Ilaniiiiill. 


meant  that,  then  whether  at  the  time  he  was  drunk  or  sober,  in  eitlicr  case,  his 
crime  is  murder. 

"Whether  he  was  intoxicated  or  otherwise,  the  question  will  still  be:  What 
was  his  intent?  Was  it  to  kill,  or  only  to  wound  and  bruise?  On  the  solution 
of  tliat  question  rests  your  verdict,  for  intoxication  Is  no  excuse  for  crime.  For 
an  act  designedly  perpetrated,  although  done  when  drunk,  the  law  holds  the  per- 
petr.itor  to  the  same  responsibility  as  if  done  when  sober. 

"  But  while  intoxication  does  not  excuse  crime,  in  other  words,  does  not  ex- 
cuse a  party  from  the  consequences  of  acts  which  he  purposely  perpetrates, 
although  drunk  at  the  time,  nevertheless  the  jury  may  always  take  into  consid- 
eration the  fact  of  the  intoxication  of  the  accused  just  so  far  as  it  will  aid  them 
In  determining  witli  what  intent  the  act  was  done.  We  do  not  always  attribute 
the  same  motives  or  intentions  to  the  acts  of  a  drunken  man,  that  we  do  to  those 
of  a  sober  man.  We  act  upon  this  rule  in  every  day  life,  and  we  act  upon  It  be- 
cause our  experience  teaches  its  correctness. 

"  A  familiar  example  from  such  scenes  as  you  have,  probably  all  of  you,  wit- 
nessed, will  illustrate  my  meaning. 

"  A  person  in  a  state  of  intoxication  approaches  us  In  a  rude  or  boisterous, 
or  in  an  unduly  familiar  manner.  Do  we  not  often  feel,  and,  indeed,  we  know 
that  in  all  this  there  is  an  entire  absence  of  the  remotest  idea  of  insulting  or 
offending?  That  such  conduct  results  from  an  impaired  judgment  or  power  of 
discrimination,  or  sense  of  propriety  caused  by  the  state  of  inebriety  in  which 
we  see  him.  Yet  the  same  acts  perpetrated  by  the  same  person  in  a  state  of  so- 
briety would  lead  us  to  no  other  inference  than  that  insult  and  outrage  were 
intended.  Intoxication  partially  impairs  the  judgment,  as  is  exemplilled  when 
we  see  a  man  in  his  cups  sometimes  give  blows  which  In  their  effects  are  far 
more  severe  than  he  intends  or  is  conscious  of.  It  arises  from  his  inability  to 
measure  the  strength  lie  is  putting  forth  with  the  same  accuracy  he  docs  when 
sober.  All  these  things  in  every  day  life  we  consider  when  determining  how  far 
a  party  has  intended  the  full  effect  produced  by  his  acts. 

"  In  so  far,  then,  as  this  man's  intoxication  may  aid  you  in  solving  the  ques- 
tion whether,  wheu  he  gave  his  wife  these  blows,  he  only  intended  to  hurt,  to 
bruise,  or  meant  that  they  should  kill,  you  are  at  liberty  to  consider  it,  but  not 
otherwise.  In  looking  in  upon  his  mind,  in  analyzing  its  secret  workings,  mo- 
tives and  intent,  during  that  fatal  hour,  this  fact  may  throw  some  light  upon 
what  he  meant  should  be  the  consequences  of  his  brutality  and  violence.  So 
far,  and  witli  that  view,  you  may  consider  it,  but  no  further. 

'*  It  is  an  old  and  salutary  general  rule  of  the  common  law  that  a  man  is  held  to 
intend  that  which  in  the  ordinary  course  of  things  would  be  the  natural  result 
of  his  acts. 

•*  This  rule  is  based  upon  sound  reason  and  universal  experience.  Thus,  if  one 
raises  his  rifle  and  deliberately  flres  its  contents  into  the  bosom  of  another,  or 
by  a  blow  with  an  axe  which  might  fell  an  ox,  buries  it  in  the  brain  of  another, 
the  inference  from  the  act  is  irresistible  that  death  was  meant,  and  so  the  law 
presumes. 

'*  The  inferences  of  the  mind,  which  are  equally  presumptions  of  law,  are  cer- 
tain and  conclusive  in  proportion  as  the  acts,  from  their  nature  and  character, 
are  certain  to  result  in  death. 


762 


DRUNKENNESS. 


Notes. 


"  Thus,  the  plunging  of  a  poniard  into  the  lieart  of  anotlior,  wc  do  not  doubt, 
•was  intended  to  liill,  iiut  if  aimed  only  at  tlie  arm  or  leg,  tliough  death  may  be 
the  result,  yet  the  mere  fact  of  giving  such  a  blow,  so  long  as  that  is  the  only 
criterion  by  which  we  judge,  renders  the  intent  more  doubtful  and  the  inference 
less  strong.  So,  if  one  beat  a  full-grown  man  Avith  his  list,  and  death  ensues, 
we  would  ordinarily  feel  far  more  doubt  that  death  was  intended  than  if  it  had 
been  produced  by  the  use  of  a  dangerous  weapon.  So,  too,  regard  may  be  had 
to  the  relative  strength  and  powers  of  endurance  of  the  parties,  as  well  as  to 
the  mode  in  which  the  violence  is  applied. 

"  A  powerful  blow  given  by  the  flst  alone  (but  not  repeated)  upon  the  head  of  a 
full-grown  man  would  not  ordinarily  be  regarded  as  intended  to  produce  death ; 
but  what  else  could  be  inferred  if  the  same  blow  were  planted  upon  the  temple 
of  an  infant  child? 

"  In  many  cases  the  inference  that  death  is  intended  is  as  strong  when  the  act 
is  perpetrated  by  a  drunken  as  when  perpetrated  by  a  sober  man.  Thus,  if  by 
a  deadly  weapon,  as  by  a  rifle  or  a  bowic-linifc,  a  bullet  or  blow  is  sent  directly 
or  designedly  to  some  vital  spot,  we  should  infer  that  death  was  intended  with 
almost  equal  certainty,  whether  the  perpetrator  were  drunk  or  sober.  So,  too, 
when  death  is  produced  by  poison,  and  we  sec  in  the  mode  of  its  administration 
stealthy  calculation,  we  would  infer  that  death  was  intended,  whether  he  who 
administered  the  poison  was  in  a  state  of  sobriety  or  intoxication,  since  in  the 
very  character  of  the  act  we  could  read  design. 

"  But  we  also  know  that  Intoxication  produces  more  effect  upon  the  neiTOUS 
system  of  some  than  of  others.  It  clouds  and  obscures  the  judgment  of  one 
more  than  it  does  another.  It  produces  greater  extravagance  of  exertion  and 
action  in  some  than  it  does  in  others,  and  sometimes  consequences  result  from 
such  exti'avagant  exertion  and  action  of  which  the  party  himself  had  no  idea. 
All  these  things  are  to  be  considered  by  this  jury  when  determining  upon  this 
question  of  intent. 

"Had  this  prisoner,  in  a  state  of  entire  sobriety,  thus  deliberately  kicked  and 
stamped  upon  his  wife,  and  for  that  length  of  time  which  the  mutilations  of  her 
person  showed  must  have  been  the  case,  this  jury  might  not  have  hesitated  in 
believing  that  such  brutality  so  long  continued  was  the  prompting  of  a  murder- 
ous mind. 

"  If,  however,  you  find  that  he  was  in  a  state  of  intoxication  which  was  affect- 
ing his  whole  nervous  organization;  that  in  consequence  his  judgment  was  im- 
paired and  to  such  an  extent  that  he  was  in  a  measure  incapable  of  knowing  the 
degree  of  violence  he  was  perpetrating,  or  of  properly  and  accurately  calculating 
its  effects  to  their  full  extent,  all  this  the  jury  ma/  take  into  consideration  so 
far  as  it  enables  them  to  judge  whether  at  the  time  of  the  violence,  he  meant 
onlytobeator  kill.  If  he  perfectly  understood  what  he  was  doing,  and  either 
designed  her  death,  or  if  he  well  knew  that  such  was  likely  to  be  the  consequence 
of  his  acts,  and  yet  kept  on,  neither  considering  nor  caring  what  the  result  of  his 
violence  might  be,  his  crime  is  that  of  murder.  But  if  his  judgment  was  in  part 
obscured  and  his  only  intention  was  to  severely  beat  his  wife,  but  with  no 
thoughts  that  death  was  either  certain  or  possible,  then  the  jury  must  convict  of 
a  less  offence.  His  crime  woulil  be  then  of  that  species  wliich  the  statute  de- 
fines as  the  *  killing  of  a  human  being  without  a  design  to  effect  death,  in  a  heat 


I 


INTOXICATION   AND    INTENTION. 


763 


State  V.  Avery;  Keg.  v.  Monkhousc. 


not  doubt, 
ith  may  be 
is  the  only 

0  inference 
tth  ensues, 
in  if  it  had 
lay  be  had 

1  well  as  to 

le  head  of  a 
ice  death; 
the  temple 

len  the  act 
^hus,  if  by 
it  directly 
nded  with 
So,  too, 
inistration 
jr  he  who 
ice  in  the 

e  nei'vous 
nt  of  one 
rtion  and 
suit  from 
d  no  idea, 
upon  this 

icked  and 
)ns  of  her 
sitated  in 
I  murder- 
as  affect- 
was  im- 
)wing  the 
Iculating 
ration  so 
he  meant 
nd  either 
sequence 
ult  of  his 
is  in  part 
with  no 
onvict  of 
tute  de- 
in  a  heat 


of  passion,  but  in  a  cruel  and  unusual  manner.'  The  prisoner  has  proved  an 
excellent  previous  character.  In  many  casus  tliis  is  of  great  importance,  in  oth- 
ers none  whatever. 

"Where  tlie  intent  to  kill  is  clearly  proved,  if  this  is  the  only  question,  then 
character  avails  nothing  in  defence.  Wanton  killing  is  as  much  murdor  in  tliu 
virtuous  as  in  the  vicious.  But  where  the  intent  is  not  certain,  where  the  minds 
of  the  jury  feel  that  tlie  scales  are  nearly  poisoil,  then  the  jury  may  do  tliat  which 
the  prisoner  liumbly  asks  them  to  do  here,  throw  tlic  weight  of  his  good  cliarac- 
tcr  into  tlic  scales  and  t!ius  secure  a  preponderance  in  his  favor.  In  cases  not 
free  from  doubt,  the  law  allows  it.  Tiie  prisoner  may,  if  you  are  not  entirely 
satisfied  by  the  testimony,  point  to  his  past  life.  And  urging  the  fact  with  all 
the  force  to  which  it  is  entitled,  say  I  have  been  of  peace  and  quiet,  not  of  tur- 
bulence and  blood;  I  have  been  uniformly  honest,  faitliful  and  industrious,  kind 
and  affectionate  in  my  family,  attentive  to  all  their  wants  and  reputable  and  re- 
spectable in  society. 

"  He  asks  you  to  remember  all  these,  and  then  to  say  whether  he  has  from  '  pre- 
meditated design'  killed  tlie  wife  of  his  youtli  and  the  mother  of  his  children. 
If  he  has,  it  is  murder,  and  on  your  oaths  you  must  so  pronounce  it.  If  you 
find  otherwise,  but  are  still  satisfied  that  she  has  died  by  his  violence,  you  may 
find  a  verdict  of  inunslaughter  in  tlie  second  degree." 

The  jury  found  a  verdict  of  manslaugliter  in  the  second  degree. 

In  State  v.  Avery, ^  the  defendant  was  convicted  of  cruelty  to  animals.  On  ap- 
peal, the  Supreme  Court  said:  "The  court  we  think  was  right  in  declining  to 
instruct  the  jury  as  requested  by  tlie  defendant,  that  if  intoxicated  tlio  respond- 
ent could  not  have  tlie  wilful,  malicious  intent  which  is  essential  to  the  commis- 
sion of  the  offence  charged.  Whetlier  he  had  such  an  intent  or  not  was  a 
question  for  the  jurj-,  and  was  riglitfuily  left  to  them  upon  all  tlie  evidence;  and 
the  judge  was  right  in  saying  tiiatthe  evidence  was  not  necessarily  weakened  by 
showing  that  he  was  drunk.  There  may  be  cases  Avhere  the  intoxication  of  the 
respondent  may  be  weiglied,  in  determining  wliother  the  malicious  intent  existed 
as  in  Bex  v,  Thomas;  ^  but  no  case  goes  tlie  length  of  what  was  requested  in  this 
case.  But  here  the  request  was  to  instruct  the  jury,  as  matter  of  course,  that 
the  respondent,  if  intoxicated,  could  not  have  the  wilful  and  malicious  intent 
essential  to  the  commission  of  the  offence." 

In  Beg.  v.  Monkhouse,  *  tried  before  Coleridge,  J.,  and  Rolfe,  B.,  in 
1849,  the  prisoner  was  indicted  for  feloniously  discharging  a  loaded  pistol 
at  another  witli  intent  to  murder  him.  Several  witnesses  deposed  to  his 
being  in  a  state  of  intoxication  shortly  before  the  time  the  act  was  com- 
mitted. Coleridge,  J,  (to  tlie  jury) :  "There  arc  two  points  for  your  consid- 
eration,—  first,  as  to  the  act;  second,  as  to  the  intent.  With  regard  to  the 
latter,  the  allegation  respecting  it  in  the  indictment  must,  no  doubt,  bo  proved  to 
your  satisfaction  before  you  can  find  the  prisoner  guilty  upon  the  full  charge. 
The  inquiry  as  to  intent  is  far  less  simple  than  that  as  to  whether  an  act  has  been 
committed,  because  you  cannot  look  into  a  man's  mind  to  see  wliat  was  passing 
thereat  any  given  time.    What  he  intends  can  only  be  judged  of  by  what  he  does 


1  44  \.  ir.  ;',92  (1362). 
••!  IC.  &  V.  817. 


!  I  Cox.  5.5. 


7(54 


DRUNKENNESS. 


Note's. 


or  says,  and  If  he  says  nothing  then  his  acts  alone  must  guide  yon  to  your  deci- 
sion. It  is  a  general  rule  in  criminal  law,  and  one  founded  on  common  sense, 
that  juries  are  to  presume  a  man  to  do  wiiat  is  tlie  natural  consequence  of  his 
act.  The  conse(|uence  is  sometimes  so  apparent  as  to  leave  no  doubt  of  tlie  in- 
tention. A  man  could  not  i)ut  a  pistol  while  he  linew  it  to  be  loaded  to  another's 
head,  and  Are  it  off,  without  Intending  to  kill  him;  but  even  then  the  state  of 
mind  of  the  party  is  most  material  to  be  considered.  For  Instance,  if  such  an 
act  were  to  be  done  by  a  born  idiot,  the  intent  to  kill  could  not  be  inferred  from 
the  act.  So,  if  the  defendant  is  proved  to  have  been  intoxicated,  the  question 
becomes  a  more  sul)lle  one;  but  it  is  of  the  same  kind,  namely,  Was  he  rendered 
by  intoxication  entirely  incapable  of  forming  tae  intent  charged  ?  The  case 
cited  is  one  of  great  authority,  from  the  eminence  of  tlie  judge  who  decided  it. 
The  only  difficulty  is,  in  knowing  wiiether  we  get  tlie  exact  words  of  the  judge 
from  the  case  (juoted;  and  even  if  we  do,  whether  all  the  facts  are  stated  which 
induced  him  to  lay  down  the  particular  rule.  Although  I  agree  with  the  sub- 
stance of  what  my  brotlier  Patteson  is  reported  to  have  said,*  I  am  not  so  clear 
as  to  the  propriety  of  adopting  the  very  words.  If  he  said  that  the  jury  could 
not  And  the  intent  without  being  satisfied  it  existed,  I  shall  so  lay  it  down  to  you ; 
the  only  difference  between  us  is  as  to  the  amount  and  nature  of  the  proof  suffi- 
cient to  justify  you  in  coming  to  such  a  conclusion.  Under  such  circumstances 
as  these  when  the  act  is  unambiguous,  if  the  defendant  was  sober,  I  should  have 
no  difficulty  in  directing  you  that  he  had  the  intent  to  take  away  life,  where,  if 
death  had  ensued,  the  crime  would  have  been  murder.  Drunkenness  is  ordi- 
narily neither  a  defence  nor  excuse  for  crime,  and  where  it  is  available  as  a  par- 
tial answer  to  a  charge,  it  rests  on  the  prisoner  to  prove  it,  and  it  is  not  enough 
that  he  was  excited  or  rendered  more  irritable,  unless  the  intoxication  was  such 
as  to  prevent  him  from  restraining  himself  from  committing  the  act  in  question, 
or  to  take  away  from  him  the  power  of  forming  any  specific  intention.  Such  a 
state  of  drunkenness  may  no  doubt  exist.  To  ascertain  whether  or  not  it  did 
exist  in  this  instance,  you  must  take  into  consideration  the  quantity  of  spirit  he 
had  taken,  as  well  as  liis  previous  conduct.  His  conduct  subsequently  is  of  less 
importance,  because  the  consciousness  (if  he  had  any)  of  what  he  had  done 
might  itself  beget  considerable  excitement.  You  must  not  find  him  guilty  of  one 
of  these  intents  on  mere  guess;  but,  on  the  other  hand,  I  am  bound  to  tell  you 
that  if  you  think  one  or  all  of  them  existed,  there  is  evidence  sufficient,  in  point 
of  law,  to  justify  you  in  saying  so." 

The  prisoner  was  found  guilty  on  the  count  charging  an  intent  to  do  grievous 
bodily  harm. 

In  Rex  V.  Meakin,^  the  prisoner  was  indicted  for  stabbing  with  intent  to  kill. 
He  was  proved  to  have  been  "  something  the  worse  for  liquor  "  at  the  time.  Al- 
DEKSON,  B.,  charged  the  jury  tlius :  "  It  is  my  duty  to  tell  you  that  the  prisoner's 
being  intoxicated  does  not  alter  the  nature  of  the  offence.  If  a  man  chooses  to 
get  drunk,  it  is  his  own  voluntary  act;  it  is  very  diff  cent  from  a  madness  which 
is  not  caused  by  any  act  of  the  person.  That  voluntary  species  of  madness  which 
it  is  in  a  party's  power  to  abstain  from,  he  must  answer  for.  However,  with 
regard  to  the  intention,  drunkenness  may  perhaps  be  adverted  to  according  to 


1  In  R.  r.  Cruise,  8  C.  &  P.  646. 


7  0.  &  P.  297  (1836). 


0  your  decl- 
iinon  sense, 
ence  of  his 
it  of  the  In- 
;o  another's 
the  state  of 
,  if  such  an 
ferred  from 
he  question 
le  rendered 
?    The  case 

decided  it. 
if  the  judge 
;ated  which 
ththe  sub- 
lot  so  clear 

jury  could 
\vn  to  you ; 
)roof  suffi- 
lumstances 
hould  have 
,  where,  if 
is  is  ordl- 
e  as  a  par- 
lot  enough 

1  was  such 
I  question, 
I.  Such  a 
not  it  did 
f  spirit  he 
J  Is  of  less 
had  done 
ilty  of  one 
io  tell  you 
t,  in  point 

'  grievous 

nt  to  kill, 
ime.  Al- 
irisoner's 
fiooses  to 
ess  which 
ess  which 
ver,  with 
ording  to 


DUUNKEN'NEiSS    AM)    KNOWLKlXiK. 


7(;5 


Suicide;  t'onfos.sion 


s. 


the  nature  of  the  instrument  used.  If  a  man  uses  a  stick  you  would  not  infer  a 
malicious  intent  so  strongly  against  him,  if  drunk,  when  he  niado  lui  intumporate 
use  of  it,  as  you  would  if  he  had  used  a  different  kind  of  weapon;  l)ut  ivhere  a 
dangerous  instrument  is  used,  which,  if  used,  must  produce  grievous  bodily  harm 
drunkenness  can  have  no  effect  on  the  consideration  of  the  malicious  intent  of 
the  party."     Verdict  guilty . 

In  Iteg.  v.  Cruine,^  tlie  prisoner  and  his  wife  were  tried,  in  1838,  before  Pattk- 
SON,  J.,  for  the  nuirder  of  a  natural  child.  It  appeared  tliat  they  were  botli  drunk 
attlip  time.  The  judge  in  charging  the  jury  said:  "Although  drunkenness  is  no 
excuse  for  any  crime  whatever,  yet  it  is  often  of  very  groat  Importance  in  cases 
where  it  is  a  question  of  intention.  A  person  may  be  so  drunk  as  to  be  utterly 
unable  to  form  any  intention  at  all,  and  yet  he  may  be  guilty  of  very  great  violence . 
If  you  are  not  satisfied  that  the  prisoners,  or  either  of  them,  had  formed  a  positive 
intention  of  murdering  this  child,  you  may  still  lind  them  guilty  of  an  assault." 
The  prisoners  were  convicted  of  assault. 

It  has  been  held  in  England  that  a  person  who  at  the  time  was  so  drunk  as  not 
to  know  what  she  was  about  could  not  be  convicted  of  an  attempt  to  commit 
suicide.* 

That  a  person  was  intoxicated  when  he  made  a  confession  <joes  only 
to  the  weight  of  the  confession  and  not  to  its  admissibility.'^ 

§  C5.  Drunkenness  —  Knowledgre.  —  On  an  indictment  for  passing  a  counter- 
feit bill,  tlie  drunkenness  of  a  prisoner  is  relevant  on  the  question  of  knowl- 
edge.* In  U.  S.  V.  Bondenbush,^  tlie  prisoner  was  indicted  for  passing  counterfeit 
money.  It  appeared  that  he  had  previously  sustained  a  good  character  and  at  the 
time  of  the  offence  was  on  a  carouse.  Baldwin,  J.,  said  to  the  jury  on  this 
point:  "  It  is  alleged  that  the  defendant  was  on  a  frolic  and  intoxicated  at  the 
time  of  receiving  the  counterfeit  notes  at  Sliive's.  Intoxication  is  no  excuse  for 
crime,  when  the  offence  consists  merely  in  doing  a  criminal  act  witliout  regard- 
ing intention.  But  wlien  tlie  act  done  is  innocent  in  itself,  and  criminal  only 
when  done  with  a  corrupt  or  malicious  motive,  a  jury  may,  from  intoxication, 
presunje  that  there  was  a  want  of  criminal  intention ;  that  the  reasoning  faculty, 
tlie  power  of  discrimination  between  right  and  wrong  was  lost  in  the  excitement 
of  the  occasion.  But  if  the  mind  still  acts,  if  its  reasoning  and  discriminating 
faculty  remains,  a  state  of  partial  intoxication  affords  no  ground  of  a  favorable 
presumption  in  favor  of  an  honest  or  innocent  intention,  in  cases  where  a  dis- 
honest and  criminal  intention  would  be  fairly  inferred  from  tlie  commission  of 
the  same  act  when  sober.  The  simple  question  is,  Did  he  know  what  he  was 
about?    Tile  law  depends  on  the  answer  to  this  question. 

"  The  offence  charged  against  Mr.  Rondenbush  is  not  for  dishonestly  receiv- 
ing, but  for  dishonestly  passing  counterfeit  notes.  If  he  received  these  notes, 
believing  them  to  be  genuine,  you  must  be  satisfied  that  he  passed  them  as  true, 
knowing  them  to  be  false.  But  if  he  received  them  as  counterfeits,  then  the  act 
of  passing  them  as  true  completes  the  offence  without  further  evidence.    If  you 


1  8  C.  &  P.  546  (1838). 

2  B.  V.  Moore,  3  C.  &  K.  319  (1862). 

3  State  V.  Grear,  28  Minn.  426  (1881) ;  C«m. 
V.  Howe,  9  Gray,  110  (1857). 


*  Pigman  v.  State,  14  Ohio,  556  (1846). 
6  Baldw.  SUdS-sa). 


7()() 


Dia'NKKNNKSS. 


NutOH. 


shall  believe  that  when  ho  received  these  notes  at  Shive's  he  was  In  such  a  state 
of  hitoxlealion  as  not  to  know  wliat  he  was  ;;lvinfj  or  what  he  was  n'ctivlng.ln 
exchaiifie,  then  .you  may  say  tiiat  he  did  not  receive  tiieni  as  known  connterfells; 
and  before  yon  can  Uiul  him  {inllty  will  reiinire,  besides  proof  of  his  passing  them 
as  trne,  i)roof  of  his  knowledge  that  they  were  falsi;.  This  would  be  going  to  the 
utmost  extent  wiiieh  tlie  law  would  warrant  or  reason  justify,  but  putting  him  on 
the  fooling  of  a  soi)er  man  who  innocently  should  receive  forged  paper.  The  de- 
fendant's counsel  couUl  not  ask  you  to  go  furtlier  in  any  case  of  the  highest  de- 
gree of  Intoxication.  You  will  decide  whether,  from  the  clreuinstances  of  this 
case,  you  will  feel  justilled  in  going  so  far.  Should  you  be  of  o|)inlon,  that 
either  from  intoxication,  ignorance,  or  the  Imposition  practised  on  1dm  by  artful 
villainy,  he  received  the  notes  as  good,  or  not  knowing  them  to  be  bad,  and 
thus  make  every  possible  allowance  in  favor  of  the  accused;  you  cannot  extend 
that  allowance  to  the  passing  of  the  notes,  when  Intoxication  has  ceased,  and 
imposition  could  no  longer  be  practised  upon  his  ignorance,  if  ho  then  knew 
them  to  be  forged." 

§  0(i.  Drunkenness  —  Kelevant  to  Explain  Threats. —  In  Hex  v.  Tliomas^  it 
was  said  by  Pauki;,  IJ. :  "  Wliere  the  question  is  whether  words  have  been  uttered 
witli  a  deliberate  purpose  or  are  merely  low  and  idle  expressions,  the  drunkeu- 
ness  of  the  person  uttering  them  Is  proper  to  be  considered.  But  if  there  is 
really  a  previous  determination  to  resent  a  slight  affront  in  a  barbarous  manner 
the  state  of  drunkenness  in  whicli  the  prisoner  was  ought  not  to  be  regarded,  for 
it  would  furnish  no  excuse."  In  a  Delaware  case,  the  judge,  in  explaining  the 
exceptions  to  tlie  rule  that  evidence  of  intoxication  Is  not  adnussible  on  the 
<luestion  of  the  guilt  of  a  crime,  said:  "  The  other  is  when  antecedent  threats, 
menaces,  or  malicious  and  revengeful  expressions  are  proved  to  have  been  ut- 
tered by  the  accused  Avhen  drunk  or  intoxicated,  and  when  it  always  liecomes  a 
legitimate  matter  for  the  grave  consideration  of  the  jury  whether  they  are  but 
the  idle  and  unmeaning  declarations  and  denunciations  of  an  angry  and  drunken 
man  merely,  or  are  properly  to  be  regarded  as  of  graver  and  more  serious  and 
sober  impoi't,  denoting  an  actual  intent  to  do  what  he  threatens,  for  the  law 
presumes  a  drunken  man  to  be  capable  of  conceiving  and  entertaining  even  ex- 
press malice  aforethought  and  perpetrating  with  premeditation  and  design  mur- 
der in  the  first  degree  under  the  statute."  ^  In  Eastwood  v.  People  '  it  was  said  : 
"  That  it  was  of  great  importance  for  the  jury  to  know  whether  the  prisoner  was 
or  was  not  intoxicated  is  obvious.  It  clearly  did  not  necessarily  follow  because 
the  prisone-  "  od  the  expressions  which  I  have  referred  to  that  he  really  enter- 
tained the  design  which  the  words  import.  It  not  unfrcquently  happens  that 
when  men  are  Avrought  up  to  a  pitch  of  frenzied  excitement  by  intoxication  or 
by  passion  their  language  assumes  a  degree  of  violence  far  beyond  any  deliber- 
ate purpose  which  they  have  formed.  Instances  of  this  kind  must  have  come 
under  the  observation  of  every  man  of  experience." 


7C.  &P.  817  (1837). 
*  State  V.  Hurley,  1  Houst. 
(1858) ;  Bee  post,  p.  874. 


Cr.  Cas.  28 


>  3  Park.  25  (1855). 


riJOVOCATION  —  SKLF-DKI'ENCE. 


767 


l)riinkiMiii<-ss  liclcvaiit. 


uch  11  Htate 
I'cilvliig.hi 
imtrrfeits; 
Sisliig  them 
oliiij;  to  the 
^iu^hiin  on 
'.    Tilt!  (le- 
iglitst  do- 
ll's of  tills 
inlon,  that 
n  by  artful 
'■  bad,  ami 
lot  cxtfiid 
•ased,  and 
ht'ii  knew 


liomas^  it 
ciii  littered 
dninken- 
f  there  Is 
s  inannor 
iirded,  for 
iiiliig  the 
»lc  on  the 
t  threats, 
been  ut- 
icoines  a 
y  are  but 
drunken 
ions  and 
r  the  law 
even  ex- 
ign  mur- 
vas  said  : 
oner  -vvas 
because 
ly  enter- 
ens  that 
ation  or 
deliber- 
VQ  come 


§  (!7.  Drunkenness  —  Relevant  on  Question  of  Provocation  —  Rex  v. 
rhom&B.—  ln  III  x\.  Thimm,n\\HK,  H.,«ald  to  llie  jury:  "I  iimst  also  tell  you 
that  If  a  man  makes  himself  volimtarlly  drunk,  that  It  Is  no  excuse  foraiiycrlmo 
lio  may  commit  whilst  he  is  so;  In;  must  take  the  <-()iise(|Ucii<;es  of  his  own  vol- 
untary act,  or  most  crimes  would  othiTwiso  he  unpiiiiishcd.  IJut  (iriiiiki'nness 
may  1)0  taken  into  consideration  in  cases  where  what  the  law  (kerns  sulllcient 
lirovocatlou  has  been  given,  because  Mie  (|uestion  Is,  in  such  cases,  whether  the 
fatal  act  Is  to  be  attributed  to  the  passion  of  anger  excited  by  the  previous  pro- 
vocation, and  that  passion  Is  more  easily  excitable  In  a  person  when  in  a  state  of 
intoxication  than  when  he  is  sober." 

In  a  Delaware  case;  it  was  said:  "  When  It  was  proved  to  the  satisfaction  of 
ilio  jury  that  the  crime  was  committed  by  the  accused  in  a  state  of  intoxication 
or  drunkenness  and  upon  a  certain  jirovocatlon  given  him  by  the  party  killed, 
and  wlien  a  smaller  provocation  may  be  allowed  to  alleviate  the  offence,  and 

reduce  it  from  niurder  in  the  (list  to  miinier  In  the  second  degi ,  under  the 

statute,  owing  to  the  well  known  fact  lliat  a  person  in  that  condition  Is  more 
liable  to  l)e  suddenly  heated  and  blinded  to  a  higher  degree  by  angry  passions 
than  a  sober  man  would  be  under  the  same  or  a  similar  provocation."  '^ 

\n, Tones  \.  »S7a«e,'' it  was  held  that  the  jury  may  consider  the  drunkenness  of 
tlie  accused  at  the  time  of  the  killing  not  to  excuse  or  mitigate  or  exteiimite  ids 
crime,  but  to  assist  them  in  deciding  when  there  was  a  i)rov()cation,  wliether  the 
intention  to  kill  preceded  the  provocation  or  was  produced  by  it. 

§  (J8.  Drunkenness— Relevant  on  Question  of  Self-Defence  —  Marshall's 
Case.  — In  Jfars/iaW's  Case,  *  tried  before  Pauk,  J.,  in  18;{0,  on  an  indictment  for 
.stabbing,  the  judge  told  the  jury  that  they  might  take  into  consideration,  the 
fact  of  the  prisoner  being  drunk  at  the  time,  in  order  to  determine  Avhetlier  ho 
acted  under  a  bona  fide  apprehension  that  his  person  or  property  was  about  to 
be  attacked.* 

To  justify  taking  life  in  self-defence  the  circumstances  must  i)e  sncli  as  to  ex- 
cite the  fears  of  a  rea.sonable  man.  The  law  makes  no  discrimination  in  favor  of 
a  drunkard.  Therefore,  in  a  Georgia  case,  it  was  held  tliat  it  was  proper  to  re- 
fuse a  cliarge  in  these  words:  "If  tlie  jury  Ixdieve  from  the  evidence  that  the 
prisoner  was  very  drunk  *  *  ♦  and  that  l)eiug  in  a  state  of  intoxication,  and 
very  drunk,  killed  J.,  through  cowardice,  alarm,  or  fear  that  a  great  botliiy  in- 
jury was  about  to  be  inflicted  upon  him,  then  he  is  not  guilty  of  murder."  «  In 
Reg.  V.  Gamlen,''  the  prisoner  was  indicted  for  assault.  The  charge  arose  out  of 
an  affray  at  a  fair,  and  there  was  ground  for  supposing  that  he  acted  under  ap- 
prehension of  an  assault  upon  himself.  All  concerned  were  drunk.  Crowdkr, 
J.,  charged  the  jury  that  "  Drunkenness  is  no  excuse  for  crime,  but  in  consider- 
ing whether  the  prisoner  apprehended  an  assault  on  himself  you  may  take  into 
account  the  state  in  which  he  was."    He  was  acquitted. 


1  7  C.  &  P.  817  (1837). 

2  Slate  V.  Hurley,    1  Honst.  Cr.  Cas. 
(?808) ;  State  v.  McCants,  ante,  p.  722. 

3  29Ga.  607  (1860). 
*  Lewin,  76. 


6  In  Goodier's  Case,  1  York  Sammer  Aa- 
28      sizes,  1831,  Park,  J.,  directed   the  jury  lo 
tlie  same  elfect. 

•  Golden  v.  State,  25  Ga.  627  (1868). 

»  IF.  &F.  90(1858). 


768 


DUUNKENNKSS. 


Notes. 


§  ()!) .  Dninkennesa  Created  by  Another  to  Cause  PrlBoner  to  Perpetrate  the 
Crime. — In  liurtholomcw  v.  I'cupli-,^  It  wiis  siild :  "  I'lulat  Iff  In  error  wiis  convicted 
by  tlio  judgment  of  the  court  behnv  of  tho  crime  of  larceny.  It  was  not  eerl- 
ously  contested  that  ii  larceny  was  committed,  or  that  plnintlfl  in  error  was 
connected  therewith  —  the  property  stolen  being  found  in  his  possession.  The 
defence  was,  ut  the  time  of  the  taking,  and  for  some  hours  afterward,  plaintiff 
in  error  was  under  tlie  intlueucu  uf  intoxication  caused  by  the  fraud  or  con- 
trivance of  another  person  for  tho  purpose  of  inducing  him  to  commit,  or  to 
aid  in  committing,  the  larceny.  Our  statute  provides:  '  Drunkenness  shall  not 
be  an  excuse  for  any  crime  or  misdemeanor  unless  such  ilrunkenness  bo  occa- 
sioned by  tlie  fraud,  contrivance  or  force  of  some  other  person  for  tho  purpose 
of  causing  the  perpetration  of  an  offence.'  *  At  connnon  law  where  It  required  a 
particular  intent  in  the  doing  of  an  act  to  constitute  crime  —  as,  for  instance, 
larceny,  where  the  intent  to  steal  must  accompany  tho  act  of  taking,  It  Is  held 
it  may  be  shown  in  defence  that  the  party  charged  was  intoxicated  to  that  degree 
that  he  was  incapable  of  entertaining  tlu;  intent  to  steal,  and  that  ho  neither  then 
nor  afterwards  yielded  It  the  sanction  of  his  will.  It  was,  therefore,  competent 
to  make  the  defence  relied  upon." 


1104111.006(1882). 


*  B.  S.  1874,  b.  395,  §  19. 


'petrate  the 

IS  convictea 
IS  not  scri- 
i  error  was 
sslon.  The 
rd,  plaintiff 
ud  or  con- 
nmlt,  or  to 
ss  shall  not 
ss  bo  occa- 
ho  purpose 
t  required  a 
•r  instance, 
:,  It  Is  held 
that  degree 
lelthcr  then 
competent 


CHAPTER    IV. 


KLEPTOMANIA  AND  SOMNAMBULISM. 


KLEPTOMANIA  — CHARGE   MUST  BE  SPECIALLY   DIRECTED  TO  DE- 

FENCE  MADE. 

LooNEY  V.  State. 

[10  Tex.  (App.)  C20.] 
Court  of  Appeals  of  Texas,  1881. 
Hon.  John  P.  White,  Presiding  Justice. 

"      C.  M.  WiNKLKK,  ) 

"    James  M.  Hurt,  r"'^^**' 

1.  Kleptomania  is  a  recognized  symptom  of  insanity. 

3.  Jury  should  be  Specially  Chargred  as  To.  —  On  a  <;rial  (or  theft,  the  defence  being  the 
propensity  to  steal  Icnown  ua  lileptomania,  and  there  being  evidence  tending  to  sustain 
it,  the  court  should  charge  the  jury  specincally  on  this  point.  A  submission  of  the 
nsual  test  of  the  prisoner's  ability  to  distinguish  between  right  and  wrong  is  insuffi- 
cient. 

Appeal  from  the  District  Court  of  Montgomery  County.  Tried  be- 
fore Hon.  James  Mastekson. 

Looney  was  indicted  for  the  theft  of  clothes  and  other  wearing  ap- 
parel and  other  articles  from  the  store  of  W.  T.  Nobles.  On  being 
apprehended  he  had  confessed  his  guilt,  saying  in  explanation  that 
from  his  boyhood  he  had  been  afflicted  with  an  ungovernable  habit  of 
appropriating  articles  of  property  belonging  to  others,  many  of  them 
articles  for  which  he  could  have  no  possible  use,  such  as  photographs  of 
entire  strangers,  combs,  brushes,  books,  etc.  He  could  not  tell  how, 
when  or  where  he  came  into  possession  of  them.  Several  witnesses 
testified  that  he  was  not  of  strong  i}iind,  and  was,  in  their  opinion,  in- 
capable of  distinguishing  between  right  and  wrong.  The  court  in- 
structed the  jury  (1)  that  the  piisonci-  could  not  be  convicted  if  he 
was  unable  to  distinguish  between  right  and  wrong;  (2)  that  if  the 
prisoner  did  "  take  the  goods  of  "NV.  T.  Nobles,  at  the  time  and  in  the 
49  (7f)!>) 


770 


KLEPTOMANIA. 


J.ooiU'v  I'.  Slate 


manner  charged,  but  at  the  time  of  committing  the  act  was  laboring^ 
under  such  a  defect  of  reason  ad  not  to  know  the  nature  and  quality  of 
the  act  he  was  doing,  or  if  he  did  know  it,  that  he  did  not  know  that 
he  was  doing  wrong,  then  you  will  acquit." 

The  jury  found  the  prisoner  guilty  and  assessed  his  punishment  at  a 
term  of  two  years  in  tlie  penitentiary. 

J.  It.  Peel,  for  the  appellant. 

//.  Chilton,  Assistant  Attorney-General,  for  the  State. 

Winkler,  J.  — This  appeal  is  from  a  judgment  of  conviction  of  theft 
of  property  over  the  value  of  twenty  dollars.  From  the  evidence  and 
the  charges  of  the  court,  given  and  refused,  we  are  led  to  conclude  that 
the  only  defence  relied  on  in  the  court  below  was  kleptomania,  and  if 
there  was  error  in  the  charge  of  the  court,  and  prejudicial  to  the  right? 
of  +he  defendant,  under  tliis  defence  and  the  testimony  on  that  sub- 
ject, such  error  is  to  be  found  in  appl3'ing  the  facts  to  t!ic  general  sub- 
ject of  insanity  rather  than  in  applying  it  directly  and  specifically  to 
tbfe  peculiar  condition  of  the  defendant's  mind,  developed  by  the  proofs  ; 
and  in  this  respect  we  incline  to  the  opinion  that  the  charge,  taken  as  a 
whole,  was  defective,  in  not  giving  to  tiie  jury  a  special  charge  on  the 
subject  of  this  peculiar  symptom  as  it  relates  to  the  general  subject  of 
insanity. 

It  is  said  that  kleptomania  occurs  not  unfrequently  as  a  symptom  in 
mania  and  the  mental  confusion  incidental  to  it,  and  in  depression  and 
delirium,  in  which  its  consideration  involves  less  difficulty  But  where 
it  occurs  in  cases  of  concealed  insanity,  its  discovery  is  not  easy.i  To 
our  minds,  what  has  been  said  by  EUinger,  and  quoted  in  the  authority 
jnst  cited,  in  the  nature  of  pr:'  Lical  direction?,  may  well  be  considered 
in  connection  with  the  case  and  the  subject  under  consideration,  not  as 
law,  but  as  illustrating  tlie  propriety,  if  not  the  necessity,  of  a  charge 
to  the  jury  on  this  peculiar  feature  of  the  case,  as  follows:  1.  In  the 
earlier  developments  of  mania,  kleptomania  is  an  important  symptom ; 
it  will,  however,  be  found  accompanied  more  or  less  by  other  symptoms 
of  incipient  derangement,  such  as  a  general  alteration  in  the  accus- 
tomed mode  of  feeling,  thinking,  occupation  and  life  of  the  individual, 
a  disposition  to  scold,  dispute  and  quarrel,  to  drink,  and  to  wander 
about  busily,  doing  nothing,  and  the  bodily  signs  of  excitement  (rest- 
lessness, want  of  sleep,  rapid  pulse,  etc.).  2.  Kleptomania  continues 
after  the  disease,  to  all  external  appearances,  has  ceased.  Here  the 
disease  also  has  not  yet  terminated,  which  can  only  be  indicated  by  a 


1  'NVharton  &  Stillc'e  Med.  Jur,  sect.  193. 


KLEPTOMANIA. 


771 


When  a  Defence  to  Crime. 


laboring 
uality  of 
low  that 

lent  at  a 


,  of  theft 
ence  and 
hide  that 
a,  and  if 
he  right? 
that  sub- 
eral  sub- 
fically  to 
}  proofs ; 
ken  as  a 
;e  on  the 
ibject  of 

iptom  in 

sion  and 

lit  where 

3y.i    To 

luthority 

nsidered 

ii,  not  as 

a  charge 

.  In  the 

mptom ; 

rmptoms 

e  accus- 

lividual, 

wander 

nt  (rest- 

ontinues 

lere  the 

ted  by  a 


return  of  the  original  state  of  thought  and  feehngs.  (This  calls  for  a 
continued  course  of  observation  by  tlie  examining  pliysician. )  3, 
There  arc  distinct  but  occult  hallucinations  at  work.  Those  are  to  be 
assumed,  the  more  readily,  the  more  bizarre  and  exclusive  is  the  desire 
to  steal,  and  the  more  the  objects  to  which  it  is  confined  are  out  of  pro- 
portion to  the  property  of  the  thief  ;  and  particular  attention  should  be 
paid  to  tlie  existence,  present  and  past,  of  other  symptoms  of  insan- 
ity." An  instance  of  this  inordinate  propensity  to  steal  is  cited  in  this 
connection  from  Dr.  Rush,  who  says:  "  In  one  instance  a  woman  was 
exemplary  in  her  obedience  to  every  command  of  the  moral  law,  except 
one  —  she  could  not  refrain  from  stealing."  "'"'''e  make  those  further 
quotations  from  this  authority  as  indicative  of  this  peculiar  symptom  of 
insanity:  "  It  would  be  difficult  to  prove  directly  that  this  propensity, 
continuing  as  it  does  through  a  whole  life,  and  in  a  state  of  apparently 
perfect  health,  is,  notwithstanding,  a  consequence  of  diseased  or  abnor- 
mal action  in  the  brain,  but  the  presumptive  evidence  in  favor  of  this 
explanation  is  certainly  strong.  First,  it  is  very  often  observed  in 
abnormal  conformations  of  the  head,  and  accompanied  by  an  imbecile 
condition  of  the  understanding.  *  ♦  *  _A.n  instructive  case  has 
been  lately  recorded,  in  which  this  propensity  seems  to  be  the  result  of 
a  rickety  and  scrofulous  constitution." 

We  mention  these  peculiarities  in  order  to  show  the  fact  that  klepto- 
mania is  a  recognized  symptom  of  mania,  in  some  of  its  recognized  forms 
at  least,  and  to  illustrate  the  importance  —  this  being  the  peculiar  de- 
fence—  of  embracing  in  a  general  charge  on  the  subject  of  insanity,  this 
peculiar  symptom  —  a  feature  of  the  present  case  to  which  proper  atten- 
tion seems  not  to  have  been  paid,  on  the  trial  below,  and  which  in  our 
opinion  would  have  been  more  fully  developed  if  the  attention  of  the  jury 
had  been  called  more  pointedly  to  this  feature  of  the  defence. 

Other  questions  are  presented  by  the  record  and  have  been  discussed 
in  argument,  but  are  not  considered  by  this  court,  not  that  they  are  un- 
important or  immaterial,  but  because  if  they  are  errors  they  are  suscep- 
tible of  easy  correction  on  another  trial.  Because  of  what  we  deem  a 
material  defect  in  the  charge,  as  above  indicated,  the  judgment  will  be 
reversed,  and  the  cause  remanded  for  a  new  trial 

Reversed  and  remanded. 


772 


SOMNAMHULISM. 


Fula  I'.  Coininonwealtli. 


SOMNAMBULISM  — HOMICIDE-  RESPONSIBILITY  FOK   UNCONSCIOUS 

ACT. 

Fain  v.  CoMMONWEALTn. 

[78  Ky.  183.] 

In  the  Court  of  Appeals  of  Kentucky,  September  Term,  1879. 

Hon.  Martin  F.Cofer,  Chief  Justice. 
"    Tho.mas  F.  Hargis,  \ 
*'    Thomas  H.  Hines,    \  Associate  Judges. 
"    William  S.  Prior,    ) 


I 


Somnambnllsm  —  Uurder  Committed  While  in  a  State  of—  Responsibility  for 
Unconscious  Act.— F.  and  W.  entered  tiigethur  at  night  a  public  room  of  a  hotel,  sat 
down  and  went  to  sleep.  W.  awoke  shortly  after  and  called  to  S.  one  of  the  porters,  for 
a  bed  for  himself  and  F.  W.  then  attcni|)ted  to  awaken  F.  by  shaking  him,  but  failing, 
asked  S.  to  wake  him  up.  S.  thereupon  NhookF.  with  great  force  and  succeeded  in  awak- 
ening him.  While  S.  was  holding  him  by  the  coat  collar,  and  telling  him  to  go  to  bed, 
F.  drew  a  pistol  from  his  pocket  and  shot  S.,  killing  him.  F.  then  went  out  of  the  room 
with  the  pistol  in  his  hant^I,  his  manner  being  that  of  a  frightened  man,  saying  that  he 
had  shot  some  one  but  did  not  know  whom.  F.  did  not  know  nor  had  he  ever  seen  S.  be- 
fore. On  his  trial  fortho  murderof  S.,  F.oifered  to  prove  that  he  had  been  asleep-walker 
from  infancy ;  that  he  had  to  be  watched  to  prevent  injury  to  himself;  that  frequently 
when  aroused  from  sleep,  he  seemed  frightened,  and  attempted  violence  as  if  resisting 
an  assault,  and  for  some  minutes  seemed  unconscious  of  what  ho  did  or  what  went  on 
around  him;  that  sometimes  when  prtly  asleep,  ho  resisted  the  servant  who  slept  in 
tht.'  room  with  him  as  if  he  supposed  the  servant  was  assaulting  him.  He  also  offered 
to  jirovc  by  medical  experts  that  persons  asleep  sometimes  act  as  if  awake.  He  like- 
wise offered  to  prove  that  his  life  had  been  threatened  by  a  person  living  near  where  he 
haJ  been  on  business  during  the  day,  and  that  he  had  on  that  morning  borrowed  the 
pistol  with  which  he  shot  the  deceased  and  had  slated  at  the  time  that  lie  was  required 
to  go  noar  to  where  'he  person  lived  who  had  threatened  him,  and  ho  wanted  the  pis- 
tol to  defend  himself  in  case  he  was  attacked.  The  court  rejected  all  this  proffered 
evidence,  and  the  prisoner  excepted.  Held,  error.  If  the  prisoner,  when  he  shot  the 
deceased,  was  unconscious,  or  so  nearly  so  that  he  did  not  comprehend  his  own  situa- 
tion and  the  circumstances  surrounding  him,  or  that  he  supposed  he  was  being  assailed, 
and  that  he  was  merely  resisting  un  attempt  to  take  his  life  or  do  him  great  bodily  in- 
Jury,  he  should  be  acquitted. 

Appeal  from  Jessamine  Circuit  Court. 

H.  A.  Anderson  aiul  Breckenridge  and  Shelby,  for  appellant. 

Judge  CotKU  delivered  Uie  opinion  of  the  Court. 

The  appellant  was?  indijled  and  tried  for  tlie  murder  of  Henry  Smith, 
a  porter  at  the  Vf-rnnda  Hotel  at  Nicholasville.  He  was  found  guilty  of 
manslaughter,  and  sentenced  to  confmomentin  the  penitentiary  for  two 
years.     From  that  judgment  he  prosecuted  this  appeal. 

The  prisoner  and  his  friend  George  Welcli  went  to  the  Veranda  Hotel 
after  darli  on  an  evening  in  February.     Tlie  weather  was  cold,  and 


VMS    V.    COMMONWEALTH. 


773 


Facts  of  the  Case. 


there  was  snow  upon  the  ground.  They  sat  down  in  Ihc  public  room 
and  went  to  p.ecp.  In  a  short  time  Welch  awoke,  and  finding  the  de- 
ceased attho  barber's  shop  in  the  next  room,  called  for  a  bed  for  him- 
self and  the  prisoner,  to  pay  for  which  he  handed  the  deceased  a  bill. 
Welch  attempted  to  awaken  the  prisoner  by  shaking  him,  but  failed. 
He  theii  /  .d  the  deceased  to  wake  him  up.  The  deceased  shook  him 
for  some  time  and  failing  to  wake  him,  said  he  believed  he  was  dead. 
Welch  said :  "  No,  he  is  not ;  wake  him  up. "  The  deceased  shook  him 
harder  and  harder  until  the  prisoner  looked  up  and  asked  him  what  he 
wanted.  The  deceased  said  he  wanted  him  to  go  to  bed.  The  prisoner 
said  he  would  not  and  told  the  deceased  to  go  away  and  let  him  alone. 
The  deceased  said  it  was  getting  late  and  he  wanted  to  close  the  house, 
and  still  holding  the  prisoner  l)y  the  coat  the  latter  either  raised  or  was 
lifted  up,  and  as  he  arose  he  threw  his  hand  to  his  side  as  if  to  draw  a 
weapon.  A  bystander  said  to  him,  ' '  Don't  shoot ; ' '  but  without  noticing 
or  giving  any  sign  that  he  heard  what  was  said,  he  drew  a  pistol  and  fired. 
The  deceased  instantly  grappled  him  to  prevent  him  from  shooting  again ; 
but  a  second  shot  was  fired  almost  immediately,  and  a  third  soon  fol- 
lowed. After  the  third  shot  was  fired  the  prisoner  was  thrown  down 
and  held  down  by  the  deceased.  The  prisoner,  while  being  held  on  the 
floor,  hallooed  hoo-icee  very  loud  two  or  three  times,  and  called  for 
Welch.  He  asked  the  deceased  to  let  him  get  up,  but  the  deceased 
said:  "  If  I  do  you  will  shoot  me  a^ain."  The  prise  ler  said  he  would 
not  and  the  deceased  released  his  hold  and  allowed  him  to  get  up. 
Upon  getting  up  the  prisoner  went  out  of  the  room  with  his  pistol  in  his 
hand.  His  manner  was  that  of  a  frightened  man.  He  said  to  a  wit- 
ness, "  Take  ray  pistol  and  defend  me;"  said  he  had  shot  someone, 
but  did  not  know  whv  It  was,  and  upon  being  told  who  it  was,  expressed 
sorrow  for  what  he  had  done. 

It  did  not  appear  that  the  prisoner  knew  or  had  ever  seen  the  deceased 
before.  There  was  not  the  slightest  evidence  of  a  motive  on  his  part  to 
injure  the  deceased,  nor  does  there  appear  to  have  been  anything  in 
what  the  deceased  did  or  the  manner  of  doing  it  which,  the  facts  being 
understood,  was  calculated  to  excite  anger,  much  less  a  desire  to  kill 
him.  At  that  time  the  prisoner  was  about  thirty-three  years  of  age,  and 
he  introduced  evidence  to  show  that  he  had  been  a  man  of  good  char- 
acter, and  of  peaceable  and  orderly  habits. 

He  also  offered  to  prove  that  he  had  been  a  sleep-walker  from  his  in- 
fancy ;  that  he  had  to  be  watched  to  prevent  injury  to  himself ;  that  he 
was  put  to  sleep  in  a  lower  room,  near  that  of  his  parent,  and  a  servant- 
man  was  required  to  sleep  in  the  room  to  watch  him ;  that  frequently, 


774 


SOMXAMBULISM. 


Fain  r.  Comniouweulth. 


when  aroused  from  sleep,  he  seemed  frightened,  and  attempted  violence, 
as  if  resisting  an  assault,  and  for  some  minutes  seemed  unconscious  of 
what  he  did,  or  what  went  on  around  him  ;  that  sometimes,  when  partly 
asleep,  he  resisted  the  servant  who  slept  in  the  room  Mith  him,  as  if  he 
supi)osed  the  servant  was  assaulting  him.  He  also  offered  to  prove  by 
medical  experts  that  persons  asleep  sometimes  act  as  if  awake  ;  that 
the}'  walk,  talk,  answer  questions,  and  do  many  other  things,  and  yet 
are  unconscious  of  what  they  do ;  that  with  many  persons  there  is  a 
period  between  sleeping  and  waking  in  which  they  are  unconscious, 
though  they  seem  to  be  awake ;  that  loss  of  sleep,  and  other  causes 
which  produce  nervous  depression  or  mental  anxiety,  may  produce  such 
a  state  of  unconsciousness  between  sleep  and  waking ;  and  that  for 
some  days  previous  his  children  had  been  afflicted  with  a  dangerous  dis- 
ease, and  he  had,  in  consequence,  lost  much  sleep.  He  likewise  offered 
to  prove  that  his  life  had  been  threatened  by  a  person  living  near  where 
he  had  been  on  business  during  the  da}',  and  that  he  had  on  that  morn- 
ing borrowed  the  pistol  with  which  he  shot  the  deceased,  and  had  stated 
at  the  time  that  he  was  required  to  go  near  to  where  the  person  lived 
who  had  threatened  him,  and  he  wanted  the  pistol  to  defend  himself  in 
case  he  was  attacked. 

The  court  rejected  all  this  proffered  evidence,  and  the  prisoner  ex- 
cepted. 

All  the  modern  medico-legal  writers  to  whose  writings  we  have  had 
access,  recognize  a  species  of  mental  unsoundness  connected  with  sleep, 
which  they  commonly  treat  of  under  the  general  head  of  somnambulism. 
In  speaking  of  this  peculiar  affection,  Dr.  Ray  says :  "  Not  only  is  the 
power  of  locomotion  enjoyed  as  the  etymology  of  th^  term  signifies,  but 
the  voluntary  muscles  are  capable  of  executing  motions  of  the  most 
delicate  kind.  Thus  the  somnambulist  will  walk  securely  on  the  edge 
of  a  precipice,  saddle  his  horse,  and  ride  off  at  a  gallop ;  walk  on  stilts 
over  a  swollen  torrent ;  practice  airs  on  a  musical  instrument ;  in  short, 
he  may  read,  write,  run,  leap,  climb,  and  swim,  as  well  as,  and  some- 
times even  better,  than  when  fully  awake."  ^  Wharton  &  Stille,  Tay- 
lor and  Brown  announce  similar  views. ^  Under  the  general  head  of 
mental  unsoundness  connected  with  sleep,  Wharton  &  Stille  group 
somnolentia,  somnambulism,  and  nightmare.  They  define  somnolentia, 
"  to  be  the  lapping  over  of  a  profound  sleep  into  the  domain  of  appar- 


I 


'  Ray's  Med.  Jur.,  sect.  495. 

>  Wharton  &  Stille  on  Mad.  Jur.,  sect. 


149,  et  leq.;  Taylor's  Med.  Jur.,  176;  Med. 
Jur.  of  Inianity,  sect.  328,  et  teq. 


som\amiu:ms.a[. 


775 


Tlic  ()|)iiii()ii  of  tlio  .Modical  Write 


I'S. 


ent  wakefulness,"  and  say  that  it  produces  a  state  of  involuntary  in- 
toxication, which  for  the  time  destroys  moral  agency."  <■ 

The  writings  of  medical  an.l  medico-legal  authors  contain  accounts  of 
many  well  authenticated  cases  in  which  homicides  have  been  committed 
whde  the  perpetrator  was  eitiier  asleep  or  just  being  aroused  from  sleep 
and  in  commenting  on  these  cases,  Brown,  in  his  Medical  Jurispru- 
dence of  Insanity,  uses  this  language:  "Indeed,  there  are  many 
cases  in  which  the  confused  thoughts  of  awakening  consciousness  have 
led  to  disastrous  consequences.  And  tliis  is  to  be  accounted  for  by  the 
fact  that  there  is  a  state  between  sleeping  and  waking  wlien  the  thoughts 
of  the  dreamer  have  as  much  reality  as  tlie  facts  he  is  assured  of  by  his 
senses.  "2  Taylor  recognizes  the  existence  in  many  persons  of  a  lialf  con- 
scious state,  when  suddenly  aroused  from  sleep,  and  says  there  is  no 
doubt,  the  mind  is  at  sucli  a  time  subject  to  hallucinations  and  illusions 
but  seems  to  doubt  whether  sueli  a  state  of  the  mind  can  continue  lon<^ 
enough  for  the  commission  of  a  homicide.  Tiie  authorities,  corrobo! 
rated  as  they  are  by  common  observation,  are  sufficient  to  prove  that  it 
is  possible  for  one,  either  in  sleep  or  between  sleeping  and  waking,  to 
commit  homicide,  either  unconscionsly  or  under  the  influence  of  hallu- 
cination or  illusion  resulting  from  an  abnormal  condition  of  the  physical 
system.  Ray  says :  "As  the  somnambulist  does  not  enjoy  the  free  and 
rational  exercise  of  his  understanding,  and  is  more  or  less  unconscious 
of  his  outward  relations,  none  of  his  acts  during  the  paroxysms  can 
rightfully  be  imputed  to  him  as  crimes."  3  Brown,  and  Wharton  & 
Stille  express  substantially  the  same  views. 

But  we  are  not  under  the  necessity  of  relying  wholly  upon  writers  on 
medical  jurisprudence  as  authority  upon  tliis  point.  It  is  one  of  the 
fundamental  principles  of  the  criminal  law  that  there  can  be  no  crimi- 
nality in  the  absence  of  criminal  intention ;  and  when  we  ascertain  from 
medical  experts  or  otherwise  that  there  is  such  a  thing  in  nature  as  som- 
nolentia and  somnambulism,  the  task  of  the  jurist  is  ended,  so  far  as 
relates  to  the  right  of  one  accused  of  crime  to  offer  evidence  conducing 
to  prove  that  he  committed  the  act  imputed  to  him  as  a  crime  while  in  a 
paroxysm  of  somnolentia  or  somnambulism.  In  criminal  trials  the  jury 
must  try  every  pertinent  question  of  fact  the  evidence  conduces  to 
prove.  When  evidence  is  offered,  the  sole  question  for  the  court  is, 
will  it  conduce  to  prove  any  fact  material  in  the  case?  And  if  the  law 
gives  an  affirmative  response  the  evidence  must  be  admitted.  If,  as 
claimed,  the  appellant  was  unconscious  when  he  fired  the  first  shot,  it 


1  Mtid.  Jur.,flect.  151. 
*  Sect.  338. 


3  MeU.  Jar.,  sect.  508. 


.776 


SOMNAMIU'LISM. 


Fain  v.  Coiiiiiionvvealth. 


cannot  be  imputed  to  him  as  a  crime.  Noi-  is  he  guiUy,  if  partially  con- 
scious, if,  upon  being  partially  awakened,  and  finding  the  deceased  had 
hold  of  him  and  was  shaking  hii..,  lie  imagined  he  was  being  attacked, 
and  believed  himself  in  danger  of  losing  his  life  or  of  sustaining  great 
bodily  injury  at  the  hands  of  his  assailant,  he  shot  in  good  faith,  believ- 
ing it  necessa''v  to  preserve  his  life  or  his  person  from  great  harm.  In 
such  circumstances,  it  does  not  matter  wliother  he  had  reasonabh; 
grounds  for  his  l)olief  or  not.  lie  had  been  asleep,  and  could  know 
nothing  of  the  surrounding  circumstances.  In  his  condition  he  may 
have  supposed  he  was  assailed  for  a  deadly  purpose,  and  if  he  did,  he  is 
not  to  be  punished  because  his  half  awakened  c*  nsciousness  deceived 
him  as  to  the  real  facts,  any  more  than  if,  being  awake,  the  deceased 
had  presented  a  pistol  to  his  head  with  the  api)arent  intention  to  shoot 
him,  when  in  fact  he  was  only  jesting,  or  if  the  sui)posed  pistol,  though 
sulHciently  resembling  a  deadly  weapon  to  be  readily  mistaken  for  one, 
was  but  an  inoffensive  toy. 

The  evidence  conducing  to  prove  that  the  appellant's  children  had 
been  sick,  and  that  he  had  recently  lost  considerable  sleep,  sliould  have 
been  admitted,  as  conducing  to  show  that,  at  the  moment  of  being 
aroused,  he  may  have  been  unconscious,  or  partly  so,  and  therefore, 
unable  readily  to  understand  the  real  circumstances  of  his  situation. 
The  physicians  introduced  would  have  proved,  as  the  appellant  avowed, 
that  loss  of  sleep  and  mental  anxiety  eacu  has  a  tendency  to  develop  a 
predisposition  to  somnolentia,  or  sleep  drunkeiuiess,  as  it  is  otherwise 
called,  and  in  this  they  would  but  corroborate  the  opinions  of  medical 
jurists. 

We  are  also  of  the  opinion  that  the  offered  evidence  in  regard  to  the 
alleged  threats  against  the  prisoner  should  have  been  admitted. 

The  central  position  of  the  defence  was,  that  the  prisoner  fired  the 
fatal  shots  while  partially  or  wholly  unconscious,  under  the  false  im- 
pression that  he  was  being  assaulted  by  the  deceased.  His  effort  was 
to  show  that  he  was  subject  to  a  peculiar  affection  which  made  him 
imagine,  when  suddenly  aroused  from  sleep,  that  he  was  being  assaulted 
by  the  person  arousing  him,  and  that  under  that  impression  he  was 
accustomed  to  make  unconsciously  violent  resistance ;  that  at  such 
times  he  mistook  the  mere  creatures  of  his  Imagination  for  real  facta 
and  circumstances.  If  he  had  been  threatened,  it  was  natural,  or  at 
least  not  unnatural,  especially  while  near  to  the  person  who  had  threat- 
ened him,  that  the  threat  should  make  such  an  impression  on  his  mind 
as  would  contribute  to  develop  with  more  than  ordinary  force  the  pre- 


SOMNAMBULISM. 


777 


Test  of  Liability  for  Criniiiml  Act. 


chsposi  ,on  to  imagine  himself  assaulted  and  to  make  resistance,  and 
particularly  so  when  on  being  aroused,  he  found  himself  in  the 
shTken      "^  '^''"'°'''  ^^  ''^'''"'  ''"  '''''  ^''"^  persistently  and  violently 

We  do  not  see  any  legitimate  bearing  the  fact  that  he  borrowed  the 
pistol  could  have  upon  any  of  the  issues  in  the  case,  and  what  he  said 
was  not  admissible  to  prove  that  he  had  been  threatened 

As  the  case  must  go  back  for  a  new  trial,  and  it  is,  in  some  of  its 
features,  one  of  llrst  impression,  we  will,  at  the  risk  of  beincr  prolix 
consider  the  law  applicable  to  it  somewhat  in  detail. 

There  are  several  phases  in  which  the  case  presents  itself,  all  of  which 
should  be  submitted  to  the  jury. 

1.  If  the  prisoner,  when  he  shot  the  deceased,  was  unconscious,  or 
so  nearly  so  that  he  did  not  comprehend  his  own  situation  and  the  cir- 
cumstances  surrounding  him,  or  that  he  supposed  he  was  being  assailed, 
and  that  he  was  merely  resisting  an  attempt  to  take  his  life  or  to  do  him 
great  bodily  injury  he  should  be  acquitted -in  one  case  because  he 
was  not  legally  responsible  for  any  act  done  while  in  that  condition, 
and  in  the  other,  because  he  is  excusable  on  the  ground  of  self-defence  • 
for  although  it  is  clear  that  he  was  not  in  danger,  and  had  no  reasonable 
grounds  to  believe  he  was,  yet  if,  through  derangement  of  his  percep- 
t.ve  faculties,  it  appeared  to  him  that  he  was  in  danger,  he  is  as  free 
from  punishable  guilt  as  if  the  facts  had  been  as  he  supposed  them 
to  be. 

2.  If  he  was  so  far  unconscious  when  he  fired  the  first  shot,  or  the 
first  and  second  that  he  supposed  he  was  defending  himself  against  a 
dangerous  assault,  and  regained  consciousness  before  the  second  or 
third  shot,  the  question  of  guilt  or  innocence  will  depend  upon  whether 
he  then  believed  in  good  faith  that  he  was  in  danger  of  losincr  his  life  or 
of  sustaining  great  bodily  injury.  ° 

It  was  not  necessary,  under  the  circumstances,  that  he  should  hare 
reasonable  grounds  to  believe  he  was  in  danger.  In  the  view  we  are 
now  taking  of  the  case,  we  are  supposing  he  was  unconscious  or  partly 
so  when  he  fired  the  first  shot.  If  so,  when  he  regained  consciousness 
and  found  himself  seized  and  held  by  a  stranger  who  was  struggling  to 
overpower  him,  it  would  be  unreasonable  to  expect  him  to  wait  until  he 
could  discover  the  purpose  or  apparent  purpose  of  his  antagonist,  as  it 
might  have  appeared  to  those,  who  in  the  full  possession  of  their  facul- 
ties  and  senses  had  witnessed  the  whole  affair.  But  if  after  he  fired 
he  became  conscious,  and  did  not  at  the  time,  in  good  faith,  believe  he 


778 


KLEPTOMANIA    AND   SOMNAMBULISM. 


Fiilii  V.  Coiimioiiwoalth. 


was  in  danger  of  loss  of  life  or  great  personal  injury,  he  is  guilty  of 
either  murder  or  manslaughter,  — murder  if  he  was  actuated  by  malice, 
manslaughter,  if  he  acted  without  malice. 

3.  Although  he  may  have  been  so  far  conscious  when  he  fired  the  first 
shot,  as  to  understand  what  he  was  doing,  yet  if  he  did  not  understand 
the  purpose  of  his  assailant,  and  believed  he  was  attempting  to  inflict 
on  him  great  personal  injury,  he  should  be  acquitted,  for  as  already 
remarked,  if  in  consequence  of  a  derangement  of  his  perceptive  facul- 
ties, or  from  being  suddenly  aroused  from  sleep,  and  finding  the 
deceased  holding  him  and  shaking  him,  he  believed  he  was  in  great 
danger  of  losing  his  life  or  suffering  great  personal  injury,  although 
there  was  in  fact  no  danger,  and  those  who  had  witnessed  the  affair 
had  no  reason  to  apprehend  danger,  he  is  no  more  guilty  than  if  there 
had  been  actual  danger.  Such  a  case  admits  of  np  other  test  than  the 
good  faith  of  the  prisoner,  to  be  judged  of  by  the  jtiy. 

4.  If  the  prisoner  was  conscious  of  what  he  was  himself  doing,  and 
that  the  purpose  of  the  deceased  was  merely  to  wake  him  up,  and  the 
prisoner  shot  him  simply  because  he  did  so,  he  is  guilty  of  either  mur- 
der or  manslaughter ;  murder  if  the  shooting  was  malicious,  manslaugh- 
ter if  without  malice. 

If  the  prisoner  is,  and  has  been  afflicted  in  the  manner  claimed,  and 
knew,  as  he  no  doubt  did,  his  propensity  to  do  acts  of  violence  when 
aroused  from  sleep,  he  was  guilty  of  a  grave  breach  of  social  duty  in 
going  to  sleep  in  the  public  room  of  a  hotel  with  a  deadly  weapon  on 
his  person,  and  merits,  for  that  reckless  disregard  of  the  safety  of  others, 
some  degree  of  punishment,  but  we  know  of  no  law  under  which  he 
can  be  punished.  Our  law  only  punishes  for  overt  acts  done  by  respon- 
sible moral  agents.  If  the  prisoner  was  unconscious  when  he  killed  the 
deceased,  he  cannot  be  punished  for  that  act,  and  as  the  mere  fact  that  he 
had  the  weapon  on  his  person  and  went  to  sleep  with  it  there  did  no  in- 
jury to  any  one,  he  cannot  be  punished  for  that. 

Instructions  two  and  three,  given  by  the  court,  are  inconsistent  with 
the  foregoing  views,  and  should  not  have  been  given. 

For  the  errors  indicated,  the  judgment  is  reversed,  and  the  cause  is 
remanded  for  a  new  trial  upon  principles  not  inconsistent  with  this 
opinion. 


MONOMANIA. 


779 


Kloptomaiiia  —  Steallnq;  Shoes, 


NOTES. 

§  70.  Monomania  —  Kleptomania  —  Stealing  Shoes  —  Test  of  Insanity. — In 
People  V.  Charles  Uprague,^  tried  in  the  Kings  County  Oyer  and  Terminer,  in 
1849,  it  was  laid  down:  1.  It  is  a  defence  to  au  indictment  for  crime,  that  the 
act  complained  of  was  done  under  an  insane  impulse,  which  at  the  time, 
destroyed  the  capacity  to  distinguish  between  right  and  wrong.  2.  On  tlie  trial 
of  an  indictment  for  rol)ljing  afemale  of  her  shoe,  in  daylight,  in  the  public  street 
of  a  city,  it  beii.^  proved  that  the  accused  had  been,  for  several  years,  and  ever 
since  an  injury  to  his  head,  which  it  was  supposed  had  affected  his  brain,  in  the 
habit  of  taking  the  shoes  of  females,  Avherever  he  could  Hud  them,  and  secreting 
them  without  any  apparent  object  for  so  doing,  and  that  insanity  was  a  hereditary 
disease  in  the  family  of  the  prisoner,  on  the  side  of  his  mother,  with  other  cir- 
cumstances tending  to  establish  monomania,  he  was  acquitted  on  tlie  ground 
of  insanity.    The  facts  were  these :  — 

The  prisoner  was  indicted  for  robbery,  alleged  to  have  been  committed  upon 
the  18th  of  August,  184!),  and  was  tried  at  the  Oyer  and  Terminer  for  Kings 
County,  on  the  10th  of  October  following.  Sarah  Watson  testilled  that  about 
eight  o'clock  on  the  morning  of  the  18th  of  August,  she  was  walking  along  Pearl 
Street,  in  the  city  of  Brooklyn,  and  hearing  some  person  behind  her,  looked 
around  and  saw  the;  prisoner,  who  immediately  seized  her,  threw  her  down,  and 
took  a  shoe  from  one  of  her  feet,  and  ran  away.  She  testified  that  at  the  time 
she  had  a  gold  chain  upon  her  person,  but  that  it  could  not  be  seen  by  the  pris- 
oner. She  also  stated  that  there  was  a  man  near  by,  who  was  unknown  to  her, 
but  who  hallooed  at  the  prisoner  and  gave  chase  to  him,  l)ut  that  the  prisoner 
outran  him  and  escaped.  It  was  admitted  by  the  prisoner's  counsel,  that  the 
shoe  of  Miss  Watson  was  found  in  tlie  prisoner's  overcoat  pocket,  about  ten 
o'clock  of  the  same  day,  at  the  printing  otrice  of  the  Long  Island  Star.  It  was 
proved  that  the  prisoner  was  a  printer  by  trade,  and  was  then  emplo5'ed  as  a 
journeyman  in  the  office  of  the  Star;  that  he  came  to  the  office  upon  that  morn- 
ing at  his  usual  time,  hung  up  his  overcoat  and  went  to  his  work  as  he  had  done 
before.  One  of  the  proprietors  of  the  Star,  hearing  of  the  circumstances  of  the 
outrage  upon  Miss  Watson,  and  her  description  of  its  perpetrator,  suspected  the 
prisoner,  and  demanded  of  liliii  the  shoe  he  had  taken  from  the  foot  of  a  young 
lady.  The  prisoner  replied,  "  It  is  in  my  overcoat  pocket."  The  shoe  was  taken 
from  the  pocket  of  the  prisoner's  overcoat,  and  afterwards  identified  by  Miss 
Watson  as  the  one  taken  from  her  in  the  street.  The  prisoner  made  no  attempt 
at  concealment  or  explanation. 

The  counsel  for  the  prisoner  admitted  that  if  the  prisoner  was  sane,  he  was 
guilty  of  the  crime  for  which  he  was  on  trial.  The  prisoner's  counsel  called  the 
Rev.  Isaac  N.  Sprague,  father  of  the  prisoner,  a  highly  respectable  Congrega- 
tional minister,  who  testified  that  the  prisoner's  age  was  twenty-five  years;  that 


1  2  Park.  43  (1849). 


780 


KLErrOMAXIA    AND    KOMXAMIIULISM. 


Notes. 


he  had  generally  roslded  in  the  family  of  tlie  witness,  hut  had  spent  a  year  with  a 
brother  ut  Ihirtford,  Connecticut,  wliere  lie  \ve:it  aiiout  lour  years  before;  tliat 
since  his  return  from  Jlartford,  the  prisoner  had  lived  wifli  tlie  witness;  tliat 
the  prisoner  was  nuirried  in  the  year  1847,  and  was,  with  his  wife,  living  at  the 
house  of  the  witness  at  the  time  of  tlie  assault  upon  Miss  Watson;  that  the 
prisoner  had  at  different  times  receive<l  wounds  and  bruises  ui)on  the  head  ;  that 
when  quite  young  he  was  struck  with  a  hoe  near  tlie  crown  of  the  head,  produc- 
ing an  open  wound,  wiiieh  after  some  time  closed  and  healed  up;  that  when 
about  twelve  years  old,  the  prisoner  fell  from  a  cherry  tree,  stril\ing  upon  his 
head;  that  witness,  with  liis  family,  moved  to  llurtfonl  in  18:57  or  1838,  and  soon 
after  the  prisoner  fell  from  tlie  balcony  of  a  second  story,  ami  was  brought  home 
insensible;  that  no  immediate  effect  seemed  to  be  produced  upon  the  prisoner's 
mind  by  this  accident,  but  that  soon  after  his  conduct  became  strange.  He  tes- 
titlcd  that  his  (witness's)  motlier  had  been  insane  for  eigiit  years,  and  some  part 
of  the  time  in  an  insane  hospital;  that  a  brother  of  his  mother  becami;  insane 
and  hung  himself;  that  two  sisters  of  his  mother  were  occasionally  insane;  that 
his  grandmother  on  Ids  mother's  side  was  also  insane.  He  stated  tliat  he  and  his 
wife  had  always  known  tlie  mind  of  tlie  prisoner  to  lie  not  so  strong  as  the 
minds  of  their  other  children;  that  after  the  fall  from  the  balcony  the  prisoner 
was  more  carefully  watched  and  kept  in,  and  some  painful  indications  were  de- 
veloped in  the  prisoner  —  as  at  times  a  remarkaijle  prominence  of  tlie  eye,  and  a 
dullness  which  appeared  to  increase,  and  a  physician  was  consulted.  An  effort 
was  made  to  educate  the  prisoner  for  college,  but  found  that  could  not  be  done. 
About  this  time  a  shoe  of  some  female  member  of  the  family  would  be  nussing, 
and  when  found  would  frequently  be  wet  and  crumpled  up;  that  a  girl  named 
Almira  Godfrey,  who  was  living  in  witness's  family  at  the  time,  was  at  first  sus- 
pected, but  at  length  one  of  her  shoes  was  missing,  and  wlien  found  was  also 
wet  and  crumpled  like  the  others.  The  family  tlien  suspected  Charley  (pris- 
oner) and  soon  found  it  was  he  who  took  away  the  shoes.  When  a  shoe  was 
missing,  it  would  be  found  sometimes  under  his  pillow,  sometimes  between  the 
straw  and  feather  bed,  sometimes  in  his  trunk,  and  sometimes  in  his  pocket, 
generally  with  his  clothes  wound  round  the  shoe,  as  if  to  conceal  it.  That  the 
prisoner  before  his  fall  from  the  balcony,  had  been  truthful,  and  of  a  frank  and 
open  demeanor,  and  willing  to  acknowledge  the  truth,  though  to  his  own  disad- 
vantage. After  it  was  found  he  took  the  shoes,  whenever  one  was  missed,  and  I 
spoke  about  it,  he  would  hang  his  head  and  say  he  did  not  know,  but  that  the 
shoe  would  be  found  somewhere  secreted.  On  some  occasions  when  a  shoe  had 
been  missed  and  found  under  his  pillow,  his  mother  would  say  to  him,  "Charley, 
another  shoe  gone,"  to  which  he  would  reply,  "  I'm  sure  I  didn't  do  it."  His 
mother  would  say,  '•  I  found  it  under  your  pillow,"  then  he  would  admit  it.  He 
seemed  not  to  have  a  memory  of  the  fact.  I  punished  him  for  taking  shoes,  but 
I  soon  thought  I  could  recognize  the  features  of  insanity  in  his  conduct.  Pains 
were  taken  to  keep  shoes  out  of  his  way,  and  they  were  put  in  drawers,  and 
he  -would  take  them  out  of  the  drawers  in  the  night.  At  times  the  prisoner  had 
fullness  of  eyes,  a  vacancy  of  the  eye  was  frequently  apparent.  We  kept  him  in 
evenings  and  away  from  exciting  amusements.  About  the  time  of  the  affair  for 
which  piisoner  is  on  trial,  he  had  complained  a  good  deal  of  headache;  that  wit- 


KLKITOMAMA. 


781 


Slfiiliiig  Slim-s. 


'var  Willi  a 
fort';  tliut 
iiL'ss;  tluil 
\u<^  at  thf 
;  that  tli( 
liead ;  tluil 
tl,  produc- 
that  when 
a;  upon  his 
I,  and  soou 
ught  home 
prisoner's 
.  He  tes- 
sonie  part 
mw,  insane 
sane;  that 
,  lie  and  his 
mg  as  the 
e  prisoner 
s  were  de- 
eye,  and  a 

An  effort 
)t  be  done, 
le  missing, 
;irl  named 
t  tlrst  sus- 
1  was  also 
rley  (pris- 
i shoe  was 
jtwecn  the 
lis  pocket, 

That  the 
.  frank  and 
iwn  disad- 
ised,  and  I 
at  that  the 
a  shoe  had 
"Charley, 

it."  His 
nit  it.  He 
shoes,  but 
ct.  Pains 
iwers,  and 
isoner  had 
ept  him  In 

affair  for 

that  wit- 


ness luul  sometimes  sent  Charles  (the  prisoner)  to  the  country.  Ho  was  onc(( 
away  for  about  two  years.  His  practice  of  taking  and  secreting  shoes  has  been 
continued  down  to  the  ju'esent  time,  although  it  has  Intermitted.  I  went  to  board 
with  him  last  May.  His  wife  would  miss  her  shoes  occasionally,  and  they  would 
bo  found  where  the  prisoner  had  .secreted  them.  On  cross-examination,  this  wit- 
ness said  that  he  saw  the  wound  from  the  hoe;  that  he  did  not  sec  the  wound 
caused  by  the  prisoner's  fall  from  the  cherry  tree,  which  took  place  in  Vermont. 
That  ho  saw  the  wound  occasioned  by  the  fall  from  the  balcony;  that  all  appre- 
hension passed  away  In  a  day  or  two  after  the  fall  from  the  balcony,  but  soon 
after  came  the  protruding  and  glasslncss  of  the  eye ;  that  he  was  then  between 
twelve  and  fourteen  years  old,  and  went  to  school ;  that  his  moral  sense  seemed 
to  be  somewh'it  blunted;  that  ho  was  not  as  truthful  as  before. 

There  was  also  read  In  defence  the  deposition  of  Thomas  Kprague,  of  Michi- 
gan (a  brother  of  prisoner),  and  of  Mary  E.,  his  wife,  and  of  Julia  A.  Hyde,  a 
sister  of  prisoner's  father,  and  of  Oliver  Hyde,  her  husband ;  of  Rebecca  Free- 
man and  Maria  King,  all  witnesses  living  out  of  the  State.  The  deposition  of 
Thomas  Sprague  and  wife  were  principally  to  the  habit  of  the  prisoner  while  liv- 
ing with  them,  to  take  shoes  of  ladies  and  secrete  tlit-in.  Some  of  the  deposi- 
tions spoke  of  the  fact  of  the  fall  from  the  cherry  tree  in  Vermont,  and  some 
of  them  proved  the  insanity  of  the  relatives  of  the  prisoner,  in  corroboration 
of  the  statement  of  the  prisoner's  father. 

Charles  H.  Nichols,  M.  1).,  testilled  that  he  was  twenty-nine  years  of  age; 
that  from  May,  1«47,  to  March,  1840,  he  was  at  the  State  Insane  Asylum  at 
Utica,  and  in  April,  1H4'.),  came  to  the  asylum  at  Bloomingdale,  of  which  ho  had 
the  charge  since.  That  w  hilo  he  was  at  Utica,  there  were  about  eight  hundred 
patients  in  the  asylum,  and  about  one  hundred  and  llfty  at  Bloomingdale.  This 
witness  testilled  that  from  the  testimony  in  the  case,  he  was  clearly  of  opinion 
that  the  prisoner  was  laboring  under  derangement  of  mind ;  that  the  act  charged 
appeared  to  him  to  bo  an  in.saue  act;  that  it  was  not  uncommon  for  mono- 
maniacs to  secrete,  and  to  endeavor  to  escape;  that  cases  of  strict  monomania 
were  very  rare,  but  do  exist,  and  in  such  cases  all  conduct  not  affected  by  the 
peculiar  delusion,  may  be  perfectly  rational.  The  cases  of  insane  impulse  are 
more  frequent  than  those  of  monomania;  acts  done  under  insane  impulse  are 
more  likely  to  be  remembered  than  those  done  under  the  influence  of  mono, 
mania.  Theodore  L.  Mason,  M.  D.,  testifled  that  insanity  is  the  genus,  mono- 
mania a  species,  and  that  the  impulsive  characteristic  may  be  common  to  both 
general  and  partial  insanity.  He  was  partially  insane,  and  that  the  act  for  which 
he  was  on  trial  was  done  from  an  insane  impulse.  The  evidence  being  closed, 
the  case  was  submitted  under  the  charge  of  the  court. 

The  Presiding  Judge  charged  the  jury,  that  there  was  no  question  made,  that 
the  prisoner  had  done  the  act  alleged  in  the  indictment,  and  that  the  only  *iues- 
tion  for  them  to  decide  was  whether  the  prisoner  at  the  time  of  the  act  done,  was 
a  responsible  moral  agent.  That  if  at  the  time  he  did  the  act  the  prisoner  was 
of  sound  mind,  and  capable  of  judging  between  right  and  wrong,  then  he  was 
guilty  of  the  crime  charged  upon  him,  but  if  lie  was  of  unsound  mind,  and  acting 
under  an  impulse  which,  at  the  time,  overthrew  or  obscured  his  knowiedge  or 
capacity  to  judge  of  right  and  wrong,  then  ho  was  not  capable  of  committing  a 


782 


KI.KITOMANIA    AND   KOMNAMIU'LISM. 


NotUH, 


crime,  atxl  must  he  ])r<>noiiiico<l  not  jrullty.  Tliat  It  soemcd  (lulto  unnecessary 
to  go  Into  any  consldenitlon  of  the  question  of  general  Insanity,  as  tliu  wliole 
defenee  iiud  l)een  put  u|)on  tliu  grounil,  tliat  tlu;  |)risoner  was  partially  insane, 
and  tliat  the  peeullarlty  of  ids  insanity,  consisted  in  what  ai)pear8  to  tliu  Hane 
mind  an  objectless  desire  to  possess  lilmself  of  the  shoes  of  females,  and  to  hide 
and  spoil  th(!m.  That  insanity,  as  a  defence,  was  an  alllnnatlvo  matter;  uud  in 
order  to  be  allowed,  must  bo  proved  beyond  all  reasonable  doubt.  If  they  were 
satlstled  beyond  reasonable  doubt  tliat  the  prisoner  did  the  act  cliarged  iu  the  in- 
dictment under  an  insane  impulse,  being  at  the  time,  incapable  of  liiiowing  right 
from  wrong,  it  would  be  their  duty  to  return  a  verdict  of  not  guilty;  but  if  tliey 
were  not  satisfied  of  the  prisoner's  Insanity,  It  would  be  tlieir  duty  to  give  a 
verdict  of  guilty.  After  a  short  absence  the  jury  returned  with  a  verdict  of  not 
guilty. 
Kleptomania,  It  was  held  iu  a  Texas  case  is  a  recognized  form  of  insanity .^ 

§  71.  Somnambulism. —  An  act  done  in  a  state  of  somnambulism  is  innocent. 

§  72.  Use  of  Opium.  —  In  liogers  v.  State,^  on  atrial  for  larceny,  it  appeared 
from  the  evidence  that  the  prisoner  was  addicted  to  the  habitual  and  excessive 
use  of  opium  in  some  of  its  forms,  and  there  was  evidence  from  which  it  might 
be  inferred  that  at  tlie  time  of  tlie  larceny  he  had  been  deprived  of  his  accustomed 
supply  of  the  drug.  He  sought  to  show  the  effect  of  such  deprivation  upon  his 
mental  condition,  but  the  trial  judge  refused  to  allow  him.  On  appeal  this  rul- 
ing was  reversed.  "We  tlilnlv,"  said  the  Supreme  Court,  "tlie  evidence  was 
competent,  as  tending  to  siiow  whether  or  not  he  was  at  the  time  in  a  condition 
mentally  such  as  to  be  able  to  commit  a  larceny." 

§  73.  Erotomania.  —  On  an  indictment  for  the  murder  of  a  man,  evidence  that 
the  prisoner  was  the  subject  of  erotomania,  defined  to  be  a  morbid  sexual  desire, 
is  inadmissible.* 

§  74.  Person  of  Low  Mental  Capacity.  —  In  Patterson  v.  People,^  evidence  that 
the  prisoner  was  of  low  mental  capacity  was  rejected.  "  The  offer  was,"  said  the 
court  in  the  words  of  the  counsel,  "  not  for  the  purpose  of  proving  1dm  non  com. 
vos  mentis,  but  the  measure  of  his  intellectual  capacity.  The  law  recognizes  no 
standard  of  unaccoun lability  less  than  that  which  the  offer  disclaimed  any  attempt 
to  establish.  If  a  low  order  of  intellect  and  great  ignorance  arising  either  from 
slowness  of  apprehension  or  a  neglected  education  are  to  excuse  a  homicide,  we 
shall  have  a  rule  which  will  give  far  greater  Impunity  to  crime  than  it  now  pos- 
sesses. Every  man  must  be  held  accountable  for  the  consequences  of  his  acts, 
consciously  and  delll)erately  performed,  unless  he  can  show  that  he  is  in  that 
condition  which  stamps  him  as  an  irresponsible  being,  and  the  proof  indicated  in 
the  offer  made  no  approach  to  this." 


1  liooneyw.  State,  10  Tex.  (App.)  620  (IMl) 
»  See  Fain  v.  Com.,  78  Ky.  183  (1879). 
*  33  Ind.  543  (1870). 


*  State  V.  Simms.  71  Mo.  638  (1880). 
>  46  Barb.  626  (1866). 


DEMENTIA. 


783 


r.  S.  V.  Ili'w.soii— U.  V.  N'ysf. 


nncccssary 
tlio  whole 
illy  Insane, 
tu  thu  Hunu 
md  to  hide 
lt;  and  in 
tlioy  were 
il  In  the  hi- 
iwlng  right 
but  If  they 
'  to  give  a 
lict  of  not 

janlty.i 

innocent. 

1  appeared 
I  excessive 
h  it  might 
^customed 
ti  upon  his 
il  this  rul- 
Jence  was 
condition 


As  to  wimt  iU'iivvA'  of  mental  Incapacity  eonstltntcw  dementia,  and  n-nders  a  per- 
Hon  not  criiulually  responsible  for  acts  otherwise  criminal,  see  State  v. 
Hicharda,^ 

§  7r,.  other  CaaeB.  — In  United  States  v.  Catherine  Hevsnn,''  the  prisoner  was 
indicted  for  the  murder  of  lier  child  by  throwing  It  overboard  from  a  steand)oat. 
Khe  lia<l  confessed  to  throwing  It  over,  but  said  limt  It  died  hi  a  lit,  using  language 
Indicating  an  unsound  mind.  It  appeiiivd  fn.ui  lh(>  evhU  iice  of  j)liyslclans  that 
she  had  been  subject  to  i)ucri)eral  fever,  and  that  the  tendeney  of  that  disease 
was  to  produce  tem|)()rary  alienation  of  miiul  and  deraniienient  of  the  natural 
affections.  Jiulge  Shjuy  instructed  the  jury  that  they  ought  to  lliul  her  Insane, 
■which  was  done. 

In  Iip(/.  V.  T>c,»  tried  before  Wiotitmax,  J.,  In  18(;2,  a  married  woman,  fondly 
attaclied  to  her  children  and  ajiparenlly  happy  in  her  family,  had  ijoisoned  t  ,voof 
them  with  dellbcratum  and  desigu.  It  appeared  that  there  was  insanity  in  the 
family,  and  from  lur  demeanor  before  and  after  the  act,  and  from  the  presence  of 
certain  exciting  causes  of  insanity,  the  experts  were  of  opinion  that  she  was 
laboring  under  actual  ccjrebral  dis(;ase,  and  that  she  was  in  a  paroxysm  of  insanity 
at  the  time  of  the  act.    Slie  was  acquitted. 


1  39  Conn.  891  (1873). 
»  7  Law  Uep.  361  (mi). 


•  3  P.  &  r.  247. 


lence  that 
lal  desire, 


lence  that 
"  said  the 
1  non  com. 
gnizes  no 
y  attempt 
ther  from 
ucide,  we 
now  pos- 
his  acts, 
is  in  that 
Heated  in 


0). 


g 

f( 

jl 


o 

SI 


CHAPTER    V. 


EVIDENCE  AND   PRA^'/nCE 


INSANITY  MUST  BE  CLEARLY  SHOWN  — EVIDENCE  OF  E  CCITEMENT. 

Statk  V.  Gkaviotte. 


[22  Lii.  Ann.  587.] 

In  the  Supreme  Court  of  Louisiana,  November,  1879. 

*    Hon.  John  T.  Ludeling,  Cnicf  Justice. 
"      J.  G.  Taliai'ekko,    I 
"     R.  K.  Howell, 
"     \V  G  Wyly  r  ■'Associate  Justices. 

"     W.  W,  Howe,  | 

Insanity  must  be  Clea?rly  Shown.— Insanity,  when  pleaded  in  defence  of  a  criminel 
act,  sucli  as  liomicide,  must  bo  clearly  shown  to  have  existed  at  the  time  of  the  com- 
mission of  the  act.  Therefore,  evidence  of  a  witi.css  to  show  a  state  of  mental 
excitement  in  the  accused,  produced  >>y  the  insulting  language  and  threats  used 
towards  him  by  the  deceas<5d,  his  wife's  v-v>  amour,  ut  the  time  of  the  killing,  is  not  ad- 
missible to  show  insacity. 

Appeal  from  the  IHrst  District  Court,  Parisli  of  Orleans.     Abell,  J. 

Simeon  Belden,  Attorney-General,  for  the  State. 

A.  A.  Atocha,  for  defendant  and  appellant. 

Taliafekuo,  J. —  The  defendant,  being  indicted  for  murder,  was  found 
guilty  of  manslaughter,  and  sentenced  to  hard  labor  in  the  penitentiary 
for  the  term  of  two  years  and  six  months.  He  has  appealed  from  the 
judgment. 

The  plea  set  up  in  his  behalf  on  the  trial  was  that  of  insanity.     A  bill 

of  exceptions  to  the  ruling  of  the  cotirt  excluding  evidence  offered  to 

sustain  the  plea  of  insanity  embraces  Uie  grounds  upon  which  the  plea 

was  taken.     The  defendant  offered  to  prove,  by  a  witness  introduced 

50  (785) 


786 


EVIDENCE    AND   PRACTICE. 


State  V.  (jlraviottc. 


on  the  part  of  the  defence,  that  on  the  night  previons  to  the  commis- 
mission  of  the  homicide,  the  witness  and  the  accused  saw  improper 
conduct  between  the  wife  of  tlie  latter  and  a  man  who  was  with 
her  in  the  house  of  tlie  accused.  Tlie  character  of  this  alleged  mis- 
conduct was  sought  to  be  elicited  by  a  question  put  to  the  witness. 
The  evidence  was  offered  to  show  such  a  state  of  mental  excitement  in 
the  defendant,  produced  by  wliat  he  had  witnessed,  and  the  insulting 
language  used  towards  him  by  his  wife's  paramour,  as  might  become  a 
predisposing  cause  of  insanity.  The  evidence  was  objected  to  on  the 
part  of  the  State,  and  rejected  by  the  court  as  irrelevant  and  inad  ssi- 
blc  to  prove  insanity.  We  thinic  the  ruling  correct.  In^..  lih ,  when 
pleaded  in  defence  of  a  criminul  act,  must  be  clearly  shown  to  have 
existed  at  the  time  of  the  commission  of  the  act.  Vague  conjectures 
as  to  a  probable  existoiice  cf  mental  aberration  fi'om  supposed  predis- 
posing causes  are  quite  too  sultlimated  to  possess  weight  in  the  inquiry 
as  to  the  sanity  or  insanity  of  an  accused  party. 

The  counsel  of  the  defendant  further  asked  the  courrt  to  chage  the  iiiry 
as  follows:  First.  There  is  no  presumption  of  malice  in  this  ci  >,  if 
any  proof  of  alleviation  or  excuse  arise  out  of  the  evidence.  Secoiiu. 
The  existence  of  malice  is  not  presumable  in  this  case,  if,  ou  any  theory 
consistent  Avith  the  evidence,  the  homicide  was  excusable.  Third.  If, 
on  the  whole  evidence  presented,  there  is  any  hj'pothesis,  consistent 
with  the  conclusion  that  the  homicide  was  excusable,  the  accused  cannot 
be  convicted. 

The  fourth  and  fifth  points  are  mere  reiterations  of  the  grounds  upon 
whicli  the  testimony  was  offered  to  show  insanity  and  which  was  re- 
jected by  the  court. 

To  these  requirements,  in  their  order,  the  judge  charged  the  jury : 
1.  That  if  there  was  alleviation  or  excuse,  there  could  be  no  murder; 
the  offence  would,  at  most,  be  only  manslaughter.  2.  The  court  de- 
clined to  give  the  charge  required  under  this  head,  because  it  could  only 
do  80  by  referring  to  the  evidence,  which  it  has  no  right  to  do.  3. 
The  jury  was  charged  expressly,  that  if  the  homicide  were  excusable, 
they  must  acquit. 

We  find  no  error  in  the  charges  given  to  the  jury.  The  de- 
fendant has  failed  to  present  a  case  requiring  this  court  to  grant 
relief. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  judgment  of 
the  District  Court  be  affirmed. 


ADL'LTERV   OF   WIl'K. 


787 


State  V.  John. 


',  v< 


ADULTERY  OF  WIFE  — WHEN  EVIDENCE  INADMISSIBLE  —  DRUNKEN- 
NESS—INSANE  DELUSIONS— DECLARATIONS. 

State  v.  John. 

[8  Ircd.  (L.)  330;  49  Am.  Dec.  8!)G.] 

Jn  the  Supreme  Court  of  North  Carolina,  June  Term,  1848. 

Hon.  Thomas  Ruffin,  Chief  Justice. 
"     Frkdkrick  Nash,       ) 
"     WiLLiA.M  II.  Battlk,  )  <^«<^^es. 

1.  Adultery  of  Wife  —  Evidence  of,  not  Admissible,  when,  — On  an  indictment  for 
inurdLT,  evidence  that  Iho  prisoner's  wife  had  been  in  tlie  habit  of  committing  adul- 
tery with  the  deceased  is  inadmissible.  Nothing  but  finding  a  man  in  the  very  act  can 
mitigate  the  homicide  from  murder  to  manslaughter. 

!*.  Voluntary  Drunkenness  will  not  mitigate  a  crime. 

3.  Declarations  of  Prisoner,  when  admissible  on  question  of  his  insanity. 

4.  Insane  Delusions.  —  When  is  a  criminal  act  done  under  an  insane  delusion,  not  pun- 

ishable, i^uceref 

Appeal  from  the  Superior  Court  of  Craven  County,  Spring  Term, 
1848. 

The  prisoner  was  indicted  for  the  murder  of  Ben  Shipman,  a  slave- 
Verdict  of  guilty  and  sentence  of  death  pronounced.  The  prisoner 
appealed. 

The  Attorney-Oenn'al,  for  the  State. 

,T.  H,  Bryan,  for  the  prisoner. 

Battle,  J.  —  We  have  corsidered  the  questions  presented  by  the 
counsel  for  the  prisoner,  in  Ids  bill  of  exceptions,  w'.th  all  that  care  and 
anxiety  for  a  right  decision  which  tlreir  importance,  both  to  the  pris- 
oner and  to  the  State,  imperatively  df;manded.  We  have,  nevertheless, 
been  unable  to  find  in  the  errors  ass.igned  any  thing  o*  which  the  pris- 
oner has  a  right  to  complain.  Tne  first  exception  is,  that  the  court 
crrel  in  rejecting  "  the  evidence  offered  to  prove  the  adultery  of  the 
prisoner's  wife  vith  tlie  deceased."  This  testimony  Wi.3  offered  to 
prove,  :iot  that  the  deceased  was  found  by  the  prisoner  in  the  act  of  adul- 
tery with  his  wife  at  the  time  when  the  homicide  was  committed,  but  that 
"  an  adulterous  intercourse  has  been,  for  some  time  preceding  the  homi- 
cide, carried  on  between  them  ;"  and  the  counsel  insisted  that  a  know- 
ledge, or  even  belief,  of  such  adulterous  intercourse  by  the  prisoner  would 
mitigate  the  crime  from  murder  to  manslaughter.  No  authority  has 
been  produced  in  support  of  this  position,  and,  so  far  as  we  can  learn. 


788 


EVIDENCE    AND    rUACTICE. 


State  V.  John. 


al  the  authorities  arc  directly  against  it.  Hale,  Foster,  East  and  Russell 
a  1  agree  instating  that,  to  extenuate  the  offence,  the  husband  must  find 
the  deceased  in  the  very  act  of  adultery  with  his  wife.  And  so  it  must 
be  upon  principle.  The  law  extends  its  indulgence  to  a  transport  of 
passion,  justly  excited,  and  acting  before  reason  has  time  to  subdue  it, 
but  not  to  a  settled  purpose  of  vengeance,  no  matter  how  great  the  in- 
jury or  gross  the  insult  which  first  gave  it  origin.  A  belief  —  nay,  a 
knowledge  —  by  the  prisoner  that  the  deceased  had  been  carrying  on  an 
adulterous  intercourse  with  his  wife  cannot  change  the  character  of  the 
homicide.  The  law  on  this  subject  is  laid  down  with  much  clearness  and 
force  by  Foster  in  his  Crown  Law,'  and  with  him  all  the  other 
writers  substantially  agree :  "A  husband,  finding  a  man  in  the  act  of 
adultery  with  his  wife,  and,  in  the  first  transport  of  passion,  killethhim? 
this  ts  no  more  than  manslaughter.  But  had  he  killed  the  adulterer 
deliberately  and  upon  revenge,  after  the  fact  and  sufficient  cooling  time, 
it  had  been  undoubtedly  murder.  For,  let  it  be  observed,  that  in  all 
possible  cases  deliberate  homicide,  upon  a  principle  of  revenge,  is  mur- 
der." As,  then,  the  evidence  which  was  offered  to  show  the  adulterous 
intercourse  between  the  prisoner's  wife  and  the  deceased  could  not,  if 
received,  have  changed  the  nature  of  the  offence,  the  court  did  not  err 
in  rejecting  it.  But  it  is  argued  here  that  the  prisoner  had  just  reasons 
for  believing  that  the  deceased  was  engaged  in  the  act  of  adultery  with 
his  wife  at  the  very  time  when  he  broke  into  the  house  of  the  deceased 
and  killed  him.  It  may  well  be  doul)ted  whether  the  testimony  given  on 
the  trial  supports  this  view  of  the  case ;  but  if  it  were  admitted  that  it 
did,  it  could  be  of  no  avail  to  the  prisoner.  It  is  the  sudden  fury,  ex- 
cited by  finding  a  man  in  the  very  act  of  shame  with  his  wife,  which 
mitigates  the  offence  of  the  husband,  who  kills  his  wrong-doer  at  the 
instant;  but  to  the  offence  of  one  who  kills  upon  passion,  excited  by  a 
less  cause  —  by  a  mere  belief  of  the  act  —  the  law  allows  of  no  mitiga- 
tion. 

The  second  exception  is  "for  misdirection  of  the  court  on  the  sub- 
ject of  drunkenness."  All  the  writers  on  the  criminal  law,  from  the 
most  ancient  to  the  most  recent,  so  far  us  we  are  aware,  declare  that 
voluntary  drunkenness  will  not  excuse  a  crime  committed  by  a  man, 
otherwise  sane,  whilst  acting  under  its  influence.  Even  the  cases  relied 
upon  by  the  counsel  for  the  prisoner  ~  all  ackiiowledge  the  general  rule, 
but  they  say  that,  when  a  legal  provocation  is  proved,  intoxication  may 


1  p.  296. 

a  Kex  V.  Meakiu,  7  C.  &  P,  297  (32  Eng.  C. 


1..  5U};    Kex  v.  Thomas,    Id,    817,    750;    1 
Uuse.  uu  Cr.  8. 


ilast  and  Russell 
sbaud  must  find 
And  so  it  must 
)  a  transport  of 
le  to  subdue  it, 
ow  great  the  in- 
belief  —  nay,  a 
I  carrying  on  an 
character  of  the 
•h  clearness  and 
1  all  the  other 
1  in  the  act  of 
ion,  killethhimt 
1  the  adulterer 
nt  cooling  time, 
rved,  that  in  all 
•evenge,  is  mur- 
w  the  adulterous 
i  could  not,  if 
ourt  did  not  err 
lad  just  reasons 
f  adultery  with 
)f  the  deceased 
imony  given  on 
dmitted  that  it 
idden  fur^',  ex- 
his  wife,  which 
)ng-doer  at  the 
n,  excited  by  a 
s  of  no  mitiga- 

turt  on  the  sub- 
law,  from  the 
re,  declare  that 
itted  by  a  man, 
the  cases  relied 
e  general  rule, 
toxication  may 

Id.    817,    750;    1 


DIHNKENXESS    AND    ntOVOCATK  ).\  . 


789 


Adultery  of  Wife. 


be  taken  into  consideration  to  ascertain  whether  the  sla3'er  acted  from 
malice  or  from  sudden  passion,  excited  1)y  the  provocation.  Whether 
the  distinction  is  a  j)roper  one  or  not,  we  do  not  protend  to  say.  It 
has  been  doubted  in  England,  and  it  is  a  dangerous  one,  and  ought  to 
be  received  with  great  caution.  But  whether  admitted  or  not,  it  has  no 
bearing  upon  the  i)rescnt  case.  There  is  not  a  particle  of  testimony  to 
show  that  the  prisoner  was  acting,  or  can  be  supposed  to  have  been  act- 
ing, under  a  legal  provocation  ;  and  there  wiis,  therefore,  no  cause  for 
the  application  of  the  principle  for  wiiich  tiic  counsel  contends. 

The  third  exception  is  "  liecause  the  court  rejected  a  i)art  of  the  evi- 
dence tending  to  show  that  the  prisoner  was  laboring  under  monomania 
on  the  subject  of  his  wife's  adultery  with  the  deceased."  Tlie  testi- 
mony offered  and  rejected  was  "  tlic  dechu-utions  of  the  i)risoner,  made 
some  time  before  the  homicide."  We  are  not  sure  that  we  correctly 
understand  this  exception  in  tlie  connection  in  which  it  is  made.  One 
of  the  grounds  of  defence  taken  by  the  ])risoner  wa«  tli:>t  he  was  insane 
at  the  time  when  he  committed  the  homicide,  and,  so  fcir  as  we  can  dis- 
cover, he  was  allowed  to  introduce  all  the  testimony  in  his  i)ower  to  sus- 
tain it.  Of  that,  and  of  the  cliarge  of  the  judge  in  relation  to  it,  no 
complaint  is,  or  can,  be  nuide  by  the  prisoner.  Monomania  is  one 
among  the  various  forms  of  insanity,  it  is  a  partial  insanity  upon  one 
particular  subject.  As  a  species  of  insanity,  it  was  competent  for  the 
prisoner  to  have  proved  it,  and  he  was  not  restricted  in  his  proof  of  it, 
so  lonjT  as  he  insisted  on  it  under  the  defence  of  insani£v.  It  was  not 
until  after  he  had  closed  his  testimony  on  that  subject,  and  also  on  the 
subject  of  drunkenness,  that  he  offered  the  testimony  which  was  re- 
jected. We  do  not  well  sec  how  the  one  could  be  separated  from  the 
other.  The  declarations,  too,  what  were  they?  Were  they  statements 
of  facts,  by  the  prisoner  offered  as  evidence  of  those  facts?  If  so, 
they  were  clearly  inadmissible.  Were  they  wild,  incoherent  and  dis- 
jointed exclamations  in  relation  to  his  wife's  adultery,  evincing  that 
they  proceeded  from  an  unsound  mind?  If  so,  the  prisoner  should 
have  offered  them  as  proof  under  his  defence  of  insanity,  and  they 
would  doubtless  have  been  received.  If  we  are  to  judge  of  their  na- 
ture from  the  declarations  which  were  received,  as  having  been  made  on 
the  night  of  the  homicide,  and  proved  by  the  witness  Dausey.  tiien  tiiey 
ought  to  have  been  rejected  as  the  mere  idle  ravings  of  a  drunken  man. 
Our  dirticulty  in  understanding  the  exception  is  still  further  increased 
by  the  apparently  inconsistent  grounds  of  defence  assumed  for  the  pris- 

1  Rex  V.  Carroll,  7  C.  &  V.  115  {32  Eng.  C.  L.  417). 


790 


EVIDENCE    AND   PUACTICE. 


Sawvor  v.  State. 


oner.  One  ground,  which  we  have  ah'eady  considered,  is  that  his  wife 
was  actually  guilty  of  adultery  with  the  deceased.  Now,  if  by  mono- 
mania on  that  subject  is  meant  that  the  prisoner  was  laboring  under 
mental  delusion  that  his  wife  was  guilty,  when  in  truth  she  was  inno- 
cent, then  the  fact  of  her  innocence  is  directlj'  opposed  to  what  was  as- 
serted and  offered  to  be  proved  by  the  prisoner's  counsel.  But  if  the 
prisoner's  wife  was  guilty,  and  the  insane  delusion  of  his  mind  was 
that  he  had  the  right  to  kill  her  paramour,  then  it  would  raise  a  most 
important  and  interestii:  ,  jucstion  whether  insanity  to  that  extent  only 
would  render  him  irresponsible  for  crime.  It  seems  to  be  settled  by  the 
highest  authority  in  England  that  it  would  not. '  But  we  do  not  wish  to 
express  an  opinion  upon  it  until  the  question  is  brought  directly  before 
us.  In  this  case  we  are  compelled  to  decide  against  the  prisoner,  be- 
cause he  has  not  shown  us  that  he  has  been  deprived  of  anj'  benefit  or 
advantage  to  which  by  law  he  was  entitled. 

Judgment  affirmed. 


EVIDENCE  — ADULTERY  OF  WIFE  OF  PRISONER —  INSANITY  SHOULD 
NOT  BE  INFERRED  —  CAUTION  TO  JURY. 

Sawyer  v.  State. 

[35  Intl.  80.] 

In  the  Supreme  Court  of  hidiana,  May  Term,  1871. 

Hon.  Alexander  C.  Downey,  Chief  Justice. 
"     Jt)IlN  ri;TTiT, 
"    James  L.  WoKDEX,     i     jmdget. 

"      SaAUEL  II.BUSKIKK, 


1.  Evidence  —  Irrelevant  on  Question  of  Sanity  —  9.  was  indicted  for  the  murder  of 

hia  wife.  «>>  the  ti-i:il  lie  offered  eviduii(-c  tli:u  she  liiid  fur  ii  long  timi;  been  liaving 
an  adulteruts*  intercourso  with  one  B.  and  others,  uf  wiiich  S.  had  for  a  longtime  been 
cognizant.    Held,  inadmiM-ible.  both  on  the  (lue&tjon  of  heat  of  passion  and  of  insanity. 

2.  Insanity  Should  Not  be  Inferred.  —  A  jnry  is  not  autliorizcd  to  find  a  prisoner  in. 

sane  beci.-f.c  some  cause  exi:?ted  wliich  uuglit  tend  to  i)roduce  insanity. 

3.  Instructions  —  Caution  to  Jury.  —  It  is  proper  for  the  court  to  direct  the  attention  of 

tlie  jury  lo  ilie  defiMiCL  if  lusanity,  and  instruct  them  that  it  should  be  carefully  and 
and  uitelligeutly  bcrutuuzi'.l. 

1   Stark  on  Non  Coni))i>8,Gf;;  note  to  Keg.  v    Higginson,  1  ('.  &  K.,  and  47  Fug.  C.  L.  130. 


at  bis  wife 
by  mono- 
ring  under 
was  inno- 
lat  was  as- 
But  if  the 
I  mind  was 
lisc  a  most 
xtent  only 
tied  by  the 
lot  wish  to 
itly  before 
isoner,  be- 
benefit  or 

iffirmed. 


SHOULD 


le  murder  of 
been  iiaying 
ngtime  been 
1  ot  insanity. 

prisoner  in- 

attention  of 
lare  fully  aud 


C.  L.  130. 


8AWYEK   V.  STATE. 


791 


Facts  In  the  Case. 


Appeal  from  the  Vanderburg  Criminal  Circuit  Court. 

T.  L.  Davis  and  J.  G.  Ilolliiigsivorth,  for  appellant. 

W.  P.  Hargrave  and  B.  W.  Hanna,  Attorney-General,  for  the  State. 

WoKDEN,  J. — The  appellant  was  indicted  for,  and  tried,  and  con- 
A'icted  of,  the  murder  of  his  wife,  Lizzie  Sawyer,  and  sentenced  to  be 
executed.  The  case  made  against  the  accused  by  the  evidence  is,  in 
substance,  as  follows :  — 

The  deceased,  at  the  time  of  the  homicide,  was  employed  as  chamber- 
maid on  the  steamboat  G.  W.  Thomas,  which  was  then  lying  at  the 
wharf  in  the  city  of  Evansville,  in  Vanderburg  Count}-,  in  this  State. 
On  the  evening  of  the  2d  of  February,  1871,  one  Delia  Wilson,  an  ac- 
quaintance of  the  deceased,  went  on  board  the  boat  to  see  her.     Soon 
after  Delia  went  on  board,  the  accused  went  on  board  the  boat,  and 
went  to  that  part  of  the  boat  where  the  deceased  and  Delia  Wilson  were. 
The  witness  to  this  part  of  the  transaction,  Delia  Wilson,  says  that  the 
accused  did  not  seem   to  be  angry,  but  spoke  to  her  and  the  deceased 
very  pleasantly,  and  inquired  after  their  health,  and  sat  down  by  a  ta- 
ble where  deceased  was  ironing.     All  three  of  the  parties  talked  and 
laughed  together  for  a  while.     After  some  casual  conversation,  the  ac- 
cused asked  the  deceased  if  she  would  go  and  live  with  him  if  he  would 
get  a  house  off  Water  Street.    The  deceased  made  !;im  no  answer.    The 
witness,  Wilson,  asked  her  Avhy  siic  did  not  answec  him.     The  deceased 
replied  that  the  accused   always  came  to  her  chunk,  and  that  was  the 
reason  she  wouldn't  talk  to  him.     The  ticcused  then  asked  the  deceased, 
addressing  her  as  "baby,"  if  she  would  go  and  live  with  him  if  he 
would  get  a  house  in  another  portion  of  the  city,  to  which  she  replied 
that  he  knew  her  mind  was  made  up ;  thtit  she  had  told  him  when  the 
boat  was  in  port  on  the  last  trip  what  she  was  going  to  do  ;  that  she 
then  told  him  she  never  intended  to  live  with  him   again.     In  the  mean- 
time the  accused  had  got  up  from  where  he  had  been  sitting,  and  moved 
two  or  three  steps,  taking  a  seat  near  where  the  smoothing  irons,  which 
the  deceased  was  using,  were  sitting.     At  the  point  of  the  conversation 
above   stated,   the  appellant  seized  one    of    the  iroiis,   weighing  be- 
tween four  and  five  pounds,    and  struck  the  deceased  on  the  head 
tlierewith.     He  struck  her  twice  before  she  fell,  but  kept  on  striking  af- 
ter she  had  fallen,  as  the  witness  says,  as  much  as  two  dozen  times. 
The  witness  became  frightened,  and  ran  into  the  pantry  of  the  boat, 
and  fastened   the  door,  but  she  heard  tlie  deceased  screaming  for  a 
minute  or  two  after  that,  and  then  she  ceased.     Wlien  the  witness  came 
out  of  the  i>anlrv,  she  saw  the  appellant  jninping  from  the  boat  to  the 
river  bank,  with  the  smoothing  iron  in  his  hand.     This  witness  also  tes- 


792 


EVIDENCE   AND   PRACTICE. 


Sawyer  v.  State. 


tifies  that  on  the  day  before  the  murder  she  talked  with  the  appellant 
when,  as  she  says,  he  seemed  to  think  the  deceased  "had  been  spending 
his  money  on  anotlier  man."  The  deceased  had  been  on  the  boat  about 
a  month. 

Edward  Green,  the  '  abin-boy  of  the  boat,  heard  screams  of  murder 
from  the  direction  of  tlie  stern  of  the  boat,  and  ran  and  opened  the 
door  leading  from  the  ladies'  cabin  to  the  washing  and  ironing  room, 
and  there  saw  tlie  prisonei*  have  tlie  deceased  down  on  the  floor,  with 
his  knocs  on  her  bi'east,  striking  her  on  the  head  with  the  smoothing 
iron.  When  the  witness  opened  the  door,  the  prisoner  ran  at  him  and 
told  him  to  get  out  or  he  would  kill  him.  The  witness  ran  out,  when 
the  accused  shut  the  door  and  bolted  it,  and  then  began  beating  the  de- 
ceased again.  The  porter  of  the  l)oat  came  and  broke  the  door  open, 
at  which  time  some  six  persons  had  gathered  around,  and  the  appellant, 
swearing  he  would  kill  all  of  them  if  they  did  not  get  out  of  the  way, 
ran  down  on  deck,  and  jumped  off  the  boat.  When  the  appellant  left 
the  boat,  the  parties  went  to  where  the  deceased  was  Ijnng,  and  found 
she  was  dead.     Her  head  was  brutally  and  h'orribly  mangled. 

After  the  appellant  left  the  boat,  it  appears  that  he  ran  about  two 
miles  from  town,  but  then  returned  and  surrendered  himself  up  to  the 
officer,  saying  that  he  had  concluded  to  come  back  and  surrender  him- 
self up  because  he  knew  he  would  be  [)ursued  and  taken.  He  said  at  dif- 
ferent times  after  the  murder,  that  if  he  had  not  killed  the  deceased,  he 
had  failed  to  do  what  he  intended  ;  that  he  killed  her  because  she  had 
been  sleeping  with  one  Bibbs,  and  others,  and  that  he  only  regretted 
that  he  could  not  kill  Bibbs  also.  He  also  said  he  was  now  satisfied, 
and  they  might  hang  him,  shoot  him,  or  do  what  they  pleased  with  him. 

It  was  proved  by  another  witness,  who  had  some  acquaintance  with 
the  appellant  and  his  wife,  that  she  did  not  know  why  the  deceased  left 
home  to  go  on  the  boat,  but  that  she  was  kept  by  another  man  by  the 
name  of  Bibbs.  On  one  occasion  the  appellant  came  home  and  after 
talking  with  the  deceased  a  while  about  her  conduct  with  other  men, 
he  said  to  her  that  if  i,\\e  did  not  quit  running  with  other  men  he  would 
smother  her  in  her  heart's  blood,  to  which  she  replied,  "Well,  then, 
you  can  kill  me,"  and  left  the  room.  On  another  occasion,  aboutthree 
weeks  before  the  murder,  appellant  said  to  tiie  deceased,  that  if  she 
did  not  behave  herself  and  quit  running  with  other  men,  he  would  kill 
her. 

It  appears  b}'  the  evidence  that  the  appellant  is  below  the  aver.'  ge  of 
mankind  in  point  of  mental  capacity  and  intelligence,  but  he  appears  to 
us  to  have  had  abundant  mind  to  be  in  every  way  responsible  for  his 


ADULTERY   OF   AVIFE. 


793 


Kviiloiico  of,  Irrck'vaiit. 


conduct;  and  we  may  add  tliat,  although  there  was  evidence  given  to 
show,  in  the  language  of  the  l)ill  of  exceptions,  "  the  causes  that  tend 
to  produce  temporary  insanity,"  there  was  nothing  in  the  case  that 
shows  any  mental  derangement  on  tlio  part  of  the  accused. 

The  appellant  offered  to  prove  "that  the  deceased,  Lizzie  Sawyer, 
had  for  a  long  time  previous  been  having  adulterous  intercourse  with  a 
man  by  the  name  of  Bibbs,  and  others,  of  which  adulterous  conduct 
the  defendant  had  for  a  long  time  been  cognizant."  This  evidence  was 
rejected,  on  objection  made  by  the  State,  and  the  defendant  excepted. 
This  evidence,  offered  with  a  view  to  justifjs  or  in  any  way  palliate,  the 
offence,  was  utterly  incompetent,  and  correctly  rejected.  It  assumes 
that  the  defendant  had  "  for  a  long  time,"  been  cognizant  of  his  wife's 
adultery.  If  he  had  been  thus  for  a  long  time  apprised  of  her  guilt  in 
that  respect,  there  had  been  an  abundance  of  time  for  the  ebullition  of 
passion,  which  might  be  supposed  to  arise  on  being  first  apprised  of  the 
fact,  to  subside.  After  the  lapse  of  time  sufBcient  for  the  passions  to 
cool,  and  for  reason  to  resume  her  swaj',  the  killing  was  just  as  crim- 
inal and  indefensible  as  if  the  deceased  had  never  been  guilty  of  con- 
jugal infidelity.  We  do  not  determine  what  might  have  been  the  effect 
of  the  adultery  of  the  deceased  had  the  homicide  been  perpetrated  by 
the  appellant  immediately  upon  discovering  the  fact.  It  is  sufficient  to 
say  that  if  the  facts  offered  to  be  proven  were  established,  they  would, 
in  ii'^  way,  excuse  or  mitigate  the  offence.^  There  migbt  be  numerous 
authoritieo  cited  upon  the  i:)oint,  both  ancient  and  modern,  but  it  is 
deemed  unnecessary. 

It  is  claimed,  however,  that  the  evidence  should  have  been  permitted 
to  go  to  the  jury,  on  the  ground  that  it  tended  to  establish  the  insanity 
of  the  accused.  It  appears  to  us  that  the  appellant  had  the  full  bene- 
fit, on  the  trial,  of  the  fact  that  he  believed  that  the  deceased  had  been 
guilty  of  continued  adultery,  if  that  belief  had  any  tendency  to  pro- 
duce mental  derangement.  His  statements,  before  and  after  the  mur- 
der, show  that  he  entertained  that  belief,  or  perhaps  we  should  say, 
that  he  knew  the  fact.  But  the  evidence,  as  offered,  was  Incompetent 
for  that  purpose. 

It  was  testified  by  a  physician,  that  "  any  excitement,  an  impression 
that  a  great  wrong  has  been  inflicted  upon  a  man,  protracted  thought 
upon  any  subject,  and  others  that  might  be  enumerated,"  are  causes 
that  tend  to  produce  temporary  moral  insanity.  It  is  claimed,  as  we 
understand  the  argument,  that  inasmuch  as  the  infidelity   of   the  de- 


1  Statet'.  Samuel,  3  Jones  (\.  v.)  74 ;  state  t;  John,  8  Ired.  ;i,'iO. 


794 


EVIDENCE   AND   PRACTICE. 


Sawyer  v.  State. 


ceased  was  a  great  wrong  inflicted  upon  the  defendant,  and  inasmuch 
as  his  mind  would  protractedly  dwell  upon  the  subject,  the  evidence  was 
competent,  us  tending  to  show  the  existence  of  an  exciting  cause  of  in- 
sanity. 

This  argument  assumes  that  a  jury  may  infer  the  existence  of  insanity 
from  proof  merely  of  the  existence  of  a  cause  that  may  tend  to  produce 
it,  without  any  proof  whatever  that  the  effect  followed  the  cause.  If  it 
were  a  case  where  a  given  effect  must  follow  the  cause,  there  would  bo 
force  in  the  argument,  because  proof  of  the  cause  would  be  proof  of 
the  effect.  But  we  know  that  the  various  causes  tliat  may  tend  to  pro- 
duce insanity  very  frequently  fail  to  produce  any  such  effect;  and  it 
seems  to  us  tliat  it  is  not  competent  to  prove  the  existence  of  such  ex- 
citing cause  unaccompanied  with  some  proof  that  the  effect  followed  the 
cause.  Indeed,  a  jury  would  not  be  authorized  to  find  a  man  to  be  in- 
sane, without  proof  on  the  subject  other  than  the  fact  tliat  a  cause  ex- 
isted that  tended  to  produce  insanity.  Thus  in  the  case  of  Bradley  v. 
State,'  the  court  below  charged  the  jury,  that  "  if  it  had  been  proved 
that  the  mother  of  the  defendant  was  insane,  and  that  insanity  in  the 
mother  raises  a  strong  presumption  that  it  is  transmitted  to  the  offspring, 
yet  it  rests  upon  the  defendant  to  prove  that  he  was  insane  at  the  time 
the  act  was  committed.  Tiie  facts  that  the  motlier  was  insane,  tliat  the 
twin  brother  of  the  mother  was  also  insane,  and  that  a  cousin  was  in- 
sane, if  proved,  would  not  be  sufficient,  of  themselves,  to  show  insanity 
in  the  defendant,  but  are  facts  strongly  tending  to  show  hereditary  in- 
sanity in  the  family,  and  proper  for  you  to  consider  with  the  other  tes- 
timony in  the  case,  to  aid  you  in  determining  whether  the  defendant  was 
insane  or  not,  when  the  act  was  committed."  This  charge  was  held  to 
be  correct. 

The  evidence  offered  was  not  accompanied  with  any  offer  of  evidence 
to  prove  the  actual  insanity  of  the  defendant,  nor  was  there  any  evi- 
dence introduced  that  had  any  legitimate  tendency  to  prove  insanity ; 
and  whatever  might  have  been  the  law  of  the  case  had  evidence  been  in- 
troduced or  offered,  in  connection  with  that  rejected,  tending  to  prove 
the  defendant's  insanity,  we  think  the  evidence  as  offered,  was  rightly 
jcjected. 

Tlie  appellant  moved  for  a  new  trial,  upon  the  ground,  amongst  other 
things,  that  the  court  erred  in  giving  the  first,  second,  third,  fourth,  and 
eighth  instructions  to  the  jury. 


I  31  Ind.  492. 


INSANITY   AS   A   DEFENCE. 

Cliurgo  of  the  Court. 


795 


The  charges  given  to  the  Jury  are  too  long  to  be  here  set  out  in  full, 
but  we  find  no  error  in  tlieni.  They  place  the  wliole  law  of  the  case 
before  the  jury  in  ([uitc  as  favorable  a  light  us  tlie  a|)i)ellant  could  ask. 
No  objection  is  pointed  out  in  the  brief  of  counsel  fur  iippt-llant  to  any 
of  the  charges  except  the  second,  which  is  as  follows:  "If  you  shall 
find  from  the  evidence  that  the  prisoner,  Sawyer,  did  the  killing  as 
charged  in  tiie  indictment,  then  the  next  question  for  you  to  determine 
is,  was  the  prisoner  justifiable  or  excusable  to  any  extent  upon  any  of 
the  grounds  mentioned?  The  ground  relied  upon  by  the  defence  in  this 
case  to  overcome  this  presumption  of  malice  (the  presumjjtion  arising 
from  the  use  of  a  deadly  weapon,  as  explained  in  a  previous  charge),  is 
that  of  insanity.  In  other  words,  it  is  argued  in  behalf  of  the  prisoner 
that  at  the  time  of  the  commission  of  the  act  alleged  in  the  indictment, 
he  was  not  of  sound  mind,  and,  therefore,  uoi  resi)onsible  for  the  acts 
committed  by  him.  This  defence  is  one  very  frequently'  made  in  cases 
of  this  kind,  and  it  is  one  which,  I  may  say  to  you,  should  be  very  care- 
fully scrutinized  by  the  jury.  The  evidence  to  this  point  should  l)e 
carefully  considered  and  weighed  by  the  jury,  for  the  reason  that  if  the 
accused  were  in  truth  insane  at  the  time  of  the  commission  of  the 
alleged  acts,  then  he  ought  not  to  be  punished  for  such  acts.  The  evi- 
dence on  this  question  of  insanity  ought  to  be  carefully  considered  by 
the  jury  for  another  reason,  and  that  is,  because  a  due  regard  for  the 
ends  of  justice  and  the  peace  and  welfare  of  society  demands  it,  to  the 
end  that  parties  charged  with  crime  may  not  make  use  of  the  plea  of 
insanity  as  a  means  to  defeat  the  ends  of  justice,  and  a  shield  to  pro- 
tect them  from  criminal  responsibility  in  case  of  violation  of  law.  It 
is  not  every  slight  aberration  of  the  mind,  not  every  case  of  slight  men- 
tal derangement  that  will  excuse  a  person  for  the  commission  of  an  act 
in  violation  of  law.  The  great  difficulty  is  to  determine,  in  cases  where 
insanity  is  urged  as  a  defence,  the  degree  of  insanity  that  will  excuse  a 
person  for  an  act,  which,  if  committed  by  a  sane  person,  would  be  crim- 
inal, and  would  subject  the  offender  to  punishment.  If  you  believe 
from  the  evidence  that  at  the  time  of  the  alleged  killing  (if  you  shall 
find  from  the  evidence  that  there  was  a  killing  as  alleged  in  the  indict- 
ment), the  prisoner.  Sawyer,  was  so  far  insane  as  not  to  he  able  to  dis- 
tinguish between  right  and  wrong  with  respect  to  the  act  in  question  ; 
or  if  you  shall  find  from  the  evidence  that  he  was  urf'  '  to  the  commis- 
sion of  the  act  by  an  insane  impulse  so  powerful  as  to  oi'coine  his  will 
and  judgment,  so  powerful  that  he  was  unable  to  resist  it,  even  though 
he  might  know  and  feci  that  the  act  he  was  committincj  was  wronir  and 
A  violation  of  law,  no  matter  whether  such  insane  impulse  arose  from 


% 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


k 


// 


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796 


EVIDENCE   AND    PRACTICE. 


Siiwvcr  V.  Stato. 


mental  or  physical  causes,  or  both,  provided  they  were  not  voluntarily 
induced  by  himself;  or,  if  you  should  find  from  the  evidence,  that  the 
prisoner  was  insane  on  any  subject,  no  matter  upon  what,  provided  you 
find  the  insane  impulse  to  do  the  act  charged  in  the  indictment  arose 
from  such  insanity,  then,  in  contemplation  of  law,  he  would  be  insane, 
and  you  should  acquit  him." 

It  is  objected  to  that  portion  of  the  charge  which  informs  the  jury 
that  "  the  ground  relied  upon  b}'  the  defence  in  this  case  to  overcome 
the  presumption  of  malice  is  that  of  insanity,"  that  it  diverted  the 
minds  of  tlio  jurors  from  the  other  grounds  relied  upon  to  overcome 
the  presumption  of  malice,  and  was  calculated  to  confuse  and  mislead 
them.  Lor'n"<»  at  the  case  as  it  appears  to  us  from  the  evidence,  and 
considering  .Iio  .'fcumstances  and  character  of  the  homicide,  and  the 
instrument  wiUj  ■^'tiich,  and  the  manner  in  which,  it  was  perpetrated,  it 
is  difl^cult  to  •..'■;)i.ceive  of  anything  that  would  overcome  the  presumption 
of  maMoe,  unl\  ■»  it  iic  a  disordered  and  shattered  intellect.  But  we  do 
not  think  the  court  erred  to  the  injury  of  the  accused  in  giving  undue 
prominence  to  the  defence  of  insanity.  In  the  series  of  charges,  'n- 
cluding  that  above  set  out,  the  whole  case  was  fully  and  very  fairly 
placed  before  the  jury,  and  the  prisoner  had  the  full  benefit  of  the  law 
as  applicable  to  his  case.  It  may  be  further  observed  that  in  that  por- 
tion of  the  charge  above  objected  to,  the  court  was  but  stating  the  case 
as  it  was  argued  to  the  jury  by  the  counsel  for  the  defendant,  for  the 
charge  immediately  proceeds  as  follows :  "In  other  words,  it  is  argued 
on  behalf  of  the  prisoner  that  at  the  time  of  the  commissi^jn  of  the  act 
alleged  in  the  indictment,  he  was  not  of  sound  mind,"  etc.  We  can- 
not say  that  the  court  misstated  the  positions  of  counsel  or  gave  more 
prominence  in  the  charge  to  the  question  of  insanitj'  than  the  counsel 
did  in  the  argument. 

It  is  also  objected  to  the  charge  that  it  was  calculated  to  pre- 
judice  the  jury  against  the  defence  of  insanity;  that  the  jury  were 
unduly  cautioned  to  carefully  scrutinize  the  evidence  on  that 
subject. 

The  observations  of  the  court  in  that  respect  meet  our  unqualified  ap- 
proval. As  stated  by  the  court,  where  the  defence  of  insanity  is  inter- 
posed to  a  criminal  prosecution,  the  evidence  relating  to  it  should  be 
carefully  and  intelligently  scrutinized  and  considered,  for  the  double 
reason  that  a  really  insane  person  should  not  be  convicted,  and  a  really 
sane  one  should  not  be  acquitted  and  suffered  to  go  unpunished  for  his 
crimes,  on  the  false  theory  of  insanity. 


ACTS    AND   DECLARATIONS   ol'    PKISOXKK. 


7!»; 


Previous  and  Si'h.;«'f|iitiif  Insanity. 


We  find  no  error  in  the  case,  either  in  relation  to  the  evidence  or  the 
charge  of  the  court,  and  are  satisfied  from  tlie  evidence  that  the  verdict 
and  judgment  are  in  all  respects  right. 

The  judgment  below  is  affirmed,  with  costs. 


EVIDENCE  —  ACTS    AND    DECLARATIONS    OF    PRISONER  —  INSANITY 

must  exist  at  time  ov  act. 
State  v.  Hays. 

[22  La.  Ann.  3l>.] 

In  the  Supreme  Court  of  Louisiana,  January,  1870. 

Hon.  Jonx  T.  LrnEi.iNc,  Chief  Justice, 
"     J.  G.  Tau.vkkrko  ' 

'<        R.   K.  IIOWKM., 
'<      W.  G.  WVLY, 

"     W.  W.  Howe, 


Associate  Justice*. 


I.  Evidence  — Acta  and  Declarations  of  Prisoner. —  In  a  criminal  prosecution  for 
the  crime  of  murder,  llie  witnesses  for  tliu  .■iccuseil  may,  under  tlie  pleaof  insanity,  be 
permitted  to  give  to  tlie  jury  the  acts,  declarations,  conversations  and  exclamationg, 
they  saw,  had  with,  and  heard  the  accused  make  at  any  time  shortly  before,  at  the  time 
of,  or  after  the  killing.    The  objections  to  such  testimony  go  to  its  effect. 

S.  Previous  or  Subsequent  Insanity  will  uot  discharge  the  accused.  It  must  bo  shown 
to  exist  at  the  time  the  deed  was  dune. 

Appe.\l  from  the  First  District  Court  of  New  Orleans,  before 
Abell,  J. 

L.  Belden,  Attorney-General,  for  the  State. 

McCay,  Levy  and  J.  B.  Colton,  for  defendant  and  appellant. 

Howe,  J.  — The  defendant  was  tried  for  murder,  found  guilty  with- 
out capital  punishment,  and  sentenced  to  imiirisonment  in  the  State 
penitentiary  for  life.     From  this  judgment  he  has  appealed. 

It  appears  by  a  bill  of  exceptions  that  the  defendant  placed  on  the 
stand  certain  witnesses,  and  asked  each  of  thera  seriatim,  "to  state  the 
acts,  declarations  and  conversations  and  exclar'ations,  they  saw,  had 
with  and  heard  the  prisoner  mtike,  at  any  tine  shortly  before,  at  the 
time  of,  or  after  the  killing  of  Sinnutt  tending  to  show  the  condition  of 
bis  mind  ;  wliich  question  and  answer  was  objected  to  by  the  Attorney- 


798 


EVIDKNTE   AND    PRAf'TICE. 


Htute  V.  Havs. 


General  of  the  State,  on  the  ground  that  his  (the  prisoner's)  statements, 
declarations  and  conversations  were  inadmissible,  and  were  illegal.  The 
court  sustained  the  objection  to  the  question  and  answer,  in  so  far  as  to 
limit  the  same  to  the  acts  and  the  exclamations  of  the  prisoner  a  short 
time  previous  to  and  at  the  time  of  the  killing,  and  to  tlic  acts  after  the 
occurrence." 

In  signing  the  bill  the  judge  adds:  "  Every  conversation  for  two  or 
three  months  previous  to  the  homicide,  accompanying  any  act  indicat- 
ing unusual  excitement  was  admitted ;  other  conversations  were  ex- 
cluded." 

The  defence  in  this  case  was  insanity.  In  the  solution  of  the  ques- 
tion presented  by  this  bill  of  exceptions,  it  becomes  necessary,  therefore, 
to  in(iuire  what  scope  is  allowed  tlie  prisoner  in  establishing  such  a  de- 
fence Ijy  the  enlightened  spirit  of  modern  jurisprudence. 

Insanity  is  a  disease.  It  has  its  pathology  and  its  sj'raptoms,  and  it 
would  seem  tliat  its  existence  can  be  determined  onl}'  by  a  careful  scru- 
tiny of  those  symptoms.  The  tree  is  to  be  known  by  its  fruits ;  the 
condition  of  the  hidden  mechanism  is  to  be  ascertained  by  those  com- 
municated movements  which  are  external  and  apparent.  To  this  end 
the  usual  expressions  of  a  mental  state  are  original  and  competent  evi- 
dence. If  they  are  the  natural  language  of  mental  alienation,  they  fur- 
nish satisfactory  and  sometimes  the  only  proof  of  its  existence.  It  is 
true,  that  such  expressions  may  be  feigned,  and  often  are ;  but  whether 
they  were  real  or  feigned  is  for  the  jury  to  determine.  Hence  the  rule 
prevails  that  as  indicia  of  the  mental  condition,  not  only  the  acts,  but 
the  conversations,  exclamations  and  declarations  of  the  person  may  be 
shown.  Of  course  this  rule  should  not  be  extended  beyond  the  neces- 
sity on  which  it  is  founded  —  mere  narration  or  statement  by  the  ac- 
cused, as  that  at  a  certain  time  he  said  or  did  something,  or  that  at  a 
certain  time  he  was  insane,  must  be  excluded ;  but  testimony  of  such 
deportment,  action,  complaints,  exclamations,  declarations,  andexpren- 
sions,  as  usually  and  naturally  accompany  and  furnish  proof  of  an  ex- 
isting malady,  ouglit  to  be  freely  admitted. 

We  think  it  equally  well  settled  that  all  such  indicia  occurring  after 
the  commission  of  the  offence,  may  be  shown,  and  that  the  judge  there- 
fore erred  in  confining  the  testimony  to  acts  done  after  the  homi- 
cide. It  is  true  tliat  mania  is  often  simulated,  and  it  is  quite  likely, 
that  the  danger  of  simulation  may  increase  after  the  commis- 
sion of  a  homicide ;  but  tliis  consideration  relates  rather  to  the  effect 
of  the  testimony  than  to  its  admissibility.  It  may  have  little  weight ; 
but  such  as  it  has  the  jury  must  estimate.     Previous  or  subsequent  in- 


SUnSEQUKNT    ACTS    AXD    CONDUCT. 


799 


Wluti  K.lfvaiit  and  Wlu'ii  Not. 


sanity  in  itself  is  no  matter  of  excuse  ;  the  mania  must  have  existed  at 
tho  time  the  act  was  done  ;  yet,  evidence  of  tiic  presence  of  the  malady 
either  before  or  after  tho  act,  is  proper  to  be  wcii^hed  by  the  jury,  for 
the  purpose  of  forming  a  conclusion  whether  insanity  existed  at  tiic 
time  the  alleged  crime  was  committed.  And  this  evidence,  we  appre- 
hend, may  l)e  identical  in  character  with  that  whicii  is  admitted  to  es- 
tablish mental  imsoundness  prior  to  tlic  act. ' 

For  the  reasons  given,  it  is  ordered  that  the  judgment  appealed  from 
be  avoided,  and  the  verdict  of  the  jury  set  aside,  and  that  the  cause  be 
remanded  for  a  now  trial,  according  to  law. 

Ciiief  Justice  Ludemng  ami  Justice  Howell  absent. 


EVIDENCE  OF  SUBSEQUENT  ACTS  AND  CONDUCT. 

Commonwealth  v.  Pomeroy. 

[117  Mass.  143.] 

In  the  Supre  le  Judicial  Court  of  Massachusetts,  February,  1875, 

lion.  Horace  Ghay,  Chief  Justice. 
"    JoH.N  Wells, 
"    .Iames  D.  Colt, 
"     Seth  Ames, 
"    MAKcirs  Morton, 

"       WiLLLVM  C.    ENDICOTT, 

"    Charles  Ueve-ns,  Jr., 


.  Judges. 


Evidence  of  Subsequent  Acts  and  Conduct.  —  Where  insanity  is  relied  on  as  a  defence 

to  crime,  evidence  of  acts  ami  conduct  of  tiie  prisoner  subseciuent  to  its  commisiion  io 
not  admissible  to  prove  liia  condition  at  tlie  time  of  the  offence,  unless  they  are  so  con- 
nected with  evidence  of  a  previous  state  of  mental  disorder  as  to  strengthen  tho  pre- 
sumption of  its  continuance  at  the  time  of  the  crime,  or  when  they  indicate  permanent 
unsuuudness,  which  must  ueccssarily  relate  back. 

Indictment  for  murder.  Tried  before  Gray,  C.  J.,  and  3Iorton,  J., 
who  allowed  a  bill  of  exceptions,  in  substance  as  follows :  — 

The  defendant,  a  boy  of  the  age  of  fourteen  years  and  five  months  at 
the  time  of  the  offence,  was  tried  on  an  indictment  for  the  murder  of 


1  Grant  v.  Thompson,  i  Conn.  203;  Kinne 
r.  Kinne,  9  Conn.  102;  Dickinson  v.  Barber. 
9  MasB.  225;  Norwood  v.  Marrow,  4  Dc?.  A  B. 


442;  McLean  t'.  State,  16  Ala.  672;  McAllister 
r.  State,  17  Ala.  434;  Bacon  r.  Charleton,  7 
Cush.  581. 


800 


EVIDENCE    AND    IMlACTKE. 


('oiumoiiwoalth  r,  ronurov 


Horace  R.  Milieu,  a  child  four  years  old,  committotl  at  Boston  on  April 
22,  1871.  Tlie  prisoner  was  arrested  on  tiic  evening  of  the  same  day. 
On  the  next  dxiy  he  was  taken  by  the  otlicer  to  view  the  body  of  bis  vic- 
tim and  admitted  having  killed  the  deceased  ;  and  on  the  afternoon  of 
that  day  one  of  the  trustees  of  the  .State  Keforui  Scliool  talked  with 
him  privately  at  the  station-bouse.  On  April  21,  he  was  taken  before 
the  coroner's  jury,  where  be  testilied,  and  denied  that  he  killed  the  child  ; 
and  afterwards,  on  the  same  day,  be  bad  an  interview  with  two  lawyers, 
one  of  whom  was  counsel  for  him  at  bis  trial.  lie  was  committed  to 
the  jail  on  May  1,  where  be  remained  until  the  time  of  his  trial.  The  de- 
fence set  up  was  the  insanity  of  the  i)risoner. 

The  defendant  called  George  B.  INIunroe,  an  ofHcer  of  the  jail,  and 
piso  offered  to  call  other  oflicers  at  tiie  jail  for  the  purpose  of  showing 
the  acts,  conduct,  and  habits  of  the  prisoner  on  and  after  May  1 ,  as  bear- 
ing upon  the  question  of  bis  sanity  at  the  time  of  the  homicide.  The 
court,  in  its  discretion,  excluded  the  testimo  ,-,  as  relating  to  a  time  too 
long  after  the  bomicide  and  arrest  to  be  material.  Thf  defendant  sea- 
sonabiy  objected  to  this  ruling. 

Wells,  J.,  delivered  the  opinion  of  the  court. 

Upon  the  question  of  sanity  at  the  time  of  committing  an  offence, 
the  acts,  conduct,  and  habits  of  the  prisoner  at  a  subseiiuent  time  may 
be  competent  as  evidence  in  bis  favor.  But  they  are  not  admissible  as 
of  course.  "When  admissible  at  all,  it  is  upon  the  ground  either  that  they 
are  so  connected  with  or  correspond  to  evidence  of  disordered  or  weak- 
ened mental  condition,  preceding  the  time  of  the  offence,  as  to  strengthen 
the  inference  of  continuance,  and  carry  it  by  the  time  to  which  the  in- 
quiry relates,  and  thus  establish  its  existence  at  that  time  ;  or  else  that 
they  are  of  such  a  character  as  of  .themselves  to  indicate  unsoundness 
to  such  a  degree  or  of  so  permanent  a  nature  as  to  have  required  a 
longer  period  then  the  interval  for  its  production  or  development. 

The  interval  is  to  be  measured,  not  merely  by  length  of  time,  but  also 
with  reference  to  intervening  events.  These  may  be  such  as  to  account 
for  the  peculiarities  manifested  either  by  showing  a  sufficient  originating 
cause,  or  by  furnishing  other  explanations. 

It  is  for  the  court  or  judge  presiding  at  the  trial  to  determine,  in  the 
first  instance,  whether  the  facts  offered  to  be  proved  would,  if  estab- 
lished, fairl}'  justify  any  inference  relating  back  to  the  time  of  the  al- 
leged offence.  This  inquiry  always  and  necessarily  involves  not  only 
the  question  of  intervening  time  and  occurrences,  but  also  the  character 
of  the  manifestations  and  circumstances  under  which  they  were 
observed.    It    is,    in    a    measure,  a  matter    of    judicial    discretion ; 


1  on  April 
same  ihiy. 
)f  his  vic- 
cnioon  of 
liked  with 
tea  before 
tlie  child ; 
o  lawyers, 
iinitted  to 
,     The  de- 

e  jail,  and 
f  showing 
1 ,  as  bear- 
;ide.  The 
a  time  too 
idant  sea- 


n  offence, 

time  may 

iiissible  as 

that  they 

or  weak- 

itrengthen 

ch  the  in- 

elsc  that 

ouiidness 

eq aired  a 

lit. 

but  also 
0  account 
rigiuatiug 

le,  in  the 
if  estab- 
)f  the  al- 
not  only 
character 
ey  were 
scretion ; 


HUUSEyUKXT    ATTS    AND    COXDLCT. 


801 


Kvliloiuu-  of,  Wlu'ii  Iii!i(hnissil)lo, 


inasmuch,  at  least,  that  great  weight  and  consideration  will  l)e 
aceorilfd  to  the  judge  wlujsu  decision  is  l>rought  up  for  revision. i 
It  is  for  the  party  offering  such  evidi'iice  to  establish  its  competency 
against  tlie  double,  and,  in  tiiis  case,  triple  objection:  1st,  tiiat  it  is 
subsequent  in  point  of  time  ;  2d,  that  it  is  the  party's  own  conduct  of- 
fered in  his  favor ;  and,  3d,  that  it  is  his  conduct  while  under  arrest 
charged  with  the  offence.  The  defendant  fails  to  show,  upon  his  bill  of 
exceptions,  that  the  evidence  offered  and  rejected  was  Cdiupetent 
upon  either  of  the  two  grounds  defined  in  the  first  paragraph  of  this 
opinion. 

If  the  ruling  at  the  trial  had  been  based  solely  upon  the  length  of 
time  that  had  elapsed,  there  would  be  ground  for  an  argument,  assuming 
the  evidence  to  have  been  in  other  respects  competent,  that  the  period 
of  only  eight  or  ten  days  was  too  short  a  limitation  of  its  admission  to 
be  a  reasonable  exercise  of  the  discretion  which  rests  with  the  court. 
But  the  question  does  not  admit  of  separation  in  that  mode.  The  ruling 
as  to  the  time  necessarily  had  reference  also  to  the  other  considerations 
which  affected  tl  o  competency  and  materiality  of  the  evidence  as  a 
basis  from  which  to  infer  unsoundness  of  mind  at  the  time  of  the  hom- 
icide. That  the  prisoner  had  been  under  arrest  upon  the  charge  for 
more  than  a  week  and  had  had  interviews  witii  counsel  and  others,  ap- 
pears from  the  bill  of  exceptions.  That  the  acts,  conduct  and  habits  of 
which  proof  was  offered,  were  of  any  special  significance  as  indicating 
mental  disease,  does  not  appear,  and  is  not  to  be  assumed  against  the 
ruling. 

In  a  case  of  such  vital  consequence  to  the  party  excepting,  we  should 
be  unwilling  that  any  right  should  be  lost  to  him  by  reason  merely  of  an 
omission  to  state  in  detail  the  evidence  which  was  offered  ;  we  have  ac- 
cordingly permitted  the  prisoner's  counsel  at  the  argument  to  mnkc  such 
statement  of  the  evidence  as  he  deemed  necessary  in  order  to  present 
the  whole  question  before  us,  with  the  view  to  allow  an  application  to 
have  the  exceptions  amended  if  the  case  should  appear  to  require  it. 
But  we  are  satisfied  that  any  such  amendment  would  not  avail  him. 

The  evidence  offered  and  rejected  was,  in  substance,  that  the  pris- 
oner ate  with  a  hearty  appetite,  sleiit  soundly  and  quietly,  and  in  con- 
versation and  manner  evinced  no  remorse,  or  sense  of  guilt.  In  the 
evidence  relied  on  to  show  the  mental  condition  of  the  defendant  prior 
to  the  homicide,  it  is  not  contended  that  there  was  any  marked  indica- 
tions of  the  existence   of  actual  insanity,  nor  that,  with  the  exception 

Shaller  v.  BumBlcail,  00  Mass.  112, 1;!0 ;  Conimonweallh  r.  Coe.  115  Mass.  418,  505. 
61 


802 


KVIUKNCK   AND    PKACTICK. 


Siiidrani  i».  rcojilc. 


of  an  apparent  absence  of  moral  susceptibility,  or  want  of  moral  sense, 
there  was  any  relation  or  correspondence  bi-twoen  the  evidence  pre- 
ceding and  tliat  subsequent  to  the  homicide,  whicli  gave  to  the  latter 
any  especial  significance.  We  do  not  think,  therefore,  that  a  disclosure 
of  the  whole  evidence  would  show  that  there  Avas  error  of  law  or  of  judi- 
cial discretion,  in  limiting  the  evidence  of  subsequent  conduct  oa  the 
part  of  the  defendant,  offered  in  his  favor. 

Exceptions  overruled. 


EVIDENCE— TEMPER  OF   I'RISONER— FITS  OF   PASSION— ECCENTRIC- 
ITIES -  CONDUCT  UF  TRIAL  — REMARKS  OF  JUDGE. 

SixDKAM  V.  People. 


[88  N.  Y.  196.] 

Jnthe  Court  of  Appeals  of  Neio  York,  February,  1882. 

Hon.  Charles  Andrkws,  Chief  Judge. 
'•     Chaulks  A.  Rai'ai.i.o, 
Thkodokk  Millkk. 
Ronr.RT  Eakt, 
Gkokck  F.  Danforth, 
FiuNcis  M.  Finch, 
Benjamin  F.  Tracy. 


11 
II 
II 
<i 


>  Associate  Judges. 


) 

1.  Temper  of  Prisoner— Fits  of  Passion.— Where  a  homicide  is  done  with  premedita- 
tion and  deliberation,  uvi(ii;iice  that  thu  prisoner  had  an  irascible  temper  or  was  subject 
to  fits  of  pasuiou  for  slight  causes  in  incompetent. 

9.  Evidence  — Eccentricities  of  Prisoner  Inadmissible.  —  Evidence  not  offered  to 

prove  insanity,  but  soh'ly  as  bearing  on  tlic  iincstiou  of  intent,  deliberation,  and  pre- 
meditation, that  the  conduct  of  llie  prisoner  prior  to  the  homicide  was  characterized 
by  eccentricities  and  peculiarities  causing  criticism  with  reference  to  his  mental  cap- 
acity, ij  inadmissible. 

3.  Conduct  of  Trial— Remarks  of  Judge.  — On  atrial  for  murder,  certain  letters  written 
by  the  prisoner  after  the  homicide  were  introduced  in  evidence,  in  commenting  upon 
which  in  his  charge  tlio  court  said :  "  They  exhibit  a  reckless  depravity  of  nature,  desti- 
tute of  remorse  or  regret,  the  reckless  spirit  of  a  desperado."  Subsequently  the  court 
told  the  jury  to  disregard  what  had  been  said  about  the  letters  and  to  form  their  own 
conclusions.  Held,  no  error.  The  court  also  said  that  these  letters  exhibited  a  "  high 
order  of  intelligence,"  but  afterwards  withdrew  the  words  "high  order  of."  ffeld,  uo 
error. 

Eruou  to  the  general  term  of  the  Supreme  Court  in  the  First  Judicial 
Department  to  review  a  judgment  affirming  a  judgment  convicting  the 


EVIDENCE   OF    ECCENTRICITIKS. 


803 


limdiiiissihlo,  When. 


noral  sense, 
idence  pre- 
)  the  latter 
I  disclosure 
M»r  of  judi- 
luct  on  the 


verruled. 


CCENTRIC- 

E. 


^82. 


i. 


th  prcmedita- 
or  was  subject 

lot   offered  to 

ition,  and  pre- 

cliaracterizcd 

is  lueutal  cap- 

Icttcrs  written 
iinenting  upon 

nature,  desti- 
ntly  the  court 
orm  their  own 
ibited  a  "  liigh 

of."    ^eld,  uo 


I'st  Judicial 
victing  the 


plaintiff  in  error  of  the  crime  of  murder  in  the  first  (k'grce.     The  facts 
are  stated  in  the  opinion. 

James  IJ.  McClelland  and  William  F.  Kintzing  for  tho  plaintiff  in 
error. 

John  Vincent,  Assistant  District  Attorney,  for  tho  People. 

Rai'ai.lo,  J. —  Tho  exception  wiiich  tiie  counsel  for  the  plaintiff  in 
error  has  mainly  urged  upon  the  argument  of  this  cause  is  that  taken 
by  him  totlie  exclusion  of  tlie  evidence  of  David  Weil,  as  to  peculiari- 
ties and  eccentricities  in  the  conduct  of  the  prisoner.  This  evidence  was 
not  offered  with  the  view  of  proving  insanity  or  as  an  excuse  or  defence, 
but  solely  as  bearing  upon  the  question  of  intent,  and  deliberation  and  pre- 
meditation, and  thus  affecting  the  degree  of  the  crime.  The  counsel  for 
the  prisoner  offered  to  prove  that  for  a  numV)er  of  years  past  the  prisoner 
had  been  characterized  by  peculiarities  and  eccentricities  of  conduct  which 
had  caused  criticism  with  reference  to  his  mental  capacity.  Also  that  he 
was  a  person  who  had  been  known  to  be  the  victim  of  inordinate  passion, 
giving  expression  to  it  in  various  ways  and  at  various  times  ;  and  this 
offer  was  stated  to  have  been  made  for  the  purpose  of  enabling  the  jury 
to  consider  tlie  character,  the  mental  condition  of  the  prisoner,  prior  to 
and  in  view  of  the  circumstances  of  the  killing,  in  order  that  they  might 
be  enabled  to  pass  upon  the  grade  of  homicide,  whether  murder  in  the 
first  or  second  degree  or  manslaughter  in  the  third  degree. 

From  the  discussion  between  counsel  and  the  court  at  the  trial  it  ap- 
pears that  the  evidence  was  claimed  to  be  admissible,  upon  two  grounds : 
First,  as  bearing  upon  the  question  whether  the  prisoner's  act  was  the 
result  of  impulse  and  anger,  or  a  deliberate  and  premeditated  design  to 
effect  death  ;  and  secondly,  upon  the  question,  whetlier  the  prisoner  had 
a  mind  which,  under  the  circumstances  detailed  in  the  case,  could  have 
formed  a  deliberate  and  premeditated  design  to  inflict  death  ;  it  being  at 
the  same  time  avowed  that  the  evidence  offered  did  not  amount  to  proof 
of  insanity. 

In  considering  the  first  ground  upon  which  the  evidence  offered  was 
claimed  to  be  admissible,  it  is  necessary  to  look  at  the  circumstances  of 
the  homicide,  as  developed  by  the  evidence  which  was  before  the  court  at 
the  time  the  offer  was  made,  for  the  purpose  of  ascertaining  whether  there 
was  any  evidence  that  the  shooting  was  the  residt  of  sudden  anger  or  im- 
pulse existing  at  the  time,  and  whether  the  question  whether  the  homicide 
was  committed  in  the  heat  of  passion,  fairly  arose  in  the  case  upon  the 
evidence  already  in.  We  do  not  intend  now  to  decide  that  even  if  that 
(piostion  had  been  presented  by  the  evidence,  i)roof  of  the  description  of- 
ferred  would  have  been  admissible,  but  we  are  clearly  of  opinion  that  if 


S04 


Evn)i:x(i:  and  pkactick. 


Sludrtiiii  r.  Pooplf, 


the  evidi'iicc  discloNeil  no  circumstancos  indicntiiifj  that  tlic  homicide  was 
coiniiiitli'd  under  the  iiiUnoiicc  of  provofation  at  the  time,  or  sudden 
anger,  evidenoo  that  the  prisoner  had  an  irascible  temper  or  was  subject 
to  fits  of  passion  from  sliglit  causes  was  not  a(hnissible.  Such  proof 
•would  not  of  itself  have  authorized  an  inference  that  lie  committed  the 
actunder  a  sudilcn  impulse,  attributable  to  the  eccentricities  of  his  char- 
acter, in  the  absence  of  any  circumstance  occurring  at  the  time  which 
tended  to  excite  his  passion. 

At  the  time  the  evidence  was  offered  the  prosecution  had  just  closed 
its  testimony,  and  the  witness  Weil,  was  tiie  first  witness  called  for  the 
defence.  The  evidence  on  the  part  of  the  prosecution  was  to  the  effect 
that  on  the  da}'  preceding  the  killing,  the  prisoner  who  had  up  to  that 
time,  been  a  lodger  in  the  house  of  the  deceased  and  her  husband,  had  re- 
ceived notice  to  (piit,  and  had  left  in  the  evening,  using  angry  expressions 
concerning  the  deceased  and  threatening  to  return  the  next  day  and  make 
a  bloody  row.  At  about  ten  o'clock  the  following  morning  he  came  to 
the  house  and  entered  with  a  pass-key,  and  was  accosted  in  the  hall  by 
Henrietta  Crave,  a  step-daughter  of  the  deceased.  She  testified  that  he 
then  appeared  angry  and  excite<I.  He  said  to  her  tliat  he  wanted  to  see 
her  mother;  she  asked  "  What  for?  "  and  he  replied,  "Nevermind,  I 
want  to  see  your  mother."  Tlie  deceased,  wlio  was  upstairs,  heard  the 
sounds  und  hallooed  down,  '•  Henrietta,  who  is  that  down  there?  "  and 
witness  answered,  "  Mamma,  just  think  ;  it  is  that  Willie  Sindram."  De- 
ceased said,  "  What  does  he  want  in  the  house  now?  He  has  no  right 
in  the  house  now."  Tlie  i)risouer  tlien  said:  "  Come  down  here  and  I 
will  show  you  wiiat  I  wani,"  speaking  as  the  witness  expressed  herself 
very  saucy,  crossly,  angrily;  witness  then  went  part  of  the  way  upstairs 
and  looking  back,  saw  the  prisoner  pulling  out  a  pistol  from  his  pocket 
slowly,  witness  then  called  out,  "  Mamma,  run;  he  has  got  a  pistol ;  he  is 
going  to  kill  you."  Deceased  then  opened  a  window  which  was  in  a 
landing  at  the  head  of  the  first  fiight  of  stairs,  and  called  "  "Watch, 
police,"  out  of  the  wimlow;  the  witness  was  at  that  time  part  of  thewa}' 
up  the  stairs,  and  the  i)risoner  ran  up  the  stairs,  pushing  her  on  one  side 
and  fired  at  deceased  as  she  was  calling  out  of  tiie  window.  The  ball 
went  througlj  one  of  the  panes  of  tlio  window.  Deceased  then  crouched 
in  the  corner  and  the  prisoner  advanced  upon  her,  and  putting  the  muz- 
zle of  the  pistol  within  three  inches  of  her  head,  fired  the  second  shot, 
which  proved  fatal.  On  cross-examination  tlie  witness  testified  that  no 
words  passed  between  deceased  and  prisoner  except  as  before  stated,  and 
<'xcei)t  that  when  witness  hallooed  to  deceased  that  the  prisoner  had  a 
pistol  and  was  going  to  kill  her,  deceased  said  to  him,  "  What  do  you 


rn«  ►V»)(ATIO\  —  VIOLENT   Tinil'llU. 


805 


DclilKTiitioii  iiiiil  I'rciiKMlitatiiiii. 


)micitlc  was 
ur  siidckn 
ivas  subject 
Such  proof 
omitted  the 
of  his  char- 
time  which 

just  closed 
lied  for  the 
Lo  the  effect 
up  to  that 
aud,  had  re- 
expressions 
ly  aiul  make 
J  he  came  to 
I  the  hall  by 
:ified  that  he 
mtcd  to  see 
;ver  mind,  I 
s,  heard  the 
here?  "  and 
ram. ' '     De- 
lias no  right 
1  here  and  I 
scd  herself 
vay  upstairs 
n  his  pocket 
listol ;  he  is 
•h  was  in  a 
I  "Watch, 
t  of  the  way 
on  one  side 
The  ball 
}n  crouched 
ng  the  muz- 
econd  shot , 
fled  that  no 
stated,  and 
soner  had  a 
hat  do  you 


want  to  do  anythini^  t'»  me  fur,  I  never  di<l  anything  to  ymi."  Knieline 
Smith,  another  witness  on  tlie  i)arl  of  tiie  prosftMition  le.ililied  tluitshe 
was  upstairs  and  lieard  the  conversation  in  the  hall,  betwei-n  lleiu'ietta 
Crave  arid  tlie  prisoner,  on  the  morning  of  the  killin^f.  All  this  witness 
heard  deceased  say,  was,  "  AVIiat  do  you  want  with  me."  She  did  not 
iiearthc  prisoner  say  anytliini^  in  reply.  Slu>  saw  the  slio()tiiij^  and  con- 
firmed the  testimony  of  Henrietta  as  to  the  circumstances. 

This  was  all  the  testimony  in  tlic  case  ri-hiting  to  tlie  circumstances 
of  the  killing'',  at  the  time  the  prisoner's  counsel  offered  to  prove  his 
eccentricities,  and  his  jiassionate  cliaracler.  From  tiiesc  circumstances 
it  ajjpeared  thai  whatever  passion  the  prisoner  was  lalioriiijr  under  he 
broujrht  with  him  to  the  house  ;  and  that  it.  was  not  excited  by  anything 
that  occurred  tlierc.  His  violent  temper  could  not,  legitimatt'ly,  be 
taken  into  consideration  by  the  jury  for  the  purpose  of  reducing  the 
grade  of  his  offence,  when  the  i)rovocation,  if  any  there  was.  liad 
occurred  the  day  before  the  killing.  If  his  acts  were  such  as  to  satisfy 
tiie  jury  that  the  killing  was  with  premeditation  and  deliberation,  his 
bad  temper  or  eccentricities  of  character,  not  amounting  to  insanity, 
could  not  dctrac't  from  the  effect  of  his  acts,  or  shield  him  from  respon- 
sibility therefore;  and  w  ■  concur  with  the  learned  judge  who  delivered 
the  opinion  at  general  term,  that  there  was  no  legitimate  connection 
between  the  eccentricities  and  peculiarities  of  character  sought  to  ])c 
shown,  and  the  deed  of  the  prisoner,  as  the  evidence  stood  when  the 
offer  was  made.  The  declarations  of  the  prisoner  in  respect  lo  his 
provocation  came  in  at  a  later  stage  of  the  case. 

The  second  ground  upon  which  the  offer  is  attempted  to  be  sustained 
is  equally  untenable.  The  counsel  for  the  prisoner,  while  conceding 
that  his  offer  was  not  to  prove  insanity,  claimed  that  the  evidence  bore 
upon  the  question  whether  the  prisoner  had  a  mind  which,  under  the 
circumstances,  could  have  formed  a  deliberate  and  premeditated  design 
to  inflict  death.  That  is,  that  although  the  prisoner  was  a  sane  man, 
and  capable  of  committing  manslaughter,  or  murder  in  the  second 
(Icgi'cc,  he  was  under  the  circumstances  incapable  of  committing  mnr- 
der  in  the  first  degree.  The  novelty  of  the  proposition  is  admitted  by 
counsel,  but  the  argument  in  its  favor  is  based  upon  the  introduction 
into  the  statute  defining  the  offence  of  murder  in  the  first  degree,  of  a 
new  element,  viz. :  Deliberation,  in  addition  to  premeditation.  And  it 
is  contended  that  this  change  in  the  statute  opens  the  door  to  proof  of 
the  description  offered,  for  the  purpose  of  showing  that  the  accused  was 
so  far  the  victim  of  bad  temper  and  inordinate  passion,  that  when 
angered  he  was  incapable  of  deliberation.    "We  cannot  adopt  the  view  of 


H(M5 


KVIDKNCi:    AM)    l'i;\(THi;. 


Slmlraiii  i-.  lVt)|ik', 


the  learned  oouiisel.  To  do  so  would  l)i'  not  only  an  innovnHon  upon 
the  law,  i»ut  oiw  of  a  most  mischU'vous  •••ndtncy.  It  would  afford  a 
shield  to  the  most  dangerous  (tla.ssi-s  of  the  conununlty,  and  tlio»e  most 
prone  to  comniil  the  crinie  of  murder.  Tlio  violence  of  their  passions, 
and  their  wicked  impulses  which  it  is  the  object  of  the  law  and  its  pun- 
ishments to  restrain,  would  he  made  to  paliate  their  offences,  and  the 
more  violent  the  character  of  an  offiMider,  the  surer  v;ould  behisimmtm- 
ity  from  the  extreme  peiuilty.  The  facts  of  premeditation  and  deliber- 
ation in  a  case  of  murd<!r  must  be  found  by  the  jury,  fnmi  the  evidence 
of  the  acts  and  deliberations  of  the  criminal,  or  the  circumstances  of 
the  case,  and  the  theory  that  eccentricities  of  rh  iracter  and  inordinate 
passion  can  render  a  sane  man  incapal)le  of  committing  an  offence  which 
involves  deliberation  is  wholly  inadmissible. 

Some  exceptions  were  taken  t'>  the  charge  of  the  judge  to  the  jury. 
Counsel  excepted  to  the  expression  of  the  judge,  '' there  is  no  doubt 
about  the  assassination."  The  judge  explained  this  by  stating  that  he 
meant  there  was  no  doubt  about  the  killing,  and  on  referring  to  the 
portion  of  the  charge  where  the  expression  was  used,  it  appears  that  it 
was  so  explained  at  the  time  ;  what  the  judge  said  was,  "  there  is  no 
doubt  about  the  ass:i:sination,  that  the  deceased  person  was  killed  ;  there 
is  no  doubt  cither  that  she  was  killed  by  the  prisoner."  An  exception 
was  also  taken  to  a  statement  in  the  charge,  *'  the  testimony  seems  to 
be  overwhelming  in  favor  of  his  having  uttered  it  —  that  he  would 
return  on  Wednesday  and  make  a  bloody  row."  On  his  attention  being 
called  to  this  part  of  the  charge  the  learned  judge  stated  to  the  jury 
that  he  changed  that  phraseology,  and  said  that  he  thought  the  testi- 
mony was  preponderating  to  that  effect,  but  that  he  was  onl}' expressing 
an  opinion,  and  that  he  left  all  the  questions  of  fact  to  the  jury  ;  that 
there  was  to  be  no  thirteenth  juror  in  the  box.  Certain  letters  of  the 
prisoner,  written  after  the  shooting  had  been  put  in  evidence,  and  in 
commenting  on  these  the  judge  said  that  "  they  exhibited  a  reckless 
depravity  of  nature,  destitute  of  remorse  or  regret,  the  reckless  spirit 
of  a  desperado,  who,  looking  upon  his  life  with  indifference,  could  meet 
apparently  any  doom  for  the  gratification  of  a  malignant  passion." 
These  letters  were  before  the  jury,  and  they  could  put  their  own  con- 
struction upon  them.  No  one  can  read  them  without  feeling  that  they 
fully  warranted  the  comments  of  the  judge.  But  on  exception  being 
taken  to  his  remarks  he  instructed  the  jury  to  disregard  what  he  said 
about  the  letters,  and  form  their  own  judgment.  The  statement  in  the 
charge  that  these  letters  indicated  a  high  order  of  intelligence  was  also 


rnisoxKU  s  appkakanci;  at  thiai,. 


Ho; 


Jury  May  iiol  ('»)iiNl(U;r. 


iHon  upon 
il  afford  a 
llioHc  most 
I"  passions, 
h1  its  piin- 
■i,  and  tlio 
lisiuimun- 
id  doliber- 
c  evidence 
stances  of 
inordinate 
:nce  which 

the  jury. 

no  doubt 
ig  that  he 
ng  to  the 
irs  til  at  it 
icre  is  no 
led ;  tliere 
exception 

seems  to 
he  would 
tion  heinT 

the  jury 
the  test!- 
xpressing 
my;  that 
srs  of  the 
;e,  and  in 

reckless 
ess  spirit 
)uld  meet 
)assion." 
)wn  con- 
hat  they 
on  beinj; 
t  he  said 
fit  in  the 
was  also 


inodilied  by  tlie  judge,  by  withdrawing  the  words  "high  order  of,"  and 
saying  that  they  indicated  intelligence. 

We  nnd  no  legal  error  in  any  of  the  portions  of  the  charge  excepted 
to.  Conunents  upon  the  testimony,  so  long  as  the  judge  leaves  all  the 
questions  of  fact  to  the  jury  and  instructs  them  that  they  are  the  solo 
judges  of  mutters  of  fact,  are  not  the  sui)Ject  of  legal  exi-eption.  It  is 
desirable  that  the  court  should  refrain,  as  far  as  possii)li',  from  saying 
anything  to  the  jury  which  may  inlluence  them  either  way  in  passing 
upon  controverted  questions  of  fact,  and  perhaps  comments  on  the  evi*^ 
dence  might  be  carried  so  far  as  to  afford  ground  for  assigning  error. 
But  in  the  present  case,  whenever  its  atteiitiorj  was  called  by  the  pris- 
(oner's  counsel  to  any  part  of  tiie  charge  v  n  h  jic  considered  us  an 
mfringement  upon  the  province  of  the  jury,  the  court  promptly  and 
clearly  withdrew  the  remarks  objected  to  and  ompliaticnily  reminded 
the  jury  that  they  alone  had  the  right  to   Ictermine  the  lUcts. 

Th>  judgment  should  be  allirmed. 

All  concur. 

Judgment  affirmed. 


RIGHT  OF  JURY  TO   CONSIDKIl   PRISONER'S    AITEARAJN'CE   ON    THE 

TRIAL. 

BowDEX  V.  People. 

[12  IIiui,  85.] 

In  the  Supreme  Court  of  New  York  (First  Department),  October  Term, 

1877. 

Hou.  NoAii  Davis,  Presiding  Judge 
"     John  R.  Bkadv,       \   t  j 
"     CuAULJJs  Damkls.  I  '      ^"' 

Kightof  Jury  to  Consider  Prisoner's  Appearance  at  TriaL-Tlie  plaintiff  in  error 
was  tried  and  convicted  for  lal«ely.swt!iinii),'  to  his  qaalillcution  as  bail  in  i.  rriniinal 
rase.  Upon  tlie  trial  the  prisoner  clainu'd  tliat  he  was  at  tin-  time  of  the  commission  of 
the  offence,  some  six  months  previous  to  the  trial,  insane  from  delirium  tremens.  The 
Judge  charged  the  Jury  that,  in  deciding  u|>on  his  insanity,  they  mi^ht  take  into  account 
his  physique  and  apparent  age,  and  consider  his  conduct  upon  the  trial.  There  was  no 
evidence  tending  to  show  that  his  physical  appearance,  .six  months  after  the  dic^uase, 
would  be  affected  thereby.    Held,  that  the  charge  was  erroneous. 

Writ  op  Ekuou  to  the  Court  of  General  Sessions  of  the  City  and 
County  of  New  York  to  review  the  conviction  and  sentence  of  the  plain- 
tiff in  error  of  the  crime  of  perjury. 


808 


EVIDENCE   AND   PRACTICE. 


JJowdfii  V.  rcoplo. 


Charles  W.  Brooke,  for  the  plaintiff  in  error. 

B.  K.  Phelfis,  for  tlie  defendant  in  error. 

Davis,  P.  J. — The  plaintiff  was  inuicted  ana  tried  for  perjnry  in 
swearing  to  his  qualifications  as  bail  in  a  criminal  case.  Abundant  evi- 
dence was  given  to  justify  his  conviction.  lie  alleged,  as  part  of  his 
defence,  that  at  the  time  of  swearing  to  his  qualifications  he  was  so  in- 
sane from  delirium  tremens  as  not  to  be  responsible  for  his  acts.  Upon 
this  alleged  defence,  some  evidence  was  given,  and  so  much  that  the 
court  submitted  tlie  question,  as  was  its  duty,  to  the  jury. 

In  charging  upon  that  branch  of  t'ne  case  the  learned  Recorder, 
amongst  other  things,  said:  "I  ask  you,  gentlemen,  to  look  at  the 
physique  of  that  prisoner  and  his  apparent  age,  and  consider  his  con- 
duct, if  you  please,  during  this  trial,  and  tell  me  whether  you  believe 
such  a  man  was  suffering,  or  is  suffering  from  delirium  tremens,  or  any 
attack  of  it.  You  have  to  judge  from  all  the  evidence  and  from  the  ap- 
pearance of  this  prisoner." 

After  the  charge  was  concluded,  the  counsel  for  the  prisoner,  amongst 
other  things,  excepted  as  follows :  "  I  also  except  to  that  portion  of  your 
honor's  charge  in  which  you  said  to  the  jury  to  regard  the  prisoner,  his 
apparent  age,  and  his  demeanor  during  the  trial,  and  his  appearance, 
and  say  wlicther  he  had  delirium  tremens,  or  not,  upon  the  occasion 
when  he  signed  this  bond  and  did  know  what  he  was  doing."  To  this 
exception  the  Recorder  said :  "I  did  not  say  so;  I  said  let  that  enter 
into  your  examination  whether  you  think  a  man  of  his  physical  appear- 
ance, and  his  manner  here  was,  at  the  time,  a  man  so  deprived  of  reason 
that  he  was  unable  to  know  what  he  was  doing. ' ' 

To  the  charge,  as  thus  explained,  the  counsel  for  the  prisoner  also 
excepted. 

It  appears  that  the  offence  was  committed  some  six  months  before  the 
trial.  The  effect  of  the  charge,  was,  therefore,  that  the  jury  might 
judge  from  his  physical  appearance  and  manner  on  the  trial,  whether 
the  prisoner  could  have  been  at  the  time  of  becommg  bail  and  taking 
the  oath,  six  months  previous  to  the  trial,  so  far  affected  by  delirium 
tremens,  as  to  be  so  far  deprived  of  reason  that  he  was  unable  to  know 
what  he  was  doing. 

This  was  submitting  to  the  jury  an  inquiry  altogether  beyond  their 
province.  It  carried  them  into  a  region  of  the  merest  speculation.  It 
would,  probably,  have  been  impossible  for  the  ablest  expert  to  have  said 
from  the  prisoner's  physical  appearance  and  manner  a*  the  trial  whether 
or  not,  he  had  had  delirium  tremens  six  months  previously.  There  was 
no  proof  that  that  disorder  leaves  any  infallible  mark  of  its  existence, 


URLXKENXiiSS. 


809 


Declarations  of  Docfascd. 


perjury  in 
uiulant  evi- 
part  of  his 

was  so  in- 
cts.  Upon 
ill  that  the 

Recorder, 
3ok  at  the 
r  his  con- 
ou  believe 
ns,  or  any 
)ra  the  ap- 

',  amongst 
311  of  your 
soner,  his 
•pearanee, 
occasion 
To  this 
that  enter 
il  appear- 
of  reason 

oner  also 

ef  ore  the 
ry  might 
whether 
3  taking 
delirium 
to  know 

•nd  their 
ion.  It 
ave  said 
whether 
lere  was 
istence, 


from  which  jurors  or  any  otl.or  person  can  say  six  months,  or  any 
other  period  aftern-ards,  that  a  person  liad  been  its  victim,  ncr  was  there 
any  proof  of  the  absence  or  presence  of  any  indications  in  the  "  pliysi- 
cal  appearance  "  of  the  prisoner  that  would  show  that  lie  had  had,  or 
had  not  had,  the  delirium  tremens  at  any  time.  The  charge  was,  there- 
fore, open  to  the  criticism  and  objection  that  it  loft  to  the  jury  to  infer 
from  the  present  physical  ai)i)earance  of  the  prisoner  whothcr'he  could 
have  been  non  compos  mentis  from  a  disease  whicli  he  was  allco-ed  to 
have  had  six  months  before,  without  the  sliohtest  proof  tliat  his  pM-sical 
appearance  would  have  been  so  affected  l)y  the  disease,  as  to  <lisclose  or 
disprove  the  fact  of  its  having  existed  at  any  time  after  the  disease 
Itself  had  passed  away.  We  venture  to  say  tiiat  no  precedent  can  be 
found  for  such  a  charge,  and  none  ouglit  to  be  established. 

It  is  quite  impossible  for  us  to  say  that  no  harm  was  done  to  the 
prisoner  by  this  charge.  It  may  have  controlled  the  jury  (as  it  seems 
to  have  impressed  the  court),  in  disposing  of  the  prisoner's  only  possi- 
ble defence  against  an  otherwise  clearly  establislied  offence.  We  are 
compelled,  therefore,  to  reverse  the  judgment  and  order  a  new  trial, 
under  the  well  established  rules  governing  the  review  of  .criminal  trials. 

Daniels,  J.,  concurred 

Conviction  reversed  and  7iew  trial  ordered. 


EVIDENCE -IRRELEVANT  ON  QUESTION  OF  RESPONSIBILITY-DEC- 
LARATIONS  OF  DECEASED- DRUNKENNESS -DELIBEPATION. 

Warren  v.  Commonwealth. 

[37  Pa.  St.  45.] 

In  the  Sicpreme  Court  of  Pennsylvania,  1860. 

Hon.  Walter  II.  Lowrie,  Chief  Justice. 
"     George  W.  Woodward,  ') 
"    James  Thompson, 
"     William  Strong, 
"     John  M.  Read, 

whether  he  did  not  move  Ire  cr«cury\v  .rd^Sr  '  '*'•""'' ^^;hcn  out  of  work. 

therois„oprooforact«an„toxLcio„^.:;r;rr:;t:;r^r^^^^^ 

~i?c^evT,wr  f  .°'  ^r^^,^^  - '""'  f'"^""'^'-  '"'•"'^  ""li<='<^d  f-^r  the  murder  of  hit 
^^.fc.  ev.dcn.-c  ,.f  her  ac'.  and  declarations  on  the  .san.e  day  are  irrelevant. 

3.  Deliberation  as  affected  by  drunkenness. 


>  Justices. 


810 


EVIDENCE    AND    PRACTICE. 


Warren  v.  CoMunonwi'altli. 


John  Warren  at  the  August,  1860,  term  of  the  Court  of  Oyer  and 
Terminer  for  the  county  of  Berks,  was  charged  with  the  murder  of  a 
woman  who  was  unknown  to  the  jury.  He  was  convicted  of  murder  in 
the  first  degree,  and  appealed. 

John  S.  liichards,  A.  L.  Ilennershortz  and  C.  P.  3fu}ilenburg ,  for  the 
prisoner. 

James  B.  Bechtel  and  Samuel  L.  Young,  for  tlie  Commonwealth. 

Thompson,  J.  — 

[After  passing  on  question  as  to  challenge.] 

The  third,  fourth,  fifth,  sixth,  and  seventh  errors  may  be  considered 
together.  They  all  relate  to  offers  of  evidence  of  the  same  general 
character,  overruled  by  the  court  and  excepted  to  on  the  part  of  the 
prisoner.  They  may  be  stated,  in  short,  to  be  the  rejection  of  the  fol- 
lowing questions:  First — "Whether  the  prisoner  was  not  generally 
drunk  when  out  of  work?"  Secondly  —  "Did  he  not  move  quicker 
when  drunk  than  sober?  "  with  a  view  to  follow  it  with  proof  that  he  did 
move  quickly  on  the  occasion  of  the  killing.  Thirdly  —  "To  prove  that 
his  wife  went  to  Kalbach's  on  the  morning  of  the  day  on  which  the  kill- 
ing took  place  and  forbade  him  from  selling  Warren  liquor,  saying  '  that 
he  was  drunk  and  abused  her.'  "  Fourthly — "That  Mrs.  Warren  had 
pledged  a  watch  some  time  before  for  liquor ;  that  Warren  got  more  on 
account  of  it  —  took  it  out  in  liquor?"  And,  fifthly,  "To  show  the 
effect  liquor  had  on  Warren,  beginning  several  years  back,  in  making 
him  wicked  and  crazy,  and  that  it  had  a  peculiar  effect  on  his  constitu- 
tion and  brain." 

The  object  of  all  this  testimony  was,  of  course,  to  raise  an  inference 
that  the  crime  was  committed  under  the  influence  of  intoxication,  and 
to  such  an  extent  as  to  deprive  the  prisoner  of  the  capacity  to  deliber- 
ate, which  the  court  throughout  properly  conceded  was  an  essential  in- 
gredient in  the  crime  of  murder  in  the  first  degree.  To  reduce  the 
grade  of  the  crime,  therefore,  when  the  evidence  on  the  part  of  the 
Commonwealth  was  such  as  to  make  out  a  prima  facie  case  of  murder 
in  the  first  degree,  evidence  showing  want  of  deliberation,  or,  which  is 
the  same  thing,  an  incapacity  to  deliberate,  is  of  coui'se  proper  to  be  re- 
ceived. But  it  behooves  the  prisoner,  in  a  case  where  death  is  pro- 
duced by  repeated  brutal  assaults  on  a  helpless  person,  at  considerable 
intervals  of  time,  resulting  at  last  in  death,  to  meet  the  question  of  pre- 
meditation by  competent  evidence,  and  which  would  serve  to  show  a 
condition  and  state  of  mind  in  which  it  was  at  least  improbable  that  de- 
liberation could  have  directed  his  acts.  Unexplained,  the  case  here  was 
such  that  a  jury  could  scarcely  have  failed,  if  they  regarded  their  oaths, 


DRUMvEWKSS. 


811 


IiTolt'vaiit  Kvidi'iicf 


Oyer  and 
rdcr  of  a 
murder  in 

g,  for  the 

jalth. 


Dnsidered 
e  general 
irt  of  the 
f  the  lol- 
generally 
?  quicker 
at  he  did 
rove  that 
I  the  kill- 
ing  « that 
irren  had 
more  on 
show  the 
1  making 


constitu- 

nference 
ion,  and 

deliber- 
ntial  in- 
duce the 
t  of  the 

murder 
fvhich  is 
;o  be  re- 
!i  is  pro- 
iderable 
I  of  pre- 
•  show  a 
that  de- 
le re  was 
r  oaths, 


to  find  it  a  case  of  wilful  and  premeditated  killing.  There  was  no  at- 
tempt to  prove  actual  intoxication  at  the  time.  Could  it  have  been  in- 
ferred from  the  testimony  offered  ? 

That  he  generally  got  drunk  when  out  of  work  was  a  matter  of  habit, 
not  of  fact.  It  did  not  prove  either  the  fact  of  being  drunk  at  the  time, 
or  that  he  had  no  work.  It  was  the  fact  that  was  wanted  —  from  that 
the  inference  of  want  of  deliberation  might  have  been  'rawn.  But  it 
was  asked  here  to  infer  that  he  was  out  of  work,  and,  therefore,  drunk, 
because  he  was  generally  so  when  out  of  work,  and  hence  to  infer  from 
the  inferred  drunkenness  that  he  could  not  act  deliberately.  This  mode 
of  proof  the  law  will  not  sanction,  and  we  need  only  state  the  proposi- 
tion to  demonstrate  the  fallacy  of  the  attempt. 

Again,  that  his  habits  of  motion  were  quicker  when  drunk  than  when 
sober.  This  is  of  the  same  character  as  the  last,  and  subject  to  the 
same  objection.  What  his  wife  said  or  did  was  not  evidence  in  favor  of 
the  prisoner.  It  was  hearsay  ;  and  her  acts  were  irrelevant.  This  is 
sufficient  answer  to  the  offer  in  evidence  in  regard  to  what  she  said  at 
Kalbach's  and  as  to  her  acts  in  pledging  the  watch. 

The  last  of  these  offers  was  to  prove  the  effect  liquor  had  on  the  pris- 
oner, beginning  several  years  back  ;  that  it  made  him  violent  and  crazy 
and  quarrelsome  with  his  friends.     Had  this  ])een  preceded  or  followed 
by  proof  of  intoxication  at  the  moment  of  the  commission  of  the  crime, 
it  might  have  been  proper.     But  it  seems  to  us  not  to  be  distinguisucu 
in  principle  from  the  questions  already  disposed  of.     It  was  an  effort  to 
raise  an  inference  of  intoxication  from  the  violent  acts  of  the  prisoner 
in  consummating  his  crime,  unaided  by  proof  that  it  was  the  impelling 
cause  to  its  commission.     Of  what  avail  would  it  be  to  show  the  effect 
of  intoxicating  liquors  on  the  prisoner,  and  that,  when  taken  to  excess, 
it  rendered  him  crazy,  violent  an<l   unmanageable,  unless  it  had  been 
shown  that  he  had  partaken  of  it  in  sufficient  quantities  to  produce  the 
effect?    The  consequences  fiowing  from  tlie  ordinary  uso  of  intoxicat- 
ing liquors  amounted  to  nothing  utiless  it  was  snown  that  they  were  the 
cause  that  produced  the  effect.     The  proof  offered  was  intended  to  es- 
tablish a  certain  relation  between  cause  and  effect.     The  effect  of  in- 
toxication might  have  been  established  by  well  known  theory,  but  it  was 
put  upon  experience  in  regard  to  the  prisoner  —  that  it  usually  produ(  ed 
certain  results  upon   him.     It  was  not  shown  to  have  produced  that 
effect  in  the  case  in  hand.    The  effect  was  offered  as  a  substitute  for 
both  cause  and  effect.     There  was  no  proof  of  intoxication,  excepting 
as   inferential  from  his  acts  proved.     But  if  allowed  to  be  proved  in 
this  way,  it  could  always  be,  by  violent  acts,  in  any  one.    This  is  not 


812 


FA'IDENCK    AXl)    I'UACTICE. 


Warren  v.  ('oininoiiwealth. 


to  be  thought  of.  When  the  prisoner  was  arrested,  a  few  hours  after 
the  commission  of  the  crime,  not  a  single  witness  spoke  of  him  as  in- 
toxicated. In  the  absence  of  i)roof  of  tiiis  kind,  the  testimony,  the 
substance  of  this  bill  of  exception,  was  irrelevant,  and  properly  over- 
ruled by  the  court. 

We  have  carefully  scrutinized  the  answer  of  the  learned  judge  to  the 
points  put  on  the  trial  by  the  prisoner's  counsel,  and  we  discover  no  error 
whatever  in  them.  They  were  clear,  and  presented  the  law  of  the  case 
broadly  and  fairly.  To  the  argument  that  the  manner  of  killing  was 
evidence  of  intoxication  or  insanity  from  "  some  otiier  cause,"  while 
the  court  very  properly  told  the  jury  that  "  l)arbarity,  indifference  to 
consequences,  and  a  life  of  drunkenness,  it  seems  to  us,  are  not  ele- 
ments from  which  a  jury  could  safely  draw  so  grave  a  conclusion  as 
that  the  prisoner,  from  '  some  other  cause,'  was  unable  to  form  a  wilful, 
deliberate  and  premeditated  design  to  take  tlie  life  of  the  deceased," 
yet  he  added:  "  It  is  for  the  jury  to  draw  conclusions  for  .heraselves. 
J'he  facts  are  for  the  jury,  absolutely  and  conclusively."  This  gave 
the  prisoner  a  full  and  fair  chance  under  the  arguments  of  counsel, 
which  would,  no  doubt,  have  been  effectual  to  have  saved  him  if  there 
had  been  ground  from  which  to  infer  insanity  from  any  cause. 

We  need  not  notice  at  length  the  answers  to  any  of  the  other  points, 
further  than  to  say  we  have  carefully  examined  them,  and  find  nothing 
wrong  in  them.     We  will  briefly  notice  the  answer  to  the  eighth  point. 

It  would  have  been  error  to  have  answered  that  point  in  the  affirma- 
tive, for  the  reason  given  by  the  court.  It  assumed  that  there  was  proof 
of  provocation,  and  that  "  acting  on  a  mind  shattered  by  dissipation," 
says  the  point,  and  "  long-continued  indulgence  in  strong  drink,  to  such 
an  extent  as  to  render  the  prisoner  unable  to  master  himself,  and  form 
a  cool  and  deliberate  purpose  to  kill ;  "  then  it  concluded  with  a  prayer 
to  charge  that  "  the  prisoner  cannot  be  convicted  of  murder  in  the  first 
degree."  "  If  any  doubts,"  it  further  adds,  "  are  in  the  minds  of  the 
jury  as  to  the  fact,  then  theii-  verdict  must  be  for  the  lighter  grade." 
This  was  an  assumption  of  a  state  of  the  case  that  did  not  exist  under 
tho  proof,  and  it  would  have  been  wrong  to  have  affirmed  the  point. 
For  this  reason  we  need  not  discuss  the  merits  of  the  proposition,  but 
we  must  say  that  the  doctrine  that  if  "  any  doubts  "  are  in  the  mind  of 
the  jury  on  the  point  of  deliberation,  their  verdict  should  be  for  murder 
in  the  second  degree,  is  going  a  step  beyond  the  rule.  If  reasonable 
doubts  exist,  this  should  be  so.  It  is  not  every  doubt,  however  slight, 
that  is  to  have  this  effect.     Nor  was  there  any  proof  of  provocation,  to 


EVIDENCE   OF   ACTS   SHOWING    SANITY. 


813 


United  States  v.  Shult^ 


Jurs  after 
im  as  in- 
nony, the 
erly  over- 

ge  to  the 
V  no  error 
the  case 
lliiig  was 
I,"  while 
e 10 nee  to 
not  ele- 
usion  as 
a  wilful, 
ceased," 
mselves. 
his  gave 
counsel, 
if  there 

1'  points, 
nothing 
point, 
affirm  a- 
18  proof 
>ation," 
to  such 
id  form 
I  prayer 
the  first 
I  of  the 
jrade." 
;  under 
;  point. 
)n,  but 
lind  of 
murder 
sonable 
slight, 
ion,  to 


operate  as  stated  in  the  point,  and  wc  tliink  tlie  learned  judge  dealt  with 
it  properly  in  declining  to  affirm  it. 

From  a  careful  scrutiny  of  the  whole  case,  we  are  constrained  to  say 
that  we  see  no  error  in  the  record,  and  that  wc  have  no  power  to  save  the 
prisoner  from  the  legal  consequences  of  his  acts. 

But  we  cannot  dismiss  the  case  without  expressing  astonishment  at  the 
criminal  apathy  on  the  part  of  a  number  of  persons,  men  and  women, 
who  witnessed  the  assaults  of  the  prisoner  on  the  deceased,  which  re- 
sulted in  death,  without  an  effort  to  save  her.  This  is  as  unusual 
amongst  our  people  as  it  is  unaccountable  in  this  instance.  We  notice 
it  to  condemn  it,  not  through  any  apprehensions  that  the  example  is 
likely  ever  to  be  followed.  Our  people,  with  this  exception,  have  too 
much  generosity  and  courage  for  this. 

Judgment  affirmed  and  record  remitted. 


EVIDENCE  OF  ACTS  SHOWING  SANITY. 

United  States  v.  Shults. 

[6  McLean,  121.] 

United  States  Circuit  Qourt,  Ohio,  October  Term,  1854. 

Before  Hon.  John  McLkax,  Associate  Justice  ol  the  Supreme  Court  of  the 
United  States. 

1.  Insanity  — Test  of  Punishability. —  An  inaividual  is  liable  to  punishment  when  he 
can  discriminate  a  right  from  a  wrong  act. 

2- Evidence  of  Acts  Showing  Sanity.  —  When  insanity  is  set  up  a.i  a  defence,  his 

liability  to  punishment  is  best  ascertained  by  considering  his  acts.  Thus,  when  a  person 
is  charged  with  theft  of  money,  evidence  of  his  concealment  of  the  offeacc,  his  endeav- 
ors to  elude  the  officers  of  justice,  and  his  use  of  the  money  stolen,  goes  far  to  show 
that  he  is  sane,  and  to  contradict  contrary  theories  as  to  tho  state  of  his  mind. 

This  is  an  indictment  against  the  defendant,  charging  him,  while  em- 
ployed in  carrying  the  mail  of  the  United  States,  on  a  horse  route,  with 
the  abstraction  of  certain  letters,  which  contained  bank-notes  and  other 
articles  of  value.     Pica  not  guilty  —  juiy  sworn. 

John  Keller,  who  is  postmaster  at  Mount  Ephraim  post-office.  Noble 
county,  in  Ohio,  states  that  the  defendant  carried  the  mail  from  Sarah- 
ville,  in  Noble  County,  to  Washington,  in  Guernsey  County,  a  distance 
of  twenty  miles.     In  June,  latter  part,  or  first  of  July,  witness  mailed 


1 


.S14 


KVIDi:XCE   AND    riUCTICK. 


Uuitcil  States  v.  Shults. 


two  letters  for  California,  which  were  forwarded  to  the  distributing 
oiric'C  at  Wlieeling  or  Cleveland,  directed  to  Nicewall.  The  envelope 
was  returned  to  witness  as  being  found  in  the  road  more  tlum  a  month 
after  it  was  mailed.  The  second  letter  was  rci)orted  to  have  been  found 
on  defendant's  route.  Anotiier  letter  was  found  on  the  same  route, 
which  had  been  mailed  on  tlie  Cth  or  7tli  of  June. 

Mr.  Cliance  says  there  must  have  been  two  violations  of  the  mail 
while  defendant  carried  it,  which  was  about  a  week.  Witness  found  a 
letter  on  the  route  on  Friday  after  defendant  commenced  carrying  the 
mail  on  the  route.  Another  letter  Mas  found  on  tlie  route  which  must 
have  i)assed  through  the  office  of  witness.  Mr.  Forman  is  postmaster 
at  Senecaville.  lie  designates  a  letter  picked  up  on  the  route  ;  another 
letter  found  on  the  road  must  have  been  a  letter  forwarded  in  the  mail. 
Other  witnesses  proved  that  other  letters  were  found  on  the  route,  which 
had  been  mailed  by  the  postmasters  on  the  route,  and  which,  from  their 
face,  purported  to  have  contained  money. 

William  Young  saw  defendant  first  of  June,  and  received  from  him  a 
debt  of  sixty  or  seventy  dollars.  He  had  a  watch,  and  witness  asked 
him  how  he  got  so  much  money  ;  he  replied  that  he  had  sold  a  colt  for 
$60.  Witness  exchanged  with  him  $10,  giving  silver  for  paper ;  next 
day  he  came  and  bought  $30  in  gold  from  witness.  Mr.  Renderneck 
arrested  the  defendant  near  Marietta,  in  a  wood  boat,  at  which  time  be 
admitted  that  he  had  taken  from  the  mail  $76. 

Several  witnesses  were  examined  to  show  mental  imbecility  in  the  de- 
fendant, so  as  to  be  incapable  of  committing  a  crime ;  and  his  defence 
rested  on  this  ground.  Several  medical  gentlemen  were  examined,  who 
differed  somewhat  in  their  opinions,  some  of  them  stating  that  in  their 
view  he  was  not  a  proper  subject  of  punishment. 

In  the  charge  to  the  jury,  the  Court  (McLean,  J.,)  said;  Thfre 
seems  to  be  no  doubt  that  during  the  short  time  the  defendant  e  .  >  I  'oe 
mail  he  repeatedly  violated  it  by  abstracting  letters  frojvi  :r.  . -us  is 
established  by  the  numerous  letters  picked  up  on  or  near  tV  cute, 
which  had  been  mailed  at  one  of  the  post-offices  on  the  route,  or  were 
carried  on  it ;  and  by  the  confession  of  the  defendant  that  he  had  taken 
from  the  mail  $76.  He  was  destitute  of  money  before  he  was  employed 
as  carrier,  after  which  it  appears  he  had  money  to  a  considerable 
amount.  All  this  evidence  is  uncontradicted,  and  the  only  ground  of 
defence  is  mental  imbecility. 

This  defence  has  often  been  made,  and  much  has  been  said  and  writ- 
ten upon  the  subject.  Nothing  is  more  common  than  for  medical  men 
to  differ  as  to  the  fact  of  insanity,  which  should  exculpate  an  individual 


ACTS    AM)    (OM)UCT. 


815 


IJilcvMiit  to  show   Saiiilv, 


listiibuting 
le  oiivolope 
an  a  niontli 
buen  found 
anie  loute, 

)f  the  mail 
«s  found  a 
Jiying  the 
.'hich  must 
postmaster 
2 ;  another 
II  the  mail. 
'Ute,  which 
from  their 

rom  him  a 
ess  asked 
a  colt  for 
per;  next 
.'nderneck 
;h  time  be 

in  the  de- 
s  defence 
ined,  who 
t  in  their 

i;  Thf.re 
...;:1  ':0.e 
=  'US  is 
'  'oute, 
,  or  v.ere 
ad  taken 
niployed 
nderable 
round  of 

nd  writ- 
eal  men 
dividual 


from  punishment.  Wliere  the  insanity  is  in  a  degree  which  destroys 
the  reasoning  faculty,  tliere  can  be  no  difference  of  opinion  amongst 
professional  men  or  jurors.  But  wliere  the  individual  is  sul)ject  to 
occasional  aberrations  of  mind,  or  where  the  mind  socras  to  be  under 
peculiar  excitement  and  error  on  a  particular  subject,  as  is  often  tlie 
case,  and  rational  on  other  subjects,  or  where  the  individual  reasons 
illogically  and  strangely,  which  brings  liiin  to  results  in  action  which 
violate  the  law  ;  in  all  these  cases,  and  others  which  might  be  enumer- 
ated, a  close  investigation  is  required,  and  a  wise  discrimination  should 
be  exercised. 

In  such  cases,  the  important  fact  to  be  ascertained  is,  whether  the 
person  charged  can  discriminate  between  right  and  wrong.  If  he  be 
unable  to  do  this,  he  is  not  a  proper  sul)ject  of  punishment.  And  this 
fact  can  be  best  ascertained,  not  by  any  medical  theor}',  but  by  acts  of 
the  individual  himself.  Every  person  who  commits  a  crime  reasons 
badly.  The  propensity  to  steal  in  some  persons  is  hard  to  resist.  Where 
the  moral  development  is  weal  nd  the  passion  of  acquisitiveness  strong, 
it  will  often  prevail.  This,  in  one  sense,  may  be  evidence  of  a  partial 
insanity,  but  still  the  person  is  a  proper  subject  of  punishment.  And 
there  is  no  other  test  on  this  point,  except  the  knowledge  of  the  indi- 
vidual between  right  and  wrong.  And  this  knowledge  is  best  ascer- 
tained by  the  acts  of  the  individual  in  the  commission  of  the  offence, 
and  subsequently. 

Does  the  individual  commit  the  offence  by  embracing  the  most  favora- 
ble opportunity,  in  the  absence  of  witnesses,  and  under  circumstances 
likely  to  avoid  detection?  And  if  he  steal  money  does  he  account  for 
the  possession  of  it  in  an  honest  way?  And  does  he,  under  an  appre- 
hension of  an  arrest,  endeavor  to  elude  the  officers  of  the  law?  All 
this  conduced  to  show  a  knowledge  that  he  had  not  only  done  wrong, 
but  that  he  was  liable  to  punishment. 

The  defendant  in  this  case  accounted  for  the  amount  of  money  he  had 
in  possession  by  saying  he  received  it  as  the  price  of  a  colt.  He 
changed  the  notes  he  had  for  gold  and  silver,  knowing  that  the  notes 
might  not  be  current  at  the  place  to  which  he  might  go.  Or  he  might 
fear  that  the  notes  might  be  identified  by  those  who  forwarded  them  in 
the  mail.  On  either  supposition  it  showed  a  sound  reflection  on  the 
consequence  of  his  acts  should  he  be  arrested.  He  absconded,  and  was 
arrested  several  miles  from  home,  on  his  way  to  tiie  West.  He  was 
found  in  a  close  room  of  a  boat,  the  door  of  which  was  locked  ;  and  it 
is  proved  that  when  he  came  to  tlie  boat  the  pi-evious  evening,  he  en- 
gaged the  room  and  requested  that  the  door  should  not  be  opened  to  any 


k 


81G 


EVIDENCE    AND   PRACTICE. 


United  States  v.  Shults. 


one.  This  shows  an  apprehension  that  he  irould  be  pursued,  and  a  de- 
sire to  escape  the  pursuit. 

These  acts  would  seem  to  be  unmistakable  evidence  of  a  sense  of 
guilt,  and  a  desire  to  escape  punishment.  lie  acted  under  a  motive 
which  usually  influences  culprits.  When  carrying  the  mail,  on  a  sug- 
gestion being  made  to  him  that  he  might  steal  from  the  mail,  the  peni- 
tentiary immediately  occurred  to  his  mind.  He  bought  and  sold  articles, 
and  evidenced  in  such  matters  no  deficiency  of  mind.  He  knew  the 
value  of  money,  and  understood  the  matter  of  exchange,  and  the  un- 
currency  in  remote  parts  of  bank  notes. 

Upon  the  whole,  gentlemen,  if  you  think  from  the  evidence  in  the 
case  that  the  defendant  in  violating  the  mail  knew  he  was  doing  wrong, 
and  that  he  was  liable  to  be  punished  for  the  act,  he  is  a  proper  subject 
for  punishment.  It  is  true  he  did  not  conceal  the  letters  he  took  from 
the  mail,  but  left  many  of  them  scattered  along  the  road  he  travelled, 
which  shows  a  great  want  of  caution,  still,  if  the  other  qualities  of  his 
mind  were  in  such  rational  exercise  as  to  enable  him  to  discriminate 
right  from  wrong,  you  will  find  him  guilty. 

The  jury  found  the  defendant  guilty,  and  the  court  sentenced  him  to 
ten  years  in  Jie  penitentiary. 


DELIRIUM   TREMENS  —  T1:MP0RARY    INSANITY  —  NO   PRESUMPTION 

of  continuance  —  test. 
State  v.  Sewell. 

[3  Jones  (L.),  245.] 
/n  the  Supreme  Court  of  North  Carolina,  December  Term,  1855. 


Hon.  Frederick  Nash,  Chief  Justice. 
•*     Richmond  M.  Pearson, 
"     William  II.  Battle, 


\  Judges. 


1.  Delirium  Tremens — Temporary  Insanity — No  Presumption  of  Continuance.— 
Delirium  tremeua  to  bo  available  as  a  defence  must  be  shown  to  exist  at  the  time  the 
act  was  done.  In  the  case  of  temporary  insanity  there  is  no  presumption  of  continu- 
ance. 

S.  The  Capacity  to  Distineruish  between  the  Biirht  and  Wrong  of  the  Act  U  the 

test  of  unpuaishable  insanity. 

Indictment  for  murder ;  tried  before  his  Honor  Judge  Saunders,  at 
the  fall  term,  1855,  of  Perquimons  Superior  Court. 


STATK    r.   SKWKI.I,. 


S17 


Kvidciicc  in  Hie  rusr 


,  and  a  de- 

a  sense  of 
sr  a  motive 
)  on  a  sug. 
,  the  peni- 
Id  articles, 
knew  the 
ad  the  un- 

ice  in  the 
ng  wrong, 
er  subject 
took  from 
travelled, 
ies  of  his 
icriminate 

3d  him  to 


[JMPTION 


1855. 


auance.— 

e  time  the 
t  contlnu' 

&.ct  Is  the 
DER8,  at 


llu.  cMicumsluiHvs  ..f  this  case  .lisdoso-l  the  fmi  tl.Mt  the  i.risoner 
had  sh<.t  an  ol.l  free  ne-ro  wonuiii  (a<.v,l  alM„it  Go)  j,,  ,|„,  ^.^os  and  f-u- 
with  a  pisl-.l ;  that  about  an  h..t.r  aftnwar.ls,  l,e  was  found'o,,  a  j.alel 
witli  her,  and  tli.To  were  indications  that  he  luul  ravished  lier  us  she  lay 
msonsible.     There  was  u  jnj.'  of  ]i(,u(  •  on  the  same  pallet. 

There  was  no  question  in  this  court  as  to  the  fact  of  the  killing,  and 
tliereforo  the  voluminous  and  minute  evich-nee  sent  up  as  part  of  the 
case  in  relation  to  the  transactions  connected  with  tlie  crime   is  not  re- 
ported     The  defence  ..f  the  pris„„er  was  insanity,  and  upon  Hiis  point 
the  ev.dencc  was  as  follows  :  David  Beach  swore  he  saw  the  prisoner  on 
the  ^\  e<lnesday  mornin-.-  before  the  act,  which  was  done  on  the   follow- 
ing Frnhiy  ni-j.t.     He  can.e  on  the  morning  previous,  and  stoi.ped    a 
the  hotel  where  witness  lived  ;  he  seemed  very  tremulous,  could  not  use 
one  hand,  anu  had  to  be  helped  at  the  supi)er  table.     The  next  morn- 
ing, just  before  the  prisoner  left,  while  the  witness  was  at  breakfast   he 
came  up  behind  him  stealthily,  seized  his  cup  of  coffee,  and   drank  it 
Witness  did  not  think  the  prisoner  was  in  his  right  mind.     He  had  no 
other  reason  for  coming  to  that  conclusion,  except  his  takin<T  the  coffee 
m  the  manner  he  described,  his  tremuh.usness,  and  the  wil.hiess  of  his 
eyes  ;  but  from  these  things,  he  did  think  so.     Several  witnesses  testi- 
hed  that  on  the  way  to  the  jail,  he  begged  the  persons  about  him  not  to 
hurt  him,  or  that  he  should  not  be  hurt.     At  other  times  he  asked  them 
to  hang  him.     Dr.  Parker  testifx'd  that  he  resided  at  the  South  IMills  in 
Camden  County  ;    that   he  was  called  to  attend  the  prisoner  about  two 
weeks  before  the  homicide;  that  the  prisoner  had  been  drinkincr  verv 
hard,  and  had  delirium  tremens  and  inllammation  of  the  stomach";  that 
he  talked  incoherently,  gave  inconsistent  answers  to  his  questions',  and 
made  foolish  remarks.     The  witness  gave  it  as  his  opinion  that  the  pris- 
oner  was  then  insane.     The  i>risoner  got  better  in  three  or  four  days 
ani  left  the  house,  being  driven  off  by  the  landlord.     When  he  left  the 
prisoner,  he  advised  him  to  desist  from  drinking,  for  that  a  very  little 
indulgence  would  bring  back  the  same  results.     He  stated  that   crenor- 
ally,  insanity  from  this  cause  was  of  short  duration,  but  not  ahvavs  so 
Thomas  Garret  testifu'd  that  in  January  or  Februarv  preceding  th^  hom- 
icide, which  was  on  the  l.'5th  of  April,  the  prisoner  came  to  his  house  in 
Camden  County,  apparently  intoxicated;    he  had  been  drinkinc  very 
freely,  and  was  so  tremulous  that  he  could  not  clean  some  funiiture 
which  he  undertook  to  clean  and  which  was  his  occupation.     Witness 
saw  him  catching  at  something  near  the  fire,  on  one  occasion,  and  asked 
him  what  he  meant;  to  which  he  replied  that  his  jaws  were  locked,  and 
he  wanted  to  get  the  tongs  to  unfasten  them.     One  Wigginston  stated 


/^1H 


i:\  ii)i;\(  r.   a\i>   I'ltACTirK. 


•>lillt'    r.  Si'woll. 


that  he  liiid  known  tlie  prisoiuT  in  Ciiriitiick  (Joiinty  ;  tliut  in  tlio  fnll  of 
I'SiVI.  he  Wiis  ill,  Ills  house,  sunl  iU'lcd  so  vioh-nlly  ii'^  to  ni:ikc  witness 
iifniid  to  trust  liini  alone.  He  wiis  confined  iit  witness'  honse  for  scv- 
( Till  (hiys,  and  acted  irrntioiially.  Witness  thon!_dit  lie  was  finite  ont  of 
his  jnind.  I'lisoner  had  heeii  drinkinjj:  freely.  !!(>  stated  that  heforehe 
hesjtun  to  drink,  prisoner's  behavior  had  heen  goo<l.  C.  H.  Brothers 
staled  that  he  was  the  jailor  to  whose  custody  tln'  prisoner  was  coinniit- 
ted  on  tin;  niixht  of  the  homicide ;  that  ho  was  perfectly  rational  that 
nlujlit ;  Imt  that  next  day.  and  for  si'veial  days,  he  was  out  of  his  inind  ; 
that  he  talked  straiifTely  and  incoherently.  After  a  few  days  he  became 
better  and  continueil  (ptite  rational. 

'I'he  State  in  reply  introduced  the  opinions  of  .several  witnesses,  that  at 
the  time  he  was  taken,  the  prisoner  was  (piitc  .ane  ;  and  many  conver- 
sations were  proved  io  show  the  fact.  On  the  Sunday  before,  it  was 
proved  that  he  was  rational. 

Jt  was  insisted  by  the  prisoner's  counsel,  that  the  presumption  of 
sanity  did  not  arise  in  this  state  of  the  facts ;  ))ut  that  the  prisoner  was 
entitled  to  the  contrary  i)resumption  of  insanity;  and  that  it  devolved 
on  the  State  to  show  that  the  prisoner  was  sane  when  the  act  was  done. 

Ui)on  this  i)oint  his  iionor  charged  the  jury  "  that  to  hold  the  prisoner 
responsible  for  his  act,  it  should  apju-ar  that  at  the  time  of  its  jjcrpetra- 
tion,  he  was  sulliciently  rational  to  distinguish  right  from  wrong,  and 
to  know  that  what  he  was  doing  was  in  violation  of  the  laws  of  God  and 
man,  "  That  the  general  presumption  is  that  all  |)ersons  are  sane,  until 
something  is  shown  to  the  contrary.  When  derangement  or  partial  in- 
sanity is  shown,  and  there  arc  lucid  intervals,  it  is  still  necessary  for 
one  relying  on  insanity  to  show  th:it  the  act  charged  was  done  during 
this  paroxysm  of  insanity."  To  this  instruction  the  prisoner's  counsel 
excepted. 

There  was  a  verdict  finding  the  prisoner  guilty  of  murder.  Judg- 
ment of  the  court  was  pronounced,  and  an  appeal  to  this  court  taken  by 
the  defendant. 

The  Attorne>/-Oeneral,  for  the  State. 

J.  P.  Jordan,  for  the  defendant. 

Nash,  C.  J. — The  elllcacy  of  a  plea  of  incanity  in  shielding  from 
punishment  for  crime  ;  the  necessity  of  drawing  the  dark  picture  of  such 
a  state  of  mind,  and  tracing  out  the  minute  and  delicate  shades  of  this 
sorest  atfllction  to  which  humanity  is  subject,  is  not  required  at  our  hands 
at  this  time.  It  is  not  denied  that  insanity,  to  protect  from  punish- 
ment, must  exist  at  the  time  the  act  is  perpetrated.  This  is  indeed  the 
very   substance  of    the  defence ;  for  however  great   the  disease,  and 


rRESlMITI(»\    (H     <  ONTI.M  A.\(  K. 


Silt 


Dofs  not  .\|i|ily  to  'I"(i,i|)iirary   Iiis.iniiN . 


tllO  filllof 

ikc  witness 
io  for  sev- 
iiite  out  of 
t  before  he 
'i.  IJrotlu'i's 
IS  coinniit- 
if)nii[  that 
his  inind ; 
lie  became 

cs,  tli.'it  at 
uy  c'oiiver- 
)re,  it  wag 

mption  of 
tsoner  was 
t  devolved 
was  done, 
e  prisoner 
l)i'rpetra- 
ron<f,  and 
r  God  and 
iaiie,  until 
partial  in- 
!ssary  for 
ne  d urine: 
's  counsel 

r.     Judg- 
^  taken  bv 


ling  from 
'e  of  sueli 
?s  of  this 
our hands 
a  punish- 
idood  the 
;ase,  and 


in  whatever  form,  if  at  the  time  the  prisoner  romn)its  the  act  his  mind 
is  then  capable  of  distiii-iuishinir  between  moral  riuht  and  wront:,  ho  is 
an  m-countable  beinj;,  and  comes  within  die  operation  of  the  law.  The 
prisoner,  a  fortnight  before  the  perpetration  of  the  offence,  hud  hvou  in  a 
state  of  delirium  tremens,  from  which  he  was  relieved  by  his  i)hyHci:ui. 
who  cautioned  him  against  in;liil<>ing  in  the  use  of  spirits.  Ad'vv  that, 
he  was  proved  to  have  been  in  nis  rigiit  mind  ;  but  a  ft'w  days  before 
on  that  which  the  transaction  oe-'irred.  one  witness  thought,  1,1.  was  not 
in  his  riuht  mind.  His  honor  instructed  the  Jury  as  foll-.ws:  •'The 
general  presuini)tiou  is  that  all  persons  aiv  sane  unlil  something  is  shown 
to  the  coiitraiT.  When  derangement  or  partial  insanity  is  shown,  and 
there  are  lucid  intervals,  it  is  still  necessary  for  one  relying  on  in>anity 
to  show  that  the  act  was  done  when  he  was  laboring  tinder  this  parox- 
ysm of  insanity."  His  honor  then  proceeds  to  apply  these  general 
principles  to  the  case  before  him,  stating  the  grounds  upon  wliFch  the 
State  I'elied,  and  those  upon  which  the  prisoner  rested  his  defence,  and 
winds  up  by  leaving  the  question  of  sanity  or  insanity  of  the  prisoner 
at  the  time  of  committing  the  act  to  the  Jury. 

This  case  is  not  one  of  permanent  insanity,  nor  is  it  one  of  lunacy. 
Mr.  KusrselP  detines  a  lunatic  to  be  one  laboring  uiidr  r  species  of 
demoiitia  acridetifalis  vl  advoititui,  but  distingui.-liable  in  this,  that  he 
is  afllicted  by  his  disorder,  only  at  certain  periods  or  vicissitudes,  hav- 
ing intervals  of  reason. 

It  more  properly  ranges  :;tself  under  the  class  of  partial  insanity, 
though  strictly  not  so.  Partial  insanity  imports  that  the  person  is  in- 
sane on  one  or  more  particular  subjects.^  This  species  of  insanity  is 
termed  monomania.  The  derangement  of  the  prisoner  was  neither  a 
permanent  one,  nor  lunacy,  nor  strictly  partial,  ])nt  a  temi)or:.ry  one 
arising  from  the  too  free  use  of  ardent  spirits.  It  was  temporaiy,  for 
it  lasted  only  during  the  time  the  effects  of  the  spirits  were  upon  him. 
It  had  not  in  his  case  reached  that  period  when  the  mind  becomes  en- 
tirely destroyed.  His  physician  cured  him  of  the  attack  of  delirium 
tremens,  and  stated  that  in  most  cases  the  alienation  of  mind  was  but 
temporary.  It  was  shown  that  after  that  attack,  and  before  the^ict  was 
committed,  he  was  restored  to  his  understanding,  and  there  was  no  evi- 
dence that  delirium  tremens  existed  after  the  time  first  spoken  of.  It 
was  insisted  by  the  prisoner's  counsel,  that  the  presumption  of  sanity, 
in  favor  of  the  State,  did  not  arise  ;  but  that  the  presumption  of  insanity 
did  on  behalf  of  the  prisoner ;  and  that  sanity  must  be  shown  by  the 


1  Iluss.  Cr.  Law,  7. 


"  Shelfoi'il  oil  Lunatics,  ji.  6. 


820 


KMDKXCK    AM)    I'KACTICK. 


Slate  r.  Clnistmas. 


Stnto  i  at  K'jHt  tlmt  tlir  i»r(>smvi|itii)ii  wns  iiol  in  fiivor  of  tlio  Slato.  This 
priiiciiili'.  if  line,  ilnis  iKil,  ii|t|ily  to  tliin  (•.•isc.  II(M'C  was  no  lunacy  ; 
IK)  n-ciii  ri'iH't'  of  tlu'  disease  at  ctTlain  periods;  hnt  ft  1en)|)nr!ny  iiisati- 
ily,  ])r(iiiu'iit  on  ''V  (In-  i/ii.soncr's  own  procurement,  and  inponeral,  dis- 
appearinuf  wiien  tiie  innnediatc  cati-^e  was  leuioveil.  Diiinlxi'nness,  in 
giMieral,  is  no  excusi!  for  ciinie.  Wiieii  it  is  cari'ied  so  fai"  as  to  cause 
delirium  tremens,  any  act  l)ei|ietrated  inider  tlie  diliiinm  is  excused, 
tiioiLi;li  tlie  disease  is  but  temporary;  and  wlien  continued  so  far  as  to 
detiiroiie  reason  altoiretlier,  tlu-  i)rosu.nii)tion  of  law  is  removed  ;  because 
tlie  disease  is  tlieii  pi'rm'.inent ;  the  law  looks  only  to  tlie  state  (;f  the 
mind,  and  not  to  the  causi'  prodin-ins;  it. 

His  honor  is  sustained  in  his  !iencral  i)roposition  by  Lord  IIai.k.' 
lie  lays  down  the  doctrine  more  strongly  tlnin  it  is  done  here;  and  al- 
tliouij;ii  wo  fnid  it  nowhere  stated  in  tlie  same  terms,  wc  find  it  nowhere 
contradicted  in  our  elementary  works  on  crimes. 

In  this  case,  the  general  j)resumption  of  law  was  not  removed,  and  it 
was  incumbent  on  the  prisoner  to  show  that  at  the  time  of  ])erpetrating 
the  offence,  he  was  insane. 

After  his  honor  had  closed  his  remarks,  particular  instructions  were 
asked,  as  set  forth  in  the  case.  His  honor  had  already  given  the  in- 
structions required.     There  is  uo  errcr. 

Per  curiam.  Judgment  affirmed. 


HEREDITARY  INSANITY  —  EVIDENCE  MUST  BE  NOTORIOUS. 
StaTK    V.    ClIRISTMAa. 

[t;  Joaes  (L.),  471.] 
Li  the  Supreme  Court  of  North  Carolina,  June  Term,  1859.    ' 
Hon.  RiCHMONO  M.  Pkarson,  Chief  Justice.. 

'*       WlI.I.I.\M    II.    IJ.VTTLK,   I 

"     TUO.MAS  Rlfi-in.  J  '^"'^Ses. 

Where  Hereditary  Insanity  Is  ofFcn-rt  a.'*  an  excuse  for  crime,  it  must  appear  that  the  in- 
sanity actnuUy  i'.\ists  in  the  prisoner;  that  it  is  not  temi)orary,  but  notorious,  and  of  tho 
same  epecies  as  other  nieuiberet  of  the  family  have  been  alUicted  with. 


Indictment  for  murder  tried  before  Cai.dwell,  J.,  at  the  last  Superior 

1  P.O.,  to).  I,,U. 


Court  of  Orange 


STATK    /•.  (  IIKIST.MAS. 


H-21 


KvldciHc  of  Iiisiiiilty. 


Mto.  Tliifl 
no  lunacy  ; 
I'MiT  iiiHiin- 
'ucriil,  (lis- 
t'linosH,  in 

IS  to  CJHISO 

■<  cxoiisod, 
()  f;ir  an  to 
I ;  because 
tato  of  the 

ml  IIaleJ 

0  ;  aiul  ul- 
it  nowlicM'C 

i'('(L  and  it 
'rpetratiiig 

tions  were 
en  the  in- 
formed. 


lOUS. 


859. 


trtliatthcin- 
is,  aud  of  tbo 


t  Superior 


One  ryround  of  dofencc  set  ui>  by  tlie  priaoner  was  infirmity,  and  for 
"he  purpose  of  showing  that  it  was  u  inahidy  iiercditary  in  lii.s  family, 
he  offered  to  prove  l»y  ii  witness  that  an  uncle  nnd  brotlicr  were  both 
insane.  Tlie  State  objected,  and  the  evidence  was  rejected.  The  pris- 
oner's counsel  I'xcepted. 

Tlie  niotlicr  of  the  prisoner  was  introdm-cd  to  prove  insanity,  and 
sIk!  testilii'd  that  three  wetUs  bef(;re  the  hi>iiiicide,  she;  was  sent  for  b\ 
the  jtristtner's  wife  and  went  to  aid  in  taUinj;  care  of  him.  She  said  she 
found  him  laborinjjf  under  dcruiitrcMnent  of  the  mind  ;  that  she  remained 
with  him  for  two  weeks,  and  during  that  time  he  often  ondeavoied  to 
throw  himself  into  tlie  lire;  that  he  sevi-ral  times  tried  to  strip  himself 
naked;  that  he  tried  to  shout  himself;  tli.it  he  wimld  run  as  though 
some  one  was  pursuinjjj  him,  and  exclaimed  tiiat  some  one  was  pursuing 
him.  She  slated  that  he  was  always  weak  of  mind.  She  further  stated 
that  while  she  was  tlieit',  he  oceasionnlly  went  into  the  neighborhood  and 
staid  all  night  ;  that  she  left  him  eight  days  before  the  homicide,  and  he 
then  appeared  composed,  and  had  been  so  a  day  oi'  two.  Slie  also  tes- 
tilied,  that  these  (its  recurred  at  perioils  for  the  last  two  years,  and  she 
did  not  trust  him  to  manage  her  l)usiiu'ss,  thoULrh  he  and  his  family 
lived  on  her  land,  where  she  Avorked  slaves.  A  witness  testided  that  her 
character  was  good. 

Several  witnesses  were  calleil  by  the  State,  who  testified  that  they  li.ad 
known  the  prisoner  for  eleven,  twelve,  and  thirteen  years  ;  some  for  a 
shorter  time,  and  they  concurred  in  the  statement  that  he  was  addicted 
to  intoxication,  but  they  all  believed  him  to  be  of  .sound  mind.  The 
court,  in  charging  the  jmy,  said  in  relation  to  the  mother's  testimony, 
that  where  near  relatives  were  witnesses,  as  in  the  case  of  a  mother  de- 
posing for  her  son,  the  law  i-egarded  such  testimony  with  a  jealous  eye, 
and  called  on  jurors  to  weigh  it  with  many  grains  of  allowance.  The 
prisoner's  counsel  again  excepted.  The  jury  retired  and  remained  out 
several  hours.  They  came  to  the  coin  t- room  at  a  late  hour  of  the 
night,  and  made  known  that  they  could  not  agree  upon  a  verdict,  and 
asked  for  further  instructions.  Thereupon,  the  court  said  to  them,  that 
if  they  differed  in  their  understanding  of  the  law  as  given  them  in  charge, 
the  court  would  re-charge  them  ;  but  if  they  differed  about  the  facts  of 
the  case,  the  court  could  not  aid  them.  One  of  the  jurors  responded, 
that  their  difference  was  about  the  question  of  insanity,  and  whether  or 
not  they  should  believe  the  prisoner's  mother;  whereupon  the  court  re- 
peated the  charge  above  set  out  on  that  part  of  the  case,  and  told  the 
jary  they  were  to  judge  of  her  evidence  for  themselves. 


822 


KVIDEiNCE    AND    rUACTICK 


State  ?".  Christ  iiiiis. 


The  prisoner's  counsel  then  requested  the  court  to  charge  the  jury, 
that  in  passing  on  tiie  mother's  testimony,  they  had  a  right  to  consider 
her  xlenieanor  on  tlie  stand,  tlie  consistency  of  her  statements,  and  tlie 
fact  that  slie  had  proved  a  good  cliaracter  and  might  he  believed.  The 
court  then  said  to  the  jury,  that  they  were  not  ))ound  to  believe  a  wit- 
ness, whose  character  was  proved  to  be  good,  or  disbelieve  or.e  whose 
character  was  assailed,  but  that  they  Avere  the  constituted  judges  of 
how  far  a  witness  was  to  be  believed.     Defendant  again  excepted. 

To  this  statement,  which  is  coi)ied  almost  literally  from  the  record 
sentto  this  court,  is  appended  the  following  explanatory  note  :  "  It  is  per- 
haps due  to  the  court  to  say,  that  if  the  charge  is  not  in  response  to  the 
instructions  prayed,  it  was  because  the  counsel  who  prayed  the  instruc- 
tions, and  who  .poke  in  a  low  tone  of  voice,  was  not  understood  by  the 
court."  The  prisoner  was  found  guilty  of  murder,  and  upon  judgment 
being  pronounced  ui)on  him.  appealed. 

The  Attomeii- General,  for  the  State. 

Miller  and  B.  F.  Moore,  for  the  defendant. 

Pkauson,  C.  J.  —  No  one  can  read  the  record  in  this  case  without  recciv 
ing  the  Impression,  that  the  instructions  given  by  his  Honor  do  not  put 
the  prisoner's  case  to  the*  jury  in  as  favorable  alight,  as  through  his  coun- 
sel he  requested,  and  had  a  right  to  retpiest,  of  the  court.  After  the 
jury  returned  and  made  known  that  the  case  turned  upon  the  degree  of 
credit  to  which  the  testimony  of  the  mother  of  the  prisoner  was  enti- 
tled, his  counsel  requested  the  court  to  instruct  them  that  in  passing  on 
her  testimony,  they  had  the  right  to  consider  her  demeanor  on  the  stand, 
the  consistency  of  her  statements,  and  the  fact  that  she  had  prmed  a 
good  chaarcter.  This  to  say  the  least  w;is  not  given,  —  in  effect  was  re- 
fused, and  we  have  the  question:  a  proper  instruction  is  prayed  for 
and  refused.  There  is  error.  The  personal  explanation  which  his 
Honor  adds  at  the  foot  of  the  record,  can  have  no  bearing  upon  the  le- 
gal rights  of  the  prisoner. 

We  deem  it  unnecessary  to  notice  the  other  jtarts  of  the  charge  which 
is  excepted  tc,  v.vcept  to  say  the  expression  to  ''  weigh  with  many  grains 
of  allowance,"  is  a  figure  vf  speech,  and  seems  to  have  been  used  in  t';'* 
sense  of  receiving  with  caution,  or  as  his  Honor  says,  with  "  a  jealous 
eye ;"  and  not  in  the  sense  that  some  abatement  or  deduction  was  nec- 
essarily to  be  made. 

The  statement  of  the  case  is  made  up  in  a  manner  so  unsatisfactory 
that  we  are  unwilling  to  express  an  oiiinion  upon  the  admissibility  of 
proof  that  an  uncle  and  a  brother  of  the  prisoner  were  insane,  which 


IIKKKOITAHV    INSAMTV 


823 


l''vi(l(>iicc   Must    He  Xororioiis. 


1  the  jury, 
to  consider 
ts,  and  the 
3vcd.  The 
ieve  a  wit- 
or.e  wliose 

judges  of 
[^ptcd. 
tlie  record 
"  It  isper- 
:)nse  to  the 
le  instruc- 
)od  by  the 

judgment 


out  reeeiv 
:io  not  put 
ihiscoun- 
After  the 
degree  of 
w:is  enti- 
passingon 
the  stand, 
proved  a 
'ct  was  re- 
rayed  for 
vhifh  his 
Du  the  Ic- 


rge  which 
my  grains 
sed  in  th'^ 
a  jealous 
was  iiee- 


was  offt'red  to  show  an  ht-rcditaiy  malady,  as  a  circum.stance  tending  to 
prove  the  allegation  that  the  prisoner  was  iiinist'lf  insune.  It  is  a  hi- 
m  Mitable  fact,  admitted  by  everyone,  that  sucii  maladies  are  hereditarj' ; 
and  it  would  seem  that  proof  of  the  fact  that  members  of  the  family,  so 
related  as  to  have  the  same  blood,  are  or  have  been  afllicted  with  a  like 
malady,  is  admissil)le  as  a  circumstance,  which  aided  by  otlici-  circum- 
stances and  proofs,  would  go  to  show  the  insanity  of  the  prisoner,  al- 
though, of  coursi',  evidence  of  such  hereditary  tnint  in  the  blood  would 
only  be  one  link  in  the  chain,  and  would  not,  hence,  establish  the  fact; 
but  the  <iuestion,  as  to  the  policy  or  e.\|)ediency  of  admitting  such  evi- 
dence in  legal  investigations  presents  many  and  very  great  difficulties; 
it  is  wrong  to  exclude  what  may  lead  to  truth,  and  yet  such  evidence 
would  in  numberless  cases  lead  to  falsehood,  and  scieen  tlie  guilty,  in 
defiance  of  truth.  On  this  account,  we  find  it  in  some  degree,  an  open 
question  in  the  legal  authorities.  Thus  far  the  wa}' seems  to  be  clear; 
in  order  to  render  it  admissible,  the  species^of  insanity  alleged,  and  that 
which  is  offered  to  be  proved  in  respect  to  the  members  of  the  family, 
must  be  of  the  same  character ;  and  the  instances  to  be  proven,  must 
have  been  notorious,  so  as  to  be  capable  of  being  established  by  general 
rei)utation,  and  not  left  to  depend  upon  particular  facts  and  proof,  about 
which  witnesses  may  differ,  and  the  consequences  of  which  would  be  to 
run  off  into  numberless  and  endless  collateral  issues  ;  so  that  in  trying 
the  question  of  the  insanity  of  one,  the  supposed  insanity  of  a  half 
dozen  would  be  drawn  in.  In  this  case,  the  testimony  of  the  prisoner's 
mother,  in  regard  to  his  alleged  insanity,  is  very  vague  and  unsatisfac- 
tory, so  far  as  it  tenus  to  show  the  character  and  kind  of  insanity  with 
which  she  supposed  her  son  to  be  atflicted.  Was  it  temporary  in  its  na- 
ture, like  mania  a  potu?  or  fixed  derangement?  So  is  the  evidence 
which  was  offered  as  to  the  uncle  and  brother.  Was  that  notorious,  or 
only  supposed  to  exist  by  a  few?  W^as  it  vi<nu'a  a  2^otu,  or  of  a  perma- 
nent type ;  and  of  the  like  character,  so  as  to  tend  to  show  an  heredi- 
tary taint?  On  account  of  this  vagueness  we  forbear  to  express  an 
opinion. 

Fer  Curiam.  Jndgmetit  ri'rcr.wL 


;isfactory 
ibility  of 
le,  which 


824 


e>ii)i:n(E  and  "iiactick 


Laros  v,  Coinrnonwcalth. 


EVIDENCE  — MURDKK  BY  POISON  — PRESENT  INSANITY— JURY  TRIAL 

NOT  OF  RIGHT. 

Lauos  V.  Common  WEALTH. 

[S4  Pti.  St.  I'CO.] 
In  the  Siipmne  Court  of  Pcnns'jlvania,  1877. 


Hon.  l).\NiKr,  A(JNK\v,  Chief  Justice 
"     GKouiii:  SiiAUswooi), 

Ul.YSSK.S   MkRCIK, 

Isaac  (i.  Gordon, 
Edwaui)  M.  Paxson, 
Wauhkx  J.  Woodward, 
Jamks  p.  Stkrrett. 


(I 
(I 

u 


Judges. 


1.  Evidence  — Insanity  of  Relatives.  — Until  there  is  some  evidence  of  the  prisoner's 
iii.>-anity,  the  courl  ii  not  obliuuii  ti>  hear  cvidoncu  of  the  insanity  of  his  relatives. 

S.  Murder  by  Poisoningr  —  Evidence.  —  On  a  trial  for  murder  hy  poisoning,  the  defence 
being  insaniiy,  ilie  court  snl)niiltiMl  to  the  jury  the  fact  of  tlie  sanity  or  insanity  of  tlio 
prisoner  on  the  day  he  ])ur''liased  tlie  |ioi.-on  as  well  as  ou  the  day  it  was  aduiiuistered. 
Held,  proper. 

3.  The  Terrible  Nature  of  the  Crime  is  no  evidence  of  insanity. 

4.  Present  Insanity  —  Jury  Trial  not  of  Bigrht.  —  Wlicro  the  jury  have  found  that  the 

prisoner  was  not  insane  at  the  time  of  the  act,  ancl  after  verdict  present  insanity  is  al- 
leged, tlie  trial  of  tliis  pica  by  a  jury  is  not  of  right,  but  rests  in  the  discretion  of  the 
courl. 

Indictment  of  Alien  C.  Laros  fur  the  murder  of  his  father  Martin 
Laros. 

Al  the  trial  ])efore  Meyers,  P.  J. ,  it  appeared  from  the  evidence  that 
on  the  31st  of  May,  1870,  the  family'  of  the  deceased,  consisting  of  him- 
self, his  wife  Mary,  his  children,  Irvin,  Alvin,  Clara,  Alice,  the  prisoner 
Allen,  a  grandchild.  Flora,  and  a  man  named  Moses  Schng,  who  boarded 
with  the  family,  all  sat  down  to  take  siipi)er  ;  shortly  tlieneafter  one  af- 
ter another  of  those  at  the  table,  in  quick  succession,  were  taken  sud- 
denly and  violently  ill.  The  symptoms  of  all  were  alike,  differing, 
however,  in  dctrree,  the  motlier,  father,  and  Schtig  being  most  violently 
affected,  and  the  small  child,  Flora,  and  the  prisoner  the  least.  All  the 
family  were  compelled  to  leave  the  tal)le.  This  sudden  attack  of  sick- 
ness was  followed  almost  immediately  with  vomiting  and  purging,  grip- 
ing pains,  cold  and  clammy  skin,  and  excessive  prostration.  Frcnu  the 
effect  of  this  sickness,  INIary  Ann  Laros,  the  wife  of  jNIartin  Laros,  died 
at  seven  o'clock  on  the  following  morning,  IMartin  Laros  about  one  in 


niY  TRIAL 


le  prisoner's 
■lives. 

the  defence 
aiiityof  the 
iniuistered. 


ind  that  the 
^iiiiily  isal- 
tiou  of  the 


I"  Martiu 

!nce  that 
?of  hira- 
I)nsoner 
boarded 
•  one  af- 
en  sud- 
iffering, 
iolently 
All  the 
of  sick- 

om  tlie 

)s,  died 

one  iu 


LAROS    V.  COMMONWEALTH. 


825 


The  Facts  of  the  Case. 


the  afternoon,  and  Moses  Scluig  on  the  following  day  in  the  afternoon. 
Two  of  the  family  testified  as  to  the  peppery  taste  on  their  lips  and  tongnes 
and  l.nrnlng  sensation  in  the  throat  produced  by  drinking  the  eoffce  at  the 
supper,  and  two  testified  to  a  like  sensation  experienced  from  actual 
experiment  with  white  arsenic  in  solution.     It  was  in  evidence  tlnit  all  par- 
took of  the  coffee  except,  perhaps,  the  prisoner.     A  post  mortan  examina- 
tion discovered  traces  of  arsenic  in  the  stomach  of  the  deceased.     In  the 
coffi'e  pot,  which  had  been  used  l)y  the  family,  a  white  sediment  was 
found,  which,  upon  analysis,  was  discoveied  to  be  arsenic,  and  from  ap- 
pearances, about  four  ounces  and  a  half  Inid  been  deposited  therein. 
The  analysis  was  made  by  Dr.  Mclntyre,  a  rei)utable  physici..  n  of  Kaston, 
and    Mr.    Davidson,    of    Lafayette    College,  according    to    the    most 
approved  scientific  tests,  and  both  pronounced  the  sediment  to  be  ar- 
senic.    It  was  shown  that  the  prisoner,  a  d.'iy  or  two  before  the  poison- 
ing, bad  purchased  in  a  drug  store  in  p:aston,  of  Dr.  Voorlices,  about 
four  and  a  half  ounces  of  arsenic  for  the  purpose,  as  he  alleged,  of  kill- 
ing rats,  and  that  at  the  same  time  he  had  bought  a  bottle  of  Brown's 
Camphorated  Dentrifice.     The  prisoner,  subsequent  to  the  poisoning, 
made  declarations  to  witnesses  about  having  made  such  a  purchase  of  the 
dentrifice  al)out  the.time  name.l,  and  the  Iwttle  was  found  in  the  house 
of  the  deceased.     lie  also  made  certain  declarations  about  the  conceal- 
ment of  money  belonging  to  the  deceased  and  IMoses  Scliug,  and  money 
was  found  at  the  place  indicated.     William  Schugtestifiod,°that  in  reply 
to  a  question  as  to  what  he  meant  by  doing  a  deed  of  that  kind,  alluding 
to  the  poisoning,  the  prisoner  said  :   "  Bill,  I  don't  know  why  I  done  it^I 
I  had  no  cause  to  do  it,  and  I  am  sorry  it  is  the  way  it  is  ;  but  it  is  too 
late."     It  appeared  that  the  prisoner  was  at  home  an  hour  or  two  pre- 
vious to  the  supper,  and  could  have  had  an  opportunity  to  have  depos- 
ited the  poison  iu  the  coffee  pot. 

The  defence  was  that  the  prisoner  at  the  time  he  committed  the  act, 
was  insane,  and  therefore  not  criminally  responsible,  and  much  testi- 
mony was  given  in  regard  to  his  being  subject  to  epileptic  fits,  and  the 
effects  therefrom  on  the  mind  of  the  prisoner.  It  was  also  attempted  to 
be  shown  that  there  was  au  hereditary  tendency  to  insanity  in  the  family 
of  the  prisoner.  The  assignments  of  error  Avere  thirty-thr(>e  in  number, 
but  those  only  are  noted  here  which  are  passed  ui)on  by  this  court. 

The  seventh  assignment  was  that  the  coiu't  errred  in  permitting  Dr. 
Green  to  testify  as  to  the  knowledge  and  qualifications  of  Dr.  Mclntyre 
to  make  a  chemical  analysis. 

The  eighth,  in  permitting  Dr.  Green  to  testify  to  the  correctness  of 
the  tests  made  by  Dr.  IMcIntyre. 


82(5 


EVIDKNCK    AM)    I'KACTKK. 


Liiros  r.  Coimiioiiwi'iiltli. 


The  nintli,  in  pennitliiio-  Dr.  Green,  to  testify  wlictJH  r  tlic  methods  used 
by  Mr.  Davidson  to  iiscertain  the  existence  of  arsenic,  were  scientifi- 
cally correct. 

Tiie  tenth,  in  permitting  Dr.  Voorhoes  to  testify  that  the  prisoner,  be- 
fore the  coroner's  inquest,  wlicn  under  oath  ar.d  suspected  of  the  mur- 
der, admitted  to  him  or  in  his  i)rcsence  that  he  had  purchased  a  bottle 
of  "  Brown's  Dentrifice  "  from  him  in  Eastou,  similar  to  the  one  then 
produced. 

The  eleventh  in  permitting  the  Commonwealth  to  prove  b}'  William  Bit- 
ters, the  deputy  constable,  certain  admissions  of  tlie  prisoner  relating 
to  the  concealment  of  money  belonging  to  his  fatiier  and  Moses  Schug. 

The  assignments  from  the  thirteenth  to  the  nineteenth,  inclusive,  em- 
braced the  following  offers  of  evidence,  which  the  court  refused.  To  prove 
by  the  ])rother  of  the  prisoner  that  the  paternal  grandfather  of  the  pris- 
oner acted  in  a  manner  indicating  unsoundness  of  mind  ;  to  show  while 
the  prisoner  was  a  meml)er  of  his  father's  family  licnv  his  father  edu- 
cated and  brought  up  his  family  with  reference  to  religious  and  moral 
instruction  and  conduct ;  to  sliow  -wlu'tiier  the  treatment  of  the  prisoner 
by  the  father  and  the  rest  of  the  family  was  kind  or  not;  to  prove  that 
the  brother  of  the  prisoner  committed  suicide  by  hanging  himself,  with- 
out any  apparent  cause ;  to  prove  that  the  uncle  of  the  mother  of  the 
prisoner  is  insane,  and  has  been  for  j'cars  ;  to  prove  that  the  brother  of 
the  prisoner's  grandmother  on  his  father's  side  committed  suicide  by 
hanging  himself,  without  any  known  motive  —  all  these  offers  as  evi- 
dence for  the  jury  upon  the  question  of  the  insanity  of  the  prisoner. 

The  twentieth,  that  the  court  erred  in  refusing  the  defendant's  third 
point,  which  was  as  follows  :  — 

3.  That  the  case  of  the  Commonwealth,  being  one  of  circumstantial 
testimony,  it  must  to  a  moral  ciTtainty  exclude  every  other  hypothesis 
but  the  one  of  the  death  of  the  deceased  b}'  arsenious  acid  through  the 
criminal  agency  of  the  defendant. 

The  twenty-first  was  the  answer  to  the  fourth  point,  which  was  as  fol- 
lows :  — 

4.  If  the  jury  find,  beyond  a  reasonable  doubt,  that  Martin  Laros 
was  poisoned  by  the  defendant,  and  further  find  by  the  weight  of  the 
evidence  that  at  the  time  the  act  was  connnitted  the  prisoner  was  in- 
capable of  judging  whether  or  not  the  particular  act  which  occasioned 
death  was  criminal,  or  if  he  knew  it  was  criminal,  but  was  imi)elU'd  to 
the  consequences,  which  he  saw  and  iniderstood,  but  could  not  avoid, 
and  was  placed  under  a  coercion  from  mental  disease,  which,  ^\..iie  the 
results  of  the  act  were  clearly  perceived,  he  was  incai)able  of  resisting, 


POISOMN(i  —  INSANITY. 


827 


Instruct i. HIS   Hcfusctl. 


otliods  used 
re  seientifi- 

risoner,  be- 
ot  the  ruur- 
;ed  a  bottle 
le  one  theu 

.Villiam  Bit- 
ler  relating 
)sos  Scliiig. 
'iusi\e,  em- 
I.  To  prove 
)f  the  p fis- 
sile w  while 
father  edu- 
and  moral 
lie  prisoner 
prove  that 
iself,  with- 
Iher  of  the 
brother  of 
suicide  by 
-M's  as  evi- 
•risoner. 
ant's  third 

umstantial 
liypothcsis 
irough  the 

vas  as  fol- 

rtin  Laros 
>ht  of  the 
er  was  iu- 
ccasioned 
ipclk'd  to 
ot  avoid, 
^\.-iie  the 
resistintr, 


the  verdict  must  be,  "Not  guilty  by  reason  of  insanity."  Answer: 
"So  niiK'h  of  the  point  ending  with  the  word  '  criminal '  in  the  .sfventli 
line  is  allirmed.  The  leniaiiiing  part  of  the  point  is  not  alliniied,  as 
the  evidence  submitted  to  the  jury  is  not  a|)plical)le  to  the  legal  prin- 
ciple (if  true)  contained  in  the  part  of  the  point." 

The  assignments  from  the  twenty-second  to  the  twenty-sixth,  inclusive, 
were  the  refusals  by  the  court  of  tlie  following  points  of  defendant: 

5.  That  murder  by  poison  is  only  pri'sumptive  murder  in  tlie  first  de- 
gree, and  if,  upon  the  whole  of  the  evidence,  the  jury  are  not  satisfied 
beyond  a  reasonable  doubt  that  the  mind  of  the  prisoner  at  the  time  of 
the  act  was  so  free  from  mental  disease  as  to  allow  him  to  dclilx'rately 
premeditate  the  death  of  the  deceased,  and  they  are  satisfied  beyond  a 
reasonal)le  doubt  of  the  poisoning  of  JMartin  Laros  by  the  defendant, 
the  verdict  must  be  guilty  of  murder  in  the  second  degree,  if  they 
should  not  find  him  in.o  guilty  by  reason  of  insanity. 

8.  If,  from  the  evidence  in  tiie  case,  the  jnry  should  find,  beyond  a 
reasonal)le  doubt,  that  Martin  Laros  died  of  poison  administered  by  the 
defendant,  but  should  have  a  reasonable  doubt  as  to  the  sanity  or  in- 
sanity of  the  prisoner  at  the  time  of  the  commission  of  the  alleged  act 
of  poisoning,  it  is  their  duty  to  convict  of  murder  in  the  scconil  degree. 

9.  The  ability  todistingnish  between  right  and  wrong  in  the  particu- 
lar act  is  not  the  sole  test  of  criminal  responsibility,  and  if  the  fact  of 
poisoning  having  been  found  beyond  a  reasonable  doubt,  the  jury  are 
satisfied  by  the  preponderance  of  evidence  in  the  case  that  the  prisoner, 
although  cognizant  of  the  moral  quality  of  the  act  at  the  time,  was  not 
able  to  resist  the  impulse  to  commit  the  act  by  reason  of  mental  de- 
rangement, it  is  their  duty  to  render  a  verdict  of  not  guilty,  by  reason 
of  insanity. 

11.  If  the  jury  are  satisfied  by  the  weight  of  the  evidence  that  at  the 
time  of  the  commission  of  the  alleged  act  of  poisoning  the  prisoner  was 
laboring  under  mental  derangement,  whether  partial  or  general,  of  a  de- 
gree sufTlcient  to  h:i\e  controlled  his  will,  and  to  have  taken  from  liim 
freedom  of  moral  action,  the  verdict  of  the  jury  should  be  not  guilty, 
by  reason  of  insanity. 

12.  If,  l)y  reason  of  mental  derangement  existing  at  the  time,  thede- 
fen;lant  had  not  power  to  control  the  disposition  to  commit  the  paiticii- 
lar  act,  he  is  not  responsible  therefor,  and  the  verdict  must  be  not 
guilty,  by  reason  of  insanity. 

The  twenty-seventh  assignment  was  the  following  portion  of  the  general 
charge :  — 

"There   is    no  evidence  in  the  case  showing  tiiat  if  even  Allen  C. 


828 


KVIliENCE    A\l>   PKACTICK. 


Luros  V.  Conimoiiwealth. 


i>^A 


Laros  was  at  the  time  laboring  uudor  a  genoial  or  partial  insanity,  he 
was  ever  subject  to  delusions*  or  to  homiciihil  mania,  or  that  in  conse- 
quence of  such  delusion  or  homicidal  mania  he  committed  the  act  with 
which  he  is  charged.  Tiie  only  and  remaining  question  is,  was  Allen 
C.  Laros,  at  the  time  of  committing  the  act,  laboring  under  such  a  de- 
fect of  reason  from  disease  of  the  mind,  as  not  to  know  the  nature  or 
quality  of  the  act  he  was  doing  or  if  he  did  know  it  that  he  did  not 
know  he  was  doing  wrong." 

The  twenty-eighth  assignment  was  the  portion  of  the  general  charge 
following  in  brackets:  — 

"  We  have  already  stated  to  you  that  the  defendant  is  piesumed  to  be 
sane.  And  the  burden  is  on  him  to  prove  to  your  satisfaction  that  he 
was  insane.  [You  cannot,  however,  infer  insanity  from  the  heinous  and 
atrocious  character  of  the  crime,  or  to  constitute  it  as  an  element  in 
the  proof  of  actual  insanity-.]" 

The  thirtieth  was  the  portion  of  the  general  charge  following  in 
brackets :  — 

"  In  either  event,  whether  you  find  that  the  prisoner  had  or  had  not 
epilepsy,  it  will  l»e  your  duty  to  examine  all  the  testimony  carefully,  in 
all  its  details,  to  ascertain  the  condition  of  Allen  C.  Laros'  mind  from 
1872  up  to  the  31st  of  IMay,  1870.  You  will  ascertain  how  many  at- 
tacks of  convulsions  he  had,  their  force,  character  and  duration,  whether 
he  had  any  stui)or  or  disorder  of  the  mind  immediately  preceding  or 
succeeding  each  convulsion,  as  well  as  their  character  and  duration. 
You  will  ascertain  what  effect  these  convulsions  had  upon  his  mind, 
health,  disjiosition,  and  temper.  Y'ou  will  examine  into  all  his  acts  and 
conversations  as  detailed  by  the  witnesses,  whether  in  the  school-room, 
at  home,  in  the  liigliways,  or  wherever  the  witnesses  placed  him,  up  to 
theUlst  of  May  last  and  immediately  afterwards.  [You  will  compare 
the  testimony  of  witnesses  as  to  sanity  or  insanity,  carefully  scrutiniz- 
ing the  facts  upon  which  they  were  found,  and  after  having  exhausted 
all  the  evidence  bearing  upon  the  question  of  sanity  and  insanity,  it  will 
be  for  you.  to  say  whether  or  not  Allen  C.  Laros  hassatislicdyou  by  the 
weight  of  the  evidence  that  on  the  evening  of  the  31st  of  ^lay,  as  well 
as  on  the  day  it  is  alleged  that  he  purchased  the  white  arsenic,  he  was 
insane  and  not  criminally  responsible  for  the  commission  of  the  crime 
charged  against  him.]" 

The  jury  rendered  a  verdict  of  murder  in  tiie  first  degree.  When  the 
prisoner  was  called  for  sentence,  his  counsel  filed  the  following  plea,  in 
bar  of  sentence : — 

"Now,  the   30th  day  of  October,  A.  D.  187G,  the  defendant  being 


i 


insanity,  he 
lit  in  conse- 
he  act  with 
,  was  Allen 
"  sneh  a.  de- 
e  natnre  or 
lie  iliil  not 

eral  charge 

umed  to  be 
ion  that  he 
icinous  and 
elemont  in 


»llo\ving  in 


»r  had  not 
irefnlly,  in 
mind  from 
V  many  at- 
n,  whether 
seeding  or 

duration. 

his  mind, 
s  acts  and 
ool-room, 
im,  up  to 
1  oorai)are 
scrutiniz- 
Jxhausted 
ty,  it  will 
ou  by  the 
i',  as  well 
\  lie  was 
ho  crime 

iVlicn  the 
J  plea,  in 

nt  being 


INSANITY   AFTER    CONVirTION, 


829 


rnicticc 


present  in  court,  and  being  now  asked  here  wiiat  he  ha.s  to  say  for  him- 
self why  tlie  court  siiould  not  proceed  to  judgment  and  execution  u|)ou 
the  verdict  of  the  jury  for  murder  in  the  first  degree,  hi  l)y  his  couusel 
for  plea  in  bar  of  the  sentence  of  the  court,  saith  that  since  the  com- 
mission of  the  offence  for  which  the  defendant  was  indicted,  and  since 
the  verdict  aforesaid,  he  has  l)cconie,  niid  is  now  insane,  and  this  he  is 
ready  to  verify  and  prove.  Whereupon  he  prays  judgment,"  etc. 
The  district  attorney  filed  the  following  replication  :  — 
''And  now,  October  SOth,  IHTH,  the  Commonwealth,  by  John  C.  Mer- 
rill, district  attorney,  for  answer  to  the  plea  of  the  dofciidnnt  why 
sentence  should  not  be  pronounced  upon  him,  says  that  the  said  defend- 
ant has  not  become  and  is  not  now  insane,  and  the  said  Commonwealth, 
therefore,  prays  that  the  judgment  of  the  law  be  pronounced  by  the 
court  upon  the  said  defendant." 

To    this    replication    the    defendant's    counsel    demurred,    on    the 
grounds, — 

1.  That  the  district  attorney  toucjies  no  issue  by  his  replication  and  no 
mode  of  trial. 

2.  That  the  repUcation  should  tender  a  trial  by  the  country,  being  a 
traverse  of  matter  of  fact. 

3.  That  it  prays  judgment  of  the  court  upon  the  question  as  a  matter 
of  law. 

4.  That  the  said  replication  is,  in  other  respects,  uncertain,  infonnal, 
and  insufficient. 

The  court  overruled  this  demurrer. 

The  prisoner's  counsel  on  the  same  day  filed  another  plea  in  bar  of 
sentence,  which  averred  at  the  time  of  the  charge  of  the  court  to  the  j'lry 
and  at  the  delivery  of  the  verdict  the  said  defendant  was  laboring  un- 
der temporary  insanity,  produced  by  epilepsy  or  some  other  nervous 
disease,  and  was  totally  inca])able  of  understanding  and  was  actually 
unconscious  of  the  proceedings  attending  the  chaige  of  the  court,  ai.d 
the  rendition  of  the  verdict,  and  this  he  is  ready  to  verify  and  prove  ; 
wherefore,  he  prays  judgment,  etc. 

The  district  attorney  moved  that  this  plea  be  stricken  off,  for  the  rea- 
son that  the  matters  therein  alleged  cannot  now  be  heard,  as  they  are 
without  the  jurisdiction  of  the  court,  which  motion  the  court  sus- 
tained. 

The  prisoner  was  then  called  by  the  court,  who  proceeded  to  inter- 
rogate him  for  the  purpose  t)f  testing  the  question  of  his  insanity. 

They  then  sentenced  the  prisoner  to  be  lianged. 


s;u) 


FAIOKNCIO    AM)    I'KArTICK. 


liiii'os  V.  CoiiiiiKiinvcultli. 


Tlie  iUfeiul:iiit  tlu'ii  took  lliis  writ,  the  assijjimu'iita  of  error  being 
tlujse  heretofore  notetl,  and  tlie  following  relative  lu  the  proceedings 
aubseqiieiit  to  the  A'erdict. 

151.  The  courterred  in  overnilinij:  the  demurrer  of  the  defendant  to 
the  replieation  liy  tlie  Commonwealth  to  the  prisoner's  plea  in  bar  of 
Ihewentenee  tiled  October  ;H)tli,  ISTO. 

;{2.  In  proceeding  to  sentence  the  prisoner  without  directing  a  trial 
of  the  (luestion  of  his  insanity,  asj  raised  by  his  i)lea  in  bar  of  the  scu- 
tence,  befoi-c  a  jiu'v, 

33.  In  interrogating  the  prisoner  for  the  purpose  of  trying  the  ques- 
tion of  insanity,  as  raisi'd  by  his  plea  in  bar  of  sentence. 

W.  S.  Kirkpdtrick  and  ILnrij  \V.  Scott,  for  the  plaintiff  in  error. 

./.  iJ.  Mcrril.  District  Attorney,  and  Edward  J.  Fox,  for  the  Com- 
monwealth. 

Chief  Justice  Acjnkw  delivered  the  opinion  of  the  court. 

On  reading  these  assignnu-nts  of  error  the  first  impression  ia  that 
Home  of  them  must  be  sustained. 

But  a  careful  review  of  the  testimony,  running  in  its  current  and 
along  with  the  bills  of  exceptions  as  they  were  talcen,  discloses  that 
they  are  groundli'ss.  The  case  was  carefully  tried,  and  the  rulings  fair 
and  substantially  correct.  In  such  a  case  as  this  slight  inaccuracies 
doing  no  substantial  hurt  to  the  prisoiuM',  ought  not  to  tui'u  aside  the 
course  of  justice.  The  desperate  condition  of  offenders  often  leads  to 
many  shifts  to  escape.  Insanity  is  a  common  resort,  but  thelmrden  of 
its  proof  lies  on  the  prisoner,  and  it  is  not  every  proposition  he  makes 
must  be  allowed,  especially  when  it  tends  to  mislead  the  jury. 

Some  of  the  assignments  were  not  proper  and  others  pressed  are  not 
tenable.  The  objection  to  the  question  to  Dr.  Green  as  to  his  knowl- 
edge of  Dr.  Mclntire's  learning  in  the  science  of  chemistry  and  his 
qualiJication  to  make  an  analysis  quantitative  and  qualitative  is  iiot 
sustained.  Dr.  Mclntire  had  testified  to  his  own  knowledge  and  'com- 
petency and  the  tf'«*^^imony  offered  was  only  conlh-matoiy.  The  question 
related  to  Dr.  Green's  knowledge,  as  a  matter  of  fact,  deiived  from 
observation.  It  was  not  a  question  of  mere  reputation,  but  of  Dr. 
Green's  own  knowledge,  acquired  from  full  opportunity  of  observation. 
If  I  have  seen  a  workman  doing  his  work  frequently,  and  know  his 
skill  myself,  surely,  if  I  am  mj-self  a  judge  of  such  work,  I  can  testify 
to  his  skill. 

The  eighth  and  ninth  assignments  have  even  less  ground  of  support. 
Dr.  Green  being  himself   a  skilful  expert,  it  was  competent  for  him  to 


P 


error  Itcing 

^fondant  to 
■tt  ill  bar  of 

't'niij;  a  trial 
of  tlio  scu- 

g  the  ques- 

1  error, 
tiie  Com- 


ion  is  that 

irrent  and 
:;lo8es  that 
uliiigs  fair 
accuracies 
aside  the 
n  leads  to 
burden  of 
he  makes 

'd  are  not 
liis  knowl- 
y  and  his 
ive  is  iiot 
and  c'oin- 
c  question 
\ed  from 
It  of  Dr. 
serration, 
know  his 
an  testify 

support, 
r   him  to 


\ 


i:\ii)i;.\(i;  or  insamtv 


.Must    I'll'  (liar  aixl   Nnhirioiis. 


H'M 


tostifv  to  the  eorrccliioss  ,,f  t|,e  H'sts  used  by  Dr.    .M.Intirc,  :is  stnlvd 
by  him  in  his  testimony. 

The  t(Mitli  assi^rinuriK,  is  uiisul)stant,i.'il.  It,  is  needless  to  inquire  into 
the  (•..mpelency  of  the  testimony  of  the  prisoner,  before  the  c.n.ner's 
in(iuest,  when  Dr.  Voorhees  himself  testilied  to  the  fiict  iulmitted  by  the 
prisoner.  The  doctor  sold  Jiimtho  bottle  of  .lentrilice  when  lies.. hi  him 
the  arsenic  and  i(h>ntilled  the  j.risoner  as  the  purchaser.  Nur  is  il 
necessary  to  iiupiiro  into  tiic  conq.etency  of  i\w,  confession  nnide  to 
U'iili:im  Hitters,  rehitive  to  the  eniicenlment  of  the  --.oiiey,  referred  lo 
in  the  eleventh  assiginnent,  when  it  is  pn.ved  that  in  conse.|uence  <.f  the 
information,  search  ";is  miide  at  the  place  described  by  the  prisoner,  jind 
the  money  found  there.  And  :.dmission  not  cmipctent  as  a  conf<'ssion 
is  admissible  when  ils  linth  is  proved  i)y  the  revelation  of  the  fact  by 
search. 

The  assignments  of  error  from  the  thirteenth  to  the  ninteenth  inclusive 
may  all  be  disposed  of  in  a  breath.  They  were  all  offers  collateral  or 
secondary  to  the  proof  of  insanity,  and  were  not,  admissible  until  direct 
evidence  of  the  prisoner's  insanity  had  been  given.  A  court  is  not  bound 
to  hear  evidence  of  the  insanity  of  a  man's  relatives,  or  evidence  of  his 
proper  instruction  in  morals  and  reliirjon,  or  of  the  kind  trcMtmcnt  of 
his  relatives  and  friends,  as  grounds  of  a  presumption  of  possible  insnn- 
ity,  imtil  some  evidence  has  been  given  that  the  prisoner  himself  has 
shown  signs  of  his  own  insanity.  Now  when  these  offers  were  miide,  no 
evidence  of  his  own  insanity  had  l)een  given.  That  he  had  at  Ion"- 
intervals  before  the  week  of  the  nuirder  suffered  spasms  or  fits  of  some 
kind  affecting  him  bodily  is  all  that  iiad  been  proved,  but  no  mental 
unsoundness  has  been  shown.  These  offers  were  not  renewed  after 
evidence  was  given  of  an  affection  resembling  epilepsy  and  a  j.ossible 
epilei)tic  insanity.  Indeed  the  evidence  of  a  possible  ei)ilcptic  insanity 
was  so  weak  it  would  scarcely  have  been  substantial  error  to  reject  the 
evidence  a  second  time.  It  must  not  be  forgotten  that  acccrding  to  the 
evidence,  or  even  ac(!ording  to  common  observation,  epilcj)  ■,  is  not 
commonly  followed  l)y  insanity,  until  after  along  time  from  Hie  first 
attack,  and  tiiat  the  proof  of  epilepsy  furnishes  no  immedi;ite  presump- 
tion of  insanity.  There  was  no  error  in  the  rejection  of  these  offers 
when  made. 

The  twentieth  assignment  is  not  supported  by  the  fact  asserted  in  the 
point.  The  case  was  not  one  wholly  of  circumstantial  evidence.  There 
was  the  prisoner's  admission  of  his  act  made  to  William  Schug.  In 
answer  to  Schug's  question,  what  he  meant  by  doing  a  deed  of  th^t 
kind,  he  said:  "Bill,  I  don't  know  why  I  done  it.     I  had  no  cause  to 


832 


EVIDKNCK    AM)    PHArTK'K. 


Liirns  V.  ('ommoiiwealth. 


do  it,  juid  I  Hill  suny  it,  is  the  w.v,  i'  is;  lull,  it  is  too  laic."  Tiio  cii- 
(iiunstuiici's  tiu'iiiselvi's  were  vt'r\  stioiiu;.  Tlii'  luii'ciiiiso  of  the  poison, 
its  (iiuuilily,  tlie  qimiitity  foinid  in  tin-  coffi-f-pot  and  the  fiicts  attcnd- 
iiiff  llio  poison  were  vitv  direct, 

'i'JK!  Jis^ii^ni.ionts  from  tlio  twenty-first  to  (ho  wonty-sovonth  Inrhisivr 
jii'o  subject  t(i  the  iuno  inlirniity  ;  tlio  iiisiiiricifiicy  of  the  cvifU'iicc  of 
insanity.  The  only  possible  (lui'stion  was  that  of  epileptic  insanity,  and 
this  the  court  .•.ubinitte(l  to  the  jury  very  fairly.  It  may  be  said  of 
nil  these  points  in  view  of  the  evideni-e,  they  "were  abstract  and  unsub- 
stantial. 

'J'iii'  twcnty-eiiihth  assiijnment  {)resent3  an  apparent  dilFiculty.  Stand- 
ing isolated  from  the  charire,  it  seems  to  li'  unsound.  But  taken  in  its 
proper  connection  an<l  according  to  the  meaning  of  the  court,  the  latter 
branch  of  the  sentence  which  contains  the  nllejied  error  is  not  justly 
chargealtle  with  error.  The  court  had  said,  the  only  remaining  C|Ucstion 
is  ujioii  the  insanity  of  the  prisoner,  that  he  is  presumed  to  be  sane,  and 
the  burden  is  on  him  to  prove  to  your  satisfaction  that  he  is  insane. 
Then  the  objected  sentence  follows:  ''You  cannot,  however,  infer  in- 
sanity from  the  heinous  and  atrocious  character  of  the  crime,  or  to  con- 
stitute it  as  an  element  in  the  proof  of  actual  insanity."  The  court  did 
not  mean  to  say  that  when  proof  of  insanity  is  given,  the  horrid  and  un- 
natural character  of  the  crime  will  lend  no  weight  to  the  proof ;  but 
meant  only  that  the  tcrrilile  nature  of  the  crime  will  not  stand  as  the 
proof  itself,  or  an  element  in  the  proof  of  the  fact  of  insanity.  There 
is  a  manifest  difference  between  tiirJ,  which  is  actual  evidence  of  a  fact, 
and  tha'^  whicr  niercly  lends  weiLiht  to  the  evidence  which  constitutes 
the  proof.  Thit:  is  all  the  court  meant  That  part  of  the  charge  con- 
tained in  the  thirtieth  assignment  i:  not  objectional  when  read  with  its 
context,  and  properly  understood.  The  court  did  not  say  that  the  jury 
must  find  insanity  on  the  da}'  of  the  purchase  of  the  poison  in  order  to 
acquit.  On  the  coiitrr.ry,  th:  jury  were  instructed  in  several  parts  of 
the  charge  that  the  insr.nit;)-  must  have  existed  at  the  time  of  the  com- 
mission of  the  offence,  The  paragraph  containing  the  sentence  objected 
to  was  employed  in  presenting  the  matters  of  fact  relied  upon  bj'  both 
sides  as  evidence  upon  the  question  of  epileptic  insanity  previous  to  the 
time  of  the  poisoning.  The  fact  of  sanity  or  insanity  on  the  day  of  the 
purchase  of  the  poison  had  a  very  direct  bearing  on  the  fact  of  insanity 
when  the  poison  was  administered.  Hence  the  court  properly  submitted 
the  fact  of  sanity  or  insanity  on  both  days  as  bearing  directly  upon  the 
issue,  but  not  as  both  necessary  to  an  acquittal. 


MENTAL    CONDITION   OF    RELATIVES. 


83;{ 


llagttii  V.  Slutc. 


I  lio  cir- 
tlie  ixiisou. 
ets  sutend- 

th  liiplnsivc 
'vidciice  of 
isfiiiity.  !ui<l 
1)0  said  of 
iind  unsub- 

y.  Stand- 
takoii  ill  its 
;,  the  hitter 
>  not  justly 
ig  question 
p  stuic.  and 

is  insane, 
r,  infer  in- 
,  or  to  con- 
e  court  did 
"id  and  un- 
iroof;  but 
and  as  tlie 
:y.     There 
!  of  a  fact, 
constitutes 
liarge  con- 
:id  witli  its 
it  the  jury 
n  order  to 
1  parts  of 
'  the  coin- 
e  objected 
'H  b}'  both 
ous  to  the 
^ay  of  the 
f  insanity 
submitted 

upon  the 


The  last  three  a-ssignmcnts  of  error  raise  a  single  question  upon  the 
power  of  the  court  to  inquire  by  inspection  and  jxir  tr.sles  into  tiie  insan- 
ity of  tlie  prisoner  since  verdict.  We  have  no  i)recedeiitH  in  this  State, 
known  to  us,  how  the  inquiry  shall  be  conducted  when  such  a  plea  in 
bar  of  sentence  is  put  in.  It  seems  to  us,  however,  that  no  right  of 
trial  by  jury  is  involved  in  the  question  :  A  jury  having  found  a  verdict 
against  the  plea  of  insanity  when  set  up  as  a  defence  to  C(niviction,  sub- 
sequent insanity  cannot  be  set  up  in  disjjioof  of  the  conviction.  The 
plea  at  this  stage  is  only  an  appeal  to  the  humanity  of  the  court  to  post- 
pone the  puuisliracnt  until  a  recovery  takes  place,  as  a  mer(!iful  dispen- 
sation. 

Tiie  rights  of  the  prisoner  as  an  offender  on  trial  for  an  offence  are 
not  involved.  He  has  had  the  benelit  of  a  jury  trial,  and  it  is  now  the 
court  only  which  must  be  satisfied  on  the  score  of  humanity.  If  the 
right  of  trial  by  jury  exist  at  all,  it  must  exist  at  all  times,  no  matter  how 
often  the  plea  is  repeated  alleging  insanity  occurring  since  the  last  ver- 
dict. Such  a  right  is  inconsistent  with  the  due  administration  of  jus- 
tice. There  must  be  a  sound  discretion  to  be  exercised  by  the  court. 
If  a  case  of  real  doubt  arise  a  just  judge  will  not  fail  to  relieve  his 
own  conscience  by  submitting  the  fact  to  a  jury. 

The  sentence  of  the  Court  of  0\  cr  and  Terminer  is  affirmed,  and  the 
record  is  ordered  to  be  remitted,  for  the  purpose  of  carrying  the  sen- 
tence into  execution  according  to  law. 


EVIDENCE  —  MENTAL  CONDITION  OF  RELATrV'ES. 

IIaqan  V.  State. 

[5  Baxt.  615.] 

In  the  Supreme  Court  of  Tennessee,  December  Term,  187b. 

Hon,  Jamks  W.  Deadkuick,  Chief  Justice. 
"     Pktkr  Tckxkv, 

"        ROIJICHT   McFAltLAXn, 

"     William  Y.  Cooi-kh, 
"     Thomas  J.  Fhek.man, 


Judges 


Evidencoof  Mental  Condition  of  Relatives.— On  the  question  of  the  prisoncr'a  in- 
sanity, it  was  error  to  refuse  to  permit  au  inquiry  into  the  mental  condition  of  any  of 
his  Immediate  relatives. 


HM 


KVIUKNCK   AM)    I'UACTICK. 


Hainan  V,  State. 


AiMM-.Ai.  froiii  the  ('riiniiKil  Court  of  Dtividson  Couuty. 
.  Altuiiu'y-(!('iic'ral  Ileislcell,  for  tlif  State. 

Bale  tt  Widiiiiiis,  for  llie  prisoner. 

Lka,  SptM'ial  Judj^'o,  delivered  tlie:  opinion  of  the  court. 

The  phiiiitiff  in  error  was  indicted  in  the  ("riniiiial  Court  of  Davidson 
County  for  the  nuinhr  of  K.  1\I.  Kichardw,  tlie  seducer  of  his  sister. 
He  was  convicted  of  vohuitury  )nanslau?^;hter  and  sentenced  to  two 
years  in  the  jx-nitentiary,  from  whicli  judj^nient  he  has  appealed  to  this 
court,  and  assigns  several  causes  of  error  for  reversal. 

Upon  the  trial  there  was  an  attempt  to  sliow,  and  there  was  some  evi- 
dence to  show,  the  insanity  of  tlut  plaintiff  in  error  at  the  time  of  the 
killing,  and  Cjipt.  "\Vm.  Stockcll,  a  witness  for  the  i)laiutiff  in  error, 
after  st.ttiiig  tliat  he  was  well  accpiainted  with  the  family  of  the  prisoner, 
was  askeil  to  state  what  he  knew  in  regard  to  the  sanity  or  insanity  of  a 
brother  of  the  prisoner.  To  this  question  the  Attorney-(Jeneral  ob- 
jected, and  the  court  sustained  the  objection.  If  medical  science  has 
determined  any  one  question  more  clearly  than  another,  it  is  that  insan- 
ity is  heri'ditary.  Kay,  in  his  work  on  the  Medical  Jurisprudence  of  In- 
sanity,•  says,  "  that  the  hereditary  character  of  insanity  has  long  since 
passed  into  the  category  of  established  things."  Blanford,  in  bis  treat- 
ise on  Insanity,-  says  *'  the  lirst  tendency  which  demands  your  attention 
is  hereditary  transmission,  for  it  is  of  all  the  most  ])(Hent,  and  ought 
always  to  be  kei)t  in  view  1)V  tiiose  aware  of  its  existence,  whether 
medical  men,  parents,  or  guardians.  Here  is  a  caust;  of  insanity  which 
cannot  be  got  rid  of  —  apart  and  parcel  of  the  individual's  constitu- 
tion and  being." 

If  medical  men,  in  detennini;:g  the  sanity  or  insanity  of  a  party,  in- 
quire minutely  into  the  mei?tal  iOU(.  lion  of  his  immediate  family,  why 
is  it  tliat  a  court,  seeking  after  the  truth  of  the  sanity  »,r  insanity  of  a 
party,  refuses  to  inquiic  after  the  mental  condition  of  his  ancestry  or 
immediate  family.  While  the  science  of  law  is  hoary  with  age,  yet  that 
its  great  object  and  aim,  it  has  never  refused  to  avail  itself  of  all  the 
means  and  aids  which  any  modern  science  has  demonstrated  to  be  avail- 
able in  the  investigation  of  truth. 

The  question  of  the  prisoner's  insanity  being  before  the  court,  it  was 
therefore  error  to  refuse  to  i)ermit  the  inquiry  into  the  mental  condition 
of  any  of  his  immediate  famil}'. 

[Omitting  a  ruling  on  another  question.] 

Reversed. 


1  Sect.  155. 


=  p.  133. 


M'i:(  lAI,    CIlAKdK    AS    TO    HLUDCN    Ol     I'lioor. 


835 


Wfl)l)  (;.  StiUc. 


'  Davidson 

his  sister. 
3(1  to  two 
led  to  tliis 

some  cvi- 
mo  of  tiie 

in  error, 
}  [)risoner, 
iauify  of  a 
Mieral  ob- 
•icnce  has 
Iiiit  insiin- 
'II CO  of  Ill- 
long  since 

his  treat- 
'  attention 
md  ought 
,  whether 
lity  wliich 

constitu- 

party,  in- 
nily,  why 
inity  of  a 
I  CCS try  or 
,  yet  that 
of  all  the 
>  I)e  avail- 

rt,  it  was 
condition 


veraed. 


SI'ECIAJ.  niARcJK  —  KURDKN  DF  PKOOK—  DXT'KRTS  —  NKW  TRIAL. 

Weuh  r.  Statk. 

[H  T.'X.  (App.;  4;)1.J 

In  the  Court  of  Appenh  o/Tpxa.t,  ISSO. 

Hon.  John   I'.  Wiiirr,  I'rfsidiiKj  .ludijc. 
"     V.  M.  \Vi\Ki,i;i:,     , 
"     Jamks  r.  lltui,     )  -^'"'i/f*- 

1.  Insanity -Special  Charjre  as  to  Reasonable  Doubt  not  Reciuired.- Where  tho 

court  in.siructh  the  jury  on  the  g.;neral  l^^u<•  nf  ruiU  llial  tlu-  prii-oiicr  is  i-iititlod  t,.  Hip. 
bo-.rntofanyreas()nnl)lc  di)ul.i,it  is  not  error  t..  refuse  to  <liargo  as  to  rradonuble 
tloubt  specially  with  regard  to  the  issue  of  liis  sanity. 

V!.  Quantumof  Proof.  — The  evidence  of  insanity  to  warrant  an  aciiuittul  Rhoulrt  be  huJII 
ciently  clear  to  convince  the  niinUn  and  coiibcieiiccb  of  the  jury. 

3.  Medical  Experts  who  have  heanl  the  whole  of  tlie  cviilcncc,  or  to  whom  the  whole  of 
the  eviden(M!  has  been  hypothelically  staled,  may  give  an  opinion  as  to  ilio  ^anilvof  the 
prisoner  at  the  time  in  (|ue>tion  ;  but  they  cinnot  piedicate  an  opinion  on  aiiythinu  lesH 
than  the  entire  evidence  whether  actually  oi  hypotlielically  pre-eiued. 

*.  New  Trial -Surprise.-  Thai  iin  export  wJtne<9  by  the  .Icfcnce  ha.  testilled  contrar)- 
to  expectation  is  no  reason  for  a  new  trial  on  the  ground  of  surprise. 

Appeal  from  the  District  Court  of  Fort  Bend. 

Hon.  W.  II.  BicKiiAitT,  presiding. 

The  indictment  charged  llie  api)ellant  with  the  niui'dcr  of  Cliarlca  R. 
Foster,  in  Galveston  Comity  on  Septcmhcr  2,  isTC).  He  wtis  convicted 
of  murder  in  the  second  degree,  and  sentenced  to  forty  years'  imprison- 
ment in  the  penitentiary,  but  the  conviction  was  set  aside  on  appeal.' 
On  the  case  being  remanded  he  wusiigain  piil,  on  tiial.  His  defence  was 
insanity,  to  support  which  .several  witnesses  testiiied.  Verdict,  guilty. 
Appeal. 

Arthur  P.  Bagby,  for  appellant. 

W.  B.  Dunham^  for  the  State. 

WUITK,  1'.  J.  — 

[Omitting  a  point  oi  practice.] 

Two  questions  are  submitted,  by  bills  of  exception,  with  reference  to 
the  expert  testimony  introduced  on  the  trial.  Dr.  Stone,  a  medical  ex- 
pert, who  was  present  and  heard  the  testimony  of  the  other  witnesses, 
was  inlroduced  and  examined  by  defendtiiit  upon  the  subject  of  insan- 
ity, the  principal  defence  relied  on.  On  his  cross-examination  he  was 
asked  by  the  prosecution  :  "From  the  testimony  of  Frank  Pool,  was  the 

1  5  Tex.  (App.)  59G 


i 


83(5 


EVIDENCE    AND    PRACTICE. 


Webl)  r.  State. 


condition  of  defendant's  mind  sucl.  that  lie  could  not  distinguish  right 
from  wrong?  "  to  wliich  he  answered,  over  objection  of  defendant,  "  I 
do  not  think  it  was."  Defendant  asked  that  the  answer  be  withdrawn 
from  the  consideration  of  the  jury,  which  was  also  refused,  tlie  court 
stating  that  "the  defendant  might  ask  Ihe  doctor's  opinion,  based  upon 
the  entire  case  if  ho  saw  fit." 

Mr.  Wharton  in  his  work  on  Criminal  Evidence  states  the  rule  thus: 
"  When  insanity  is  set  up  by  a  defendant  and  denied  by  the  prosecution, 
an  expert  cannot  Le  asked  his  opinion  as  to  the  evidence  in  the  case  as 
rendered,  not  only  because  this  puts  the  expert  in  the  place  of  the  jury, 
in  determining  as  to  the  credibilit}'  of  the  facts  in  evidence,  but  because 
the  assistance  thus  afforded  is  in  most  trials  illusory,  experts  being 
usuall}^  in  conflict,  and  the  duty  devolving  on  the  court  and  jury  of 
supervising  the  reasoning  of  experts  being  one  which  can  rarely  be  es- 
caped. It  has  been  said,  however,  that  when  the  facts  are  undisputed, 
the  opinion  of  an  export  can  be  asked  as  to  the  conc'usions  to  be  drawn 
from  them,  and  <ts  to  the  conchisiunsto  be  clraicn  from  the  testimony  of  a 
particular  witness,  and  it  is  settled,  that  exports  of  all  classes  may  be 
asked  as  to  a  hypothot'  al  case.  But  if  the  facts  on  which  the  bj'poth- 
esis  is  based  fall,  the  .  nswer  falls  also.  Nor  can  an  expert  be  asked  as 
to  an  hypothesis  liaving  no  foundation  in  the  evidence  in  the  case,  or 
resting  in  statements  made  to  him  In'  persons  out  of  court."  ^ 

In  People  v.  Jnurston,  we  find  a  miunber  of  authorities  collated 
and  cited  upon  this  subject,  which  as  there  given  we  reproduce.  It  is 
there  said  :  "  The  general  rule  laid  down  by  Phillips  -  is,  '  The  opinion  of 
medical  men  is  evidence  as  to  the  state  of  a  patient  whom  they  have  seen. 
Even  in  cases  where  they  have  not  seen  the  patient,  but  have  heard  the 
symptoms  and  particulars  of  his  case  described  by  other  witnesses  at 
the  trial,  thoir  opinion  on  the  nature  of  such  symptoms  has  been  prop- 
erly admitted.  Thus  on  a  question  of  insanity  medical  men  have  been 
permitted  to  form  their  judgment  upon  the  representations  which  wit- 
nesses upon  the  trial  have  given  of  the  conduct  manner,  and  general 
appearance  exhibited  by  the  patient.'  Upon  the  discussion  which  took 
place  in  the  English  House  of  J^ords  in  18 1.'^,  in  consequence  of  the  ac- 
quittal of  McXaghtcn  for  the  nuirder  of  Mr.  Drummond,  the  following 
question  amongst  others,  was  propounded  to  the  judges  in  relation  to 
the  defence  of  insanity,  viz. :  Can  a-  medical  man,  conversant  with  the 
disease  of  insanity,  who  never  saw  the  prisoner  previous  to  the  trial,  but 
who  ivas  present  (hirn)ij  (ho  irhole  trial  and  the  examination  of  all  the 


1  Wliar.  (  r.  Kv.,  ^t■(•t.  41S. 


^  1  Ph.  oil  Ev.  290. 


EVIDKXCE    OF   EXPERTS. 


837 


link's  on  tlio  Siil)jcct. 


guish  right 
jndant,  "  I 
withdrawn 
,  tlie  court 
jased  upon 

rule  thus : 
roseeution, 
the  case  as 
'  the  jury, 
at  because 
erts  being 
nd  jury  of 
rely  be  es- 
ndisputcd, 

be  drawn 
imony  of  a 
es  may  be 
le  bypoth- 
j  asked  as 
ic  case,  or 

8  collated 
ice.  It  is 
opinion  of 
have  seen, 
leard  the 
tnesses  at 
icen  prop- 
lave  been 
vhich  wit- 
d  general 
hich  took 
)f  the  ac- 
followiufj 
ilation  to 
;  with  the 
trial,  hut 
of  all  tho 


mtnesses,  be  asked  his  oi.inion  as  to  the  state  of  the  prisoner's  mind  at 
the  conunissiou  of  the  allego<l  offence,  etc.  ?  To  this  question  an  ulllrm- 
ative  answer  was  given. '  Tlie  form  of  the  question  above  given  cle;nly 
mdifates  that  the  medical  witness  must  licar  llie  whole  evidence  in  order 
to  qiudify  him  to  give  an  opinion.  So,  in  Jiex  v.  Searle,''  it  was  hehl  tliat 
a  medical  man  tcho  had  heard  the  trial  may  be  asked  whether  the  facts 
proved  show  symptoms  of  insanity.  Here  again  tlie  medical  witness 
must  have  heard  the  whole  of  the  evidence." 

So  in  ^fcXu(J!Uen\s  Caser^  it  was  held  that  a  medical   m:ui  Hn,  had 
been  present  in  court  and  heard  tlie  eviilence  m:,y  be  asked  whether  the 
farts  stated  huthe  witnesses,  supposing  them  to  he  true,  show  a  state  of 
miiid    incapable    of   distinguishing    between    right    and    wrong.      Here 
again,  it  is  quite  apparent  tliut  the  wilness  heard  the  whole  ol'' the  evi- 
dence tending  to  prove  insanity.     So.   in   Chitty's  Medical  Juiispru- 
dence,-'  the  rule  is  laid  down  thus:   '•  The  opinion  of  medical  witnesses 
who  have  seen  the  alleged  lunatic,   is   unquestionably  admissible,  and 
though  they  have  not  seen  the  lunatic,  yet  their  opinion,  after  hearing  all 
the  evidence,  whether  or  not  a  person  having  so  acted,  and  evinced  such 
delusions,  ought  to  be  deemed  a  lunatic,  it  seems,  is  .admissible."     The 
conclusion  is  thus  summed  up:   "  It  would  seem  to  be  a  just  inference 
from  the  reason  of  the  rule  that  the  medical  witness  should  be  in  pos- 
session of  all  those  facts  tending  to  prove  insanity  before  he  should 
give  an  opinion  negativing  insanity.     His  opinion  on  half  the  facts  of 
the  case  on  which  the  jury  are  to   decide  the  cause  must  be  utterly 
worthless,  for  it  may  well  be  that  the  same  witness,  with  all  the  facts 
before  him,  would  pronounce  a  very  different  opinion."'^ 

In  Lake  v.  People,^  it  is  said :  "Although  the  opinions  of  experts  are 
admissible  evidence,  yet  it  must  be  on  a  given  statement  of  facts  ;  and 
the  facts  on  which  the  opinion  must  be  admitted  must  be  all  the  facts 
relied  upon  to  establish  the  theory  which  it  is  supposed  these  facts  sus- 
tain. Every  witness  would  otherwise  come  to  a  different  conclusion, 
and  the  same  witness,  testifying  on  one-half  the  facts,  might  give  as  his 
opinion  that  they  indicated  sanity,  while  the  other  half  would  satisfy 
him  of  the  prisoner's  madness." 

We  thj  k  the  true  rule  is  as  summed  up  in  Sharswood's  note  1  to  p. 
27,7  of  Russell  on  Crimes :  "As  to  medical  experts,  they  may  state  their 
opinion  upon  the  whole  evidence,  if  they  have  heard  it  all,  or  upon  a 


I  i^  Enp.  Com.  Law,  29. 
s  1  M.  &  n.  75. 

»  10  CI.  &  Fin.  200. 
1  II.  .350. 


135. 


•'  People  V.  Thuriton,  2  Park.   Cr.    134, 


0  1  Park.  Cr.  657. 
•  9th  ed. 


838 


EVIDENCE    AM)    rKACTICE. 


Wel)l)  V.  State 


hypollietit'al  statement  wliicli  is  in  conformity  with  the  wliole  evidence." 
All  authorities  ngree  tiiat  it  is  IniKlniissiMe  to  permit  an  expert  to  give 
his  opinion  u\)()n  aiiytiiing  short  of  the  whole  evidence  in  the  case, 
v.hether  lie  has  personally  heard  it  or  it  is  stated  to  him  hypothctically.' 
'•  The  pro|)er  mode  of  eliciting  this  opinion  is,  in  sul)stanco,  this:  Pre- 
mising that  the  expert  shall  have  attended  the  whole  trial,  and  shall  have 
heard  all  the  testimony  as  to  the  facts  and  circumstances  of  the  case, 
and  that  he  is  not  to  judge  of  the  credit  of  the  witnesses  or  of  the  truth 
of  the  facts  testifli'd  by  others  (which  are  questions  for  the  jury),  the 
proper  question  is  this  :  '  If  the  symi)toms  and  indications  testilied  to  hy 
the  other  witnesses  are  proved,  and  if  the  jury  are  satisfied  of  the  truth 
of  them,  whether  in  his  opinion  the  party  was  insane?  '  "  - 

We  find  Dr.  Stone's  evidence  set  out  in  the  statement  of  facts  as  fol- 
lows: ''  Dr.  Stone,  for  defence  (expert),  t(?stilied  that  he  had  heard  all 
the  testimony  in  the  case,  and  said  that,  not  i)eing  a  juror,  he  asked  the 
court  to  excuse  him  from  rejilyiiig  to  the  question  whether  the  testi- 
mony estahlislied  in  his  mind  the  sanity  or  insanity  of  the  accused  at  the 
time  he  killed  Foster;  and  the  court  excused  him  from  answering. 
That  he  had  heart!  no  evidence  of  the  insanity  of  the  accused  that  could 
not  be  explained  l)y  other  causes,  such  as  indulgence  in  drink  or  de- 
bauchery. Fiom  the  evidence  of  Pool  alone,  he  would  not  have  con- 
sidered Webl)  insane.  lie  lielieved  the  mind  of  Webb,  at  the  time  the 
l^articular  offence  charged  was  connnitted.  to  have  been  more  or  less 
distracted  from  some  cause,  but  not  to  that  extent  as  to  relieve  him  en- 
tirely from  responsil)ility." 

The  witness  hud  heard  all  the  testimont/  in  the  case,  and  did  not  be- 
lieve defendant  insane.  Tiiis  opinion,  founded  upon  the  whole  testi- 
mony, must  have  included,  and  did  include,  the  evidence  of  the  witness 
Pool.  If  it  did,  then  how  could  any  injury  result  to  defendant  by  ask- 
ing—  and  that,  too,  upon  cross-examination  —  the  opinion  of  the  wit- 
ness upon  the  testimony  of  Pool  alone  ?  We  confess  we  cainiot  conceive. 
It  would  have  been  otherwise  if  the  ex|)erthad  not  heard  and  formed  his 
opinion  upon  the  whole  case,  fen'  in  that  case  the  question  and  answer 
would  have  been  not  only  improper,  but  illegal  and  inadmissible. 

One  of  the  ffi'ounds  of  the  motion  for  new  trial  was  that  defendant 
was  misled  and  taken  by  suri)rise  at  the  testimony  of  Dr.  Stone ;  be- 
cause after  all  the  testimony  of  the  witnesses  who  were  examined  was 
heard,    defendant's   counsel   withdrew  with   the    experts,    Dr.    Stone 


I   See  also  lU'ilflold'rf  addition  to  sect  5,  3 
Grucnl.  on  Ev. 


-  So(>  the  editor's  note  to  Bovard  r.  State, 
IMoriiwB*  Or.  Cas.  6;i0,  with  authorities. 


EviDEACi;  or  i:.\1'i:i;ts. 


839 


Uurcloii  of  Proof  — Spi'cial  Instructi 


oil 


evidonoo." 
>ort  to  give 
I  the  c(tse, 
tlictically. ' 
this:  Pre- 
I  shall  have 
the  case, 
f the  truth 
juij),  the 
tilled  toby 
f  the  truth 

.cts  as  fol- 
l  heard  all 

asked  the 
■  the  testi- 
ised  at  the 
.nswering. 
that  could 
Ilk'  or  de- 
have  con- 

tiiue  the 
I'G  or  less 
e  him  cu- 

d  not  be- 
ole  testi-  • 
10  witness 
it  by  ask- 
the  wit- 
coueeive. 
jrnied  his 
ti  answer 
e. 

lefendant 
one ;  be- 
ined  was 
".    Stone 

rd  r.  state, 
sritics. 


amongst  them,  t.;  ascertain  their  views  on  (he  question  (,f   sanity  from 
this  evidence,  and  whether  tlie.e  was  occasion  to  introduce  otiier  evi- 
dence which  they  had  on  the  subject,  and  that  Dr.  Stone,  with  tiie  otli- 
ers,    expressing    himself    satisfied    from    the   evidence   adduced   that 
defendant  was  insane,  tkey  did  not   introduce   such  other  testimony. 
This  ground  of  the  motion  is  supporle.l  by  affidavits.     The  court  did 
not  err  in  overruling  this  ground  of  the  motion.     It  is  not  shown  that 
any  ai)plication  was  made  to  the  court  for  permission  to  intnxluce  these 
witnesses  after  Dr.  Stone   had   t(>stilied,  which  could  and  would  have 
been  permitted  by  the  court  in  case  it  had  been  made  to  appear  that  it 
was  necessary  to  the  due  administration  of  justice,  i     Nor  is  1  he  motion 
.stivngthened  by  the  allegation  that  upon  a  new  trial  the  defendant  will 
be  able  to  procure  other  eminent  scientific  medical  experts   whose  opin- 
ion upon  the  evidence  will  be  different  from  that  of   Dc.  Stone.     Being 
surprised  at  the  testimony  of  his  own  witness,  defendant  should  have  in"^ 
voked  the  aid  of  the  statute,  which   provides  that  "  a  continuance  may 
be  granted  on  the  application  of  the  State  or  defendant  after  the  trial 
has  commenced,  where  it  is  made  to  appear   to  the  satisfaction  of  the 
court  that,  by  some  unexpected  occurrence  since  the  trial  commenced, 
which  no  reasonable  diligence  could  have  anticipated,  the  appellant  is  so 
taken  by  surprise  that  a  fair  trial  cannot  be  had  ;  or  the  trial  may  be 
postponed  to  a  subsequent  day  of  the  term."  -^     -  Surprise  is  not  one  of 
the  grounds  for  a  new  trial  in  felony  cases,  all  of  which  grounds  are 
prescril)ed  by  the  statute."  ^ 

The  most  formidable  question  in  the  case  under  consideration  grows 
out  of  the  refusal  of  the  court  to  give  in  charge  to  the  jurv  a  special  in- 
struction requested  as  follows:  -  That  if  the  jury  entertain  a  reason- 
able doubt  of  tlu!  sanity  of  the  at^aised  at  the  time  he  shot  Charles 
Foster,  they  should  acciuit  him. "  Upon  the  issues  of  sanity  and  insan. 
ity  the  general  charge  given  followed  almost  literally  the  law  enunciated 
in  Webb  V.  Statc,^  and  which  was  but  a  reproduction  of  the  doctrine 
upon  that  subject,  as  declared  in  2  Greenleaf  on  Evidence.-^  After 
making  an  aiipropriate  application  of  these  rules  of  law  to  the  facts,  the 
jury  were  further  charged  :  "  It  is  your  province  to  determine,  from  all 
the  evidence  in  the  case,  whether  the  defendant  was  sane  or  insane. 
Every  defendant  in  a  criminal  case  is  presumed  to  be  innocent  until  hia 
guilt  is  established  by  legal  evidence,  beyond  any  reasonable  doubt, 


1  Code  Cr.  Proc,  Cart.  661. 

»  Id.,  art.  fi68. 

3  /d.,  art.  777;  Walker  t>.  State,  7  Tex. 


(App.)  262;  Iligginbotham  v.  State,  3  Tex. 

(App.)  U". 

*  5  Tex.  (App.)  596. 
''  Sects.  372,  373. 


840 


EVIDENCE    AM)    PUACTICE. 


VVeljb  0.  State. 


and  in  a  case  of  a  reasonable  doubt  as  to  his  guilt  he  is  entitled  to  be 
acquitted.  Therefore,  if  you  have  any  reaso»ial)le  doubt  of  the  guilt  of 
the  defendant,  under  the  evidence  in  the  case  and  the  law  as  herein 
given  you,  you  will  acquit  h'nn."  Here  it  will  be  seen  that  the  court 
had  ciiargcd  the  reasonable  doubt  fully  with  regard  to  the  whole  Cvase 
made  by  the  evidence.  Was  the  defendant  entitled  to,  and  was  it  in- 
cumbent upon  the  court  to  further  charge,  in  addition,  the  reasonable 
doubt,  speciall}'  with  regard  to  the  issue  of  his  sanity? 

In  this  State  this  question  has  never  heretofore,  so  far  as  we  are 
aware,  been  directlv  adjudicated.  ]f  we  look  to  the  English  decisions, 
or  the  decisions  of  Uie  other  State  courts,  we  find  much  contrariety  of 
opinion  upon  the  subject;  some  courts  holding  that  the  burden  of 
proving  his  insanity  rests  upon  the  defendant  who  intei'poses  it,  and  that 
he  is  in  dut}'  bound  to  establish  it  as  an  independent  fact,  beyond  all  rea- 
sonable doubt ;  others  hold  that  the  fact  must  be  established  by  defend- 
ant, but  need  onl}'^  be  shown  by  a  preponderance  of  evidence  as  in  civil 
cases,  sullicient  to  overcome  tlie  presuin[)tion  of  sanity,  and  not  neces- 
saiilytothe  exclusion  of  the  reasonable  doubt ;  whilst  others  again  — 
and  these  may  be  classed  as  of  the  modern,  or  progressive  school  — 
insist  that,  inasmuch  as  the  burden  of  proof  never  shifts  from  the  State 
in  any  criminal  case,  but  rests  upon  her  to  establish  every  element 
necessary  to  constitute  the  crime  alleged,  and  inasmuch  as  the  question 
of  a  defendant's  sanity  enters  into  and  tends  to  controvert  the  most  im- 
portant constituent  of  crime,  to  wit,  the  criminal  intent,  —  that,  there- 
fore the  State  must  afflrmatiA'ely  establish  the  fact  of  sanity  beyond  a 
reasonable  doubt.  Those  curious  to  investigate  these  different  theories 
and  grounds  ui)on  which  they  rest,  will  find  the  authorities  collated  and 
discussed  in  Bovardv.  State,  and  the  editor's  notes  to  the  case,^  and 
in  2  Bishop's  Criminal  Procedure,'  and  Wharton's  Criminal  Evidence.^ 

Our  own  State,  in  the  plentitude  of  her  mercy  and  humanity,  follow- 
ing the  generous  dictates  of  all  human  and  divine  law,  declares  that 
"no  act  done  in  a  state  of  insanity  can  be  punished  as  an  offence,"  "* 
and  in  the  definition  of  murder  provides  that  i^  nust  be  the  act  of  one 
"  of  sound  memory  and  discretion."  These  .vo  principles  are,  how- 
ever, subordinate  to  another,  which  is  a  postula,  3  in  estimating  all  hu- 
man action  from  a  legal  standpoint,  and  that  is  that  every  man  is 
presumed  to  be  sane  until  the  contrary  is  made  to  appear.  This  pre- 
sumption of  sanity  is  one  of  the  maxims  of  the  law.     To  such  an  extent 


1  1  Morris''  Or.  Cas.  818. 

«  (3d.  eti.)  sects.  C6!)  to  673,  inclusive. 


3  (8th  ed.)  sect.  335,  etseq. 
*  Penal  Code,  art.  39. 


Aed  to  be 
le  guilt  of 
as  herein 
the  court 
'hole  case 
was  it  in- 
easonable 


IS  we  are 
lecisions, 
ariety  of 
irden   of 
and  that 
d  all  rea- 
r  defend- 
s  in  civil 
ot  neces- 
again  — 
school  — 
he  State 
element 
question 
Host  im- 
t,  there- 
ejond  a 
theories 
ited  and 
se,i  and 
idence.3 
follow- 
res  that 
ence,"  ^ 
i  of  one 
e,  how- 
all  hu- 
man is 
lis  pre- 
I  extent 


rKESUMPTION    OF   SAXITY 


841 


Burden  of  Proof. 


is  it  indulged,  even  in  cases  of  nuirdor,  that  "the  indictment  makes  no 
mention,  that  the  a(;cused  is  of  sound  mind,  even  when  drawn  on  a 
statute  which  has  the  words  '  of  sound  memory  and  discretion.'  For, 
though  sanity  is  essLMitial  to  crime,  it  is  sufliciently  charged  in  the  al- 
legation of  the  criminal  act,  being  the  j)rima  facie  condition  of  man- 
kind." J  And  so  also  "  the  authorities  agree  and  properly,  that  in  some 
way  the  presumption  of  sanity  attends  the  proven  acts  of  the  prisoner, 
operating  with  sufficient  force  to  create  against  him  'a  prima  facie  case."  '-^ 
Such  a  case  is  more  tiian  a.  prima  facie;  it  is  a  positive  case. 

To  us  it  appears  needless  to  dispute  as  to  how  or  in  what  manner  this 
presimiption  is  to  be  rebutted  and  overcome.  It  is  self-evident  that  if 
no  issue  at  all  of  sanity  is  raised  by  the  evidence  introduced  by  tiie 
State,  nor  by  that  produced  in  behalf  of  the  defendant,  then  the  posi- 
tive case  {prima  facie,  as  it  is  culled  by  Mr.  Bislioi)),  established  by  the 
State,  should  and  will  lightfully  carry  conviction  with  it  by  virtue  of 
the  presumption.  But  if  beyond  this  presumption  of  sanity  — if  be- 
yond the  positive,  not  alone  prima  farie,  case  attending  the  proven  acts 
constituting  the  crime  — it  still  devolves  upon  the  State  to  show  affirm- 
atively the  existence  of  sanity  beyond  a  reasonable  doubt,  then  it  seems 
to  us  that  it  necessarily  follows  that  this  proof  must  be  made  in  all 
cases,  irrespective  of  whether  the  issue  grows  out  of  the  evidence  or 
not,  and  consequently  that  the  virtue  of  the  presumption  becomes  a  de- 
lusion, and  a2iri)nafacie  case  without  this  proof  an  utter  impossibility. 
The  folly  of  such  an  argument  is  its  own  most  appropriate  answer. 

Suppose,  however,  that  the  sanity  of  the  defendant  does  become  a 
question  — whether  from  the  evidence  of  the  State  or  that  adduced  by 
the  defendant  — should  the  State  show  the  sanity  or  the  defendant  the 
insanity  beyond  a  reasonable  doubt?  Admit,  for  the  sake  of  the  ar^ru- 
ment,  that  the  duty  devolves  upon  the  State,  how  is  the  judge  to  charge 
fully  the  law  applicable  to  the  subject?  In  terse,  plain  and  comprehen- 
sive terms  he  could  not,  perhai)s,  better  express  it  tlian  in  the  following 
language,  viz. :  "  The  law  presumes  every  man  to  be  sane  until  his 
sanity  is  established  beyond  a  reasonable  doubt. "  This,  it  may  be  said, 
is  an  absurdity.  Grant  it,  and  yet  the  absurdity  will  rest  where  it  prop- 
erly belongs,  with  those  maintaining  the  proposition  that  the  State  shall 
prove  sanity  beyond  a  reasonable  doubt. 

We  do  not  deem  it  necessary  or  incumbent  upon  us  to  unravel  or  at- 
tempt to  answer  the  misty  mazes  and  the  metaphysical  disquisitions  in- 
dulged  in  by   the  opposing  theorists    about   sanity  being  essential  to 


2  Bish.  Cr.  Pr.  (3(1  ed.),  sect.  (WO. 


Id.,  sect.  072. 


842 


EVIDEXGE   AM)    PRACTICE. 


Webb  V.  Stiito. 


criminal  intent,  and  criminal  intent  being  essential  to  punishable  crime, 
nor  their  equally  abstruse  and  obscure  views  as  to  which  side  has  the 
])urden  of  proof  when  the  sanity  of  the  defendant,  from  whatever 
cause,  ac(iiiires  a  staUn'  in  tiic  case.  The  attempt  would  be  as  useless 
as  profitless  in  our  view  of  the  question.  We  are  free  to  admit  that  the 
defendant  is  not  bound  to  plead  his  insanity  specially,  nor  that  he  may 
not  show  it  under  "  a  plea  of  not  guilty  ;  "  still  this  does  not  settle  it 
that  the  burden  of  proof  is  either  on  the  vState  or  tiie  defendant.  Until 
the  Legislature  definitely  declares  a  rule,  the  question  will  still,  periiaps, 
remain  in  doubt  as  to  where  the  burden  of  proof  rests.  We  think  it 
is  uaiii't'  ,  v  that  we  should  detei'mine  it.  Oftentimes  it  occurs  in 
law,  ..s  '■(.'■'  iry  human  transactions,  that  between  opposing  theoricg 
and  opiAiioiis  iiiere  is  a  middle  ground,  which,  once  attained,  will  lead 
to  safe  and  satisfactory  results.  "  In  medio tutmimus  ibis."  And  so, 
in  our  (>i)ii:i'  in  ■  ,-rd  to  this  question  of  sanity  in  criminal  cases. 
Mr.  Bishop  states  this  middle  ground.  He  says:  " 'I'he  doctrine  of 
principle  sustained  by  a  large  part  of  our  courts,  and  rapidly  becoming 
general,  is  that,  as  the  pleadings  inform  us,  insanity  is  not  an  issue,  by 
itself,  to  be  passed  on  separately  from  the  other  issues  ;  but,  like  any 
other  matter  in  rebuttal,  it  is  involved  in  the  plea  of  not  guilty,  upon 
which  the  burden  of  proof  is  on  the  prosecuting  power,  the  jury  to  con- 
vict or  not,  according  as,  on  the  whole  showing,  they  are  satisfied  or 
not,  beyond  a  reasonable  doubt,  of  tiie  defendant's  guilt."  ^  And  Mr- 
Wharton  says:  "At  the  same  time,  if  the  defence  goes  to  negative 
malice,  and  malice  is  an  essential  [)art  of  the  case  of  the  prosecution, 
then,  if  on  the  whole  evidence,  there  be  a  reasonable  doubt  as  to  mal- 
ice, there  should  be  an  acquittal."  ~ 

It  is  a  noticeable  fact  that  those  who  insist  that  the  doctrine  of  rea- 
sonable doubt  applies  to  the  (juestion  of  sanity,  because  insanity  is  an 
attack  u[)on  the  integrity  of  the  criminal  intent  which  the  State  is  always 
bound  to  show  aflirmatively  are  also  forced  into  the  position  that  it  is 
not  a  distinct  substantive  issue  upon  which  the  defendant  has  the  bur- 
den of  proof.  In  other  words,  they  claim  that  it  is  a  i)art  and  parcel  of 
the  whole  case  made  by  the  State  ;  one  which  she  is  bound  to  establish 
bej'^ond  a  reasonable  doubt,  and  one  which,  when  she  has  established  it 
on  the  whole  case  be3-ond  a  reasonable  doubt,  is  not  sufficient,  because 
she  has  not  established  it  beyond  a  rejisonable  doubt  when  applied  to 
the  question  of  sanity  separately  and  alone.  The  inconsistency  is  in 
giving  to  a  part  a  prominence  sufficient  to  defeat  the  whole  of  which  it 


I 


1  2Bi3h.  Cr.  Pr.,8ect.  «73 


«  Whart.  Cr.  Ev.,  sect.  335. 


BURDKX    OF   PKOOF. 


84.1 


Kiilo  ill  Tl'x.is. 


ible  crime, 
ide  has  tlio 
1  whatever 

as  useless 
tit  that  tlic 
lat  he  may 
-t  settle  it 
lit.  Until 
I,  perhaps, 
Te  think  it 

occurs  ill 
g  theories 

will  lead 

And  so, 

lal  cases. 

octrine  of 

becoming 

issue,  by 

like  any 
It}-,  upon 
■y  to  con- 
tisfied  or 
And  ]\rr- 

negative 
sccution, 
i  to  mal- 

of  rea- 
ty  is  an 
s  always 
hat  it  is 
the  bur- 
)arcel  of 
istablish 
lished  it 
because 
plied  to 
3y  is  in 
vhich  it 


is  but  a  part,  and  in  insisting  that  a  part  siiall  control  the  whole  instead 
of  being  only  considered  with  and  iiu'liided  in  it.  It  will  not  do  to  say 
that  the  reasonable  doubt,  iiideiiendi-nt  of  the  whole  case,  applies  and 
must  be  given  to  each  and  every  eU'i.ient  going  to  inakf  up  {ha  corpus  of 
the  crime,  and  failing  to  do  so  that  the  charge  would  be  insullicient ; 
because  such  a  rule  wouUlload  to  iiniK'ccssaiy  and  perhaps  interminable 
confusion,  and  in  a  case  of  circumstantiul  evidence,  for  instance,  it  would 
be  necessary  to  charge  it  with  reference  to  each  isolated  fact  in  a  chain 
of  facts  essential  to  the  existence  of  the  main  fact.  No  one,  we  su[)- 
pose,  will  contend  that  this  is  requisite.  Speaking  of  the  defence  of 
au  alibi  in  the  case  of  Walker  y.  State,  Chief  Justice  Robkuts  says: 
"  It  is  not  a  defence  at  all  in  any  other  sense  than  as  rebutting  evidence 
tending  to  disprove  the  fact  alleged  in  the  indictment,  that  Walker 
killed  Butler,  the  burden  of  proving  which  allegation  rests  on  tiie  Stale 
throughout  the  whole  trial."  And  again:  -The  rule  of  law  is  that 
such  evidence  of  an  ulihi  should  only  be  of  such,  weight  as  to  produce 
upon  the  minds  of  the  jury  a  reasoiuilile  doubt  of  the  fact  allirmed  liv 
the  State,  that  Walker  was  the  man  who  shot  Butler."  ^  In  the  case  at 
bar,  the  evidence  of  insanity  was  no  defence,  save  as  it  tended  to  rebut 
or  destroy  the  criminal  intent  with  which  Webb  shot  and  killed  Foster, 
audit  should  only  be  given  such  weight  as  would  produce  upon  the 
minds  of  the  jury  a  reasonable  doubt,  not  of  Webb's  sanity,  but  of  the 
fact  aflirmed  by  the  State,  which  was  that  Welib  killed  Foster  with 
criminal  intent,  and  under  circumstances  constituting  the  crime  mur- 
der. 

Ill  a  general  view  of  the  case,  we  think  that,  no  matter  upon  whom 
the  burden  rests  or  how  the  proof  is  adduced,  the  evidence  of  insanity, 
to  warrant  an  acquittal,  should  be  sulliciently  clear  to  convince  the 
minds  and  consciences  of  the  jury;  because  the  law  requires  that, 
''  when  the  defendant  is  acquitted  upon  the  ground  of  insanity,  the  jury 
shall  so  state  in  their  verdict."  - 

Our  conclusion  of  the  whole  matter  is  that  the  charge  of  the  court 
was  a  sulflcient  exposition  of  the  law  of  insanity,  and  that,  having  fully 
charged  the  law  of  reasonable  doubt,  as  to  the  whole  case,  the  court  did 
not  err  in  refusing  the  special  requested  instruction. 

We  have  been  unable  to  see  any  error  in  the  proceedings  had  on  the 
trial  which  requires  a  reversal  of  the  case,  and  the  judgment  is  therefore 
affirmed. 

Affirmed. 


t  42  Tex.  360. 


«  Code  Cr.  Pr.  Art.  722. 


i<44 


KVIDKNCK    AND    I'lIACTICE. 


Webb  V.  State. 


IlruT,  J.,  dissents  upon  the  proposition  that  no  error  was  committed 
ill  refusing  the  special  instruction,  and  refers  to  his  view  in  the  case  of 
Kin'j  V.  State,   decided  at  the  jircsent  term,  post.^ 


I  At  llic  same  term  with  JFebb  v.  State, 
tlio  CiiM!  (if  King  V.  Slate,  '.i 'ri'X.  (Al'|i.  TilS 
(1880),  was  coiisiilcrt'il.  lu  King  v.  State  I  lit; 
prisoner  was  iiidicU'U  for  fchooting  il.  W. 
Harrington,  on  >!ari'h22,  Is^'^O.  The  defence 
was  insanity,  lint  he  wasi'onvicteil  of  nmrder 
in  tlic  lirst  de(;ree  and  sentenced  to  death, 
-'riie  cliarge  of  the  court  presented  tlielaw  of 
insanity  as  fdllows:  "  Y<iu  have  seen  from 
the  dcllnlticin  of  murder,  in  a  former  part  of 
this  charge,  that  one  of  the  ingredients  of 
this  crime  is  that  the  person  guilty  of  the 
homicide  must  ho  of  '  sound  mind  and  dis- 
cretion.' Tlio  law  is  that  no  act  done  in  a 
state  of  insanity  can  he  imnished  as  an  of- 
fence. On  tlio  trial  of  every  eriminal  action, 
when  the  facts  have  been  jiroved  which  eon- 
stituto  the  olfence,  it  devolves  upon  the 
defendant  to  establish  the  facts  or  circum- 
stances on  which  he  relies  to  excuse  or 
justify  the  act  charged  against  him.  Kvery 
lierson  charged  with  crime  is  presumed  to 
be  sane  —  that  is,  of  sound  memory  and  dis- 
cretion. If,  under  the  law  of  this  charge  and 
the  testimony  of  the  witnesses,  the  guilt  of 
the  defendant  has  been  established  beyond 
;i  reasonable  doubt,  it  devolves  on  the  de- 
fendant to  establish  Iiis  sanity  at  the  time  of 
committing  the  act,  in  order  to  excuse  him- 
self from  legal  responsibility. 

"  That  is  to  say,  the  burden  of  proof  to  es- 
tablish his  plea  of  insanity  devolves  upon 
the  defendant,  us  every  iiersoii  is  presumed 
to  be  of  sound  mind  untd  the  contrary  is 
shown  by  proof.  If  the  State  has,  as  before 
explained,  proved  the  facts  which  constitute 
the  olfence  charged  in  the  bill  of  indict- 
ment, your  next  inquiry  will  be,  has  the 
defendant  established  by  proof  his  plea  of 
insanity,  or  has  it  been  established  by  proof 
from  any  source?  If  he  has,  the  law  excuses 
him  from  criminal  liability,  and  you  should 
acquit  him.  The  question  of  insanity  of  the 
defendant  has  exclusive  reference  to  the  act 
with  whicli  he  is  charged,  and  the  time  of 
the  commission  of  the  same.  If  he  was  sane 
at  the  time  of  the  commission  of  the  crime, 
he  is  amenable  to  the  law.  As  to  liis  mental 
condition,  with  reference  at  the  time  to  the 
crime  charged,  it  is  peculiarly  a  (juestion  of 
fact,  to  be  decided  by  you,  from  all  the  evi- 
dence in  the  case,  before  the  act,  at  the 
time,  and  after.    A  learned  judge  has  laid 


ilown  a  rule  which  I  give  you  in  charge; 
that  is,  he  says:  '  A  safe  and  reasonable  test 
ill  all  cases  would  he,  tliat  whenever  il 
should  appear,  from  all  the  evidence,  that  at 
the  time  of  doing  the  act  the  prisoner  was 
not  (if  sound  mind,  but  allVcted  with  insan 
ity,  and  such  allection  was  the  elUcicnl 
cause  (if  the  act,  and  that  he  would  not  have 
done  the  act  but  for  that  allection,  he  ought 
to  be  ac(|uitte(l.'  For,  in  such  a  case,  reason 
Wduld  be  at  the  time  dethroned,  and  the 
power  to  exercise  judjrmcnt  would  be  want- 
ing'. I'.ut  this  unsoundness  of  mind  or  af- 
fection of  insanity  must  be  of  such  a  degree 
as  to  create  an  uncoutroUabb^  impulse  to  do 
the  act  charged,  by  overriding  the  reason 
and  judgmeiit  and  obliterating  the  sense  of 
right  and  wrong,  and  depriving  the  accused 
of  the  power  of  chuosing  between  right  and 
wrong  as  to  the  particular  act  done. 
Whether  tlie  insanity  be  general  or  partial, 
whether  continuous  or  periodical,  the  de- 
gree of  it  must  have  been  sufHciently  great 
as  lo  have  controlled  the  will  of  the  accused 
and  to  have  taken  from  him  the  frecdoni  of 
moral  action.  When  reason  ceases  to  have 
dominion  over  a  mind  proven  to  be  diseased, 
it  then  reaches  the  degree  of  insanity  where 
criminal  responsibility  ceases,  and  account- 
ability to  the  law,  for  the  purpose  of  punish- 
ment, no  longer  exi.sts.  Whether  that  degree 
of  insanity  existed  at  the  time  of  the  alleged 
homicide,  with  the  defendant,  is  the  impor- 
tant (question  on  this  issue  for  your  consider- 
ation and  decision  ;  it  being  purely  a  question 
of  fact,  to  be  determined  by  you  from  the 
testimonf.  If  it  was  true  that  the  defend- 
ant took  the  life  of  the  deceased,  and  at  the 
time  the  mental  and  physical  machine  had 
slipped  the  control  of  the  defendant,  or  if 
some  controlling  mental  or  physical  disease 
was  in  truth  the  acting  power  within  him, 
which  he  could  not  resist,  and  he  was  im- 
pelled without  intent,  reason  or  purpose,  he 
would  not  be  accountable  to  the  law.  If,  on 
the  other  hand,  he  was  of  sound  mind,  capa- 
ble of  reasoning  and  knowing  the  act  he  was 
committing  to  be  unlawful  and  wrong,  and 
knowing  the  consequences  of  the  act,  and 
had  the  mental  power  to  resist  and  refrain 
from  evil,  his  pleas  of  insanity  would  not 
avail  him  as  a  defence.  You  will  remember, 
in  the  definition  of  murder  in  the  first  part 


: 


SPECIAL    CHAHCJK    MIST    BE   GIVEN. 


845 


Krwiii  V.  KtatP, 


K)mmittc(l 
be  case  of 


»  in  charge; 
isdiiablc  test 
vvhciiuvcr  it 
I'lx'f,  Hiatal 
•  lisiinur  was 
with  iiisiin 
Iio   ollicicnt 
I'll  not  liave 
n.  lie  ought 
"a.sL',  reason 
eil,  and  the 
1(1  Ijo  want- 
iiiiiil  (If  af- 
<;li  a  degree 
i|iiilse  to  do 
tlie  leasoii 
10  sense  of 
lie  accused 
n  right  and 
itet    done. 
I  or  partial, 
;il,  the  de- 
eiilly  great 
lie  accused 
'recdoni  of 
>e8  to  have 
e  diseased, 
nity  wliere 
I  a(!count- 
of  jjunish- 
hat  degree 
he  alleged 
he  inipor- 
consider- 
a  question 
from  the 
o  defend - 
and  at  the 
chine  had 
ant,  or  if 
al  disease 
thin  him, 
3  was  im- 
irpose,  he 
w.    It,  on 
nd,capa- 
ct  he  was 
•ong,  and 
act,  and 
d  refrain 
ould  not 
member, 
irst  part 


CHARGE  MUST  BE  SPECIALLY  DIKKCTEI)  TO    DEFENCE  MADE— DE- 

LIUIL'M  TREMENS  —TEST. 

Eravin  V.  State. 

[10  Tex.  (A|)|).)  7(10]. 
In  the  Court  of  Appeals  af  Texas,  ISSl. 

lion.  John  P.  AViim;,  Chief  Justice. 
"     C.  M.  WiNKi.r.K    )  r   J 
"    .Jamks  M.  lliinj 

1.  Delirium  Tremens  is  a  species  of  in.sanity. 

2.  Delirium  Tremens  is  usually  the  result  of  a  disuse  of  intoxicants  by  an  habitual  drunl:- 

ard,  bill  it  may  ensue  from  casual  drunkenness. 

3.  Court  Should  Chargre  Specially  as  to  this  Defence.  — The  defence  being  delir 

ium  tremens,  and  there  being  evidence  lending  lo  establish  it,  the  court  should  cliarj;e 
specially  the  principles  of  law  applicable  to  this  defence. 

4.  Particular  Bi^ht  and  Wrong  Test. —  A  charge  which  makes  the  test  of  insanity 

depend  upon  whelliei-  the  prisoner  knew  right  from  wrong  generally  instead  of  wiili 
respect  to  the  act  for  which  he  is  indicted,  is  erroneous. 

T).  SlightEvidence.  — However  slightly  the  evidence  may  tend  to  establish  a  defence,  the 
court  should  charge  the  law  applicable  to  that  defence. 


Ari'EAi.  from  the  District  Court  of  Tarrant  .County. 
Hon.  A.  J.  IIooD. 


Tried  bciore 


of  this  charge,  ills  niailean  e.-sential  ingre- 
dient of  murder  that  the  person,  to  be  guilty 
of  that  crime,  must  be  one  of  '  sound  mind 
and  discretion ;'  the  meaning  of  which  is, 
that  he  must  have  capacity  and  reason  suf- 
ficient to  enable  him  to  distinguish  between 
right  and  wrong  as  to  the  particular  act  he 
is  then  doing.  Although  a  man  may  be  labor- 
ing under  partial  insanity,  if  he  still  under- 
stands the  nature  and  character  of  his  act 
and  its  consequences ;  if  he  has  a  knowledge 
that  it  is  wrong  and  crimin.vl,  and  mind  suf- 
ficient to  apply  that  knowledge  to  his  own 
case,  and  to  know  that  if  he  docs  the  act  he 
wni  do  wrong  and  receive  punishment,  such 
partial  insanity  is  not  sufHcient  to  exempt 
him  from  responsibility  for  his  criminal 
acts.  But  if  the  mind  was  in  a  diseased  ;tnd 
unsound  state  to  such  a  high  degree  thai  for 
the  time  being  it  overwhelmed  the  reason, 
conscience  and  judgment,  and  the  defend- 
ant, in  committing  the  homicide,  acted  from 
an  irresistible  and  uncontrollabh^  impulse, 
then  it  would  be  the  act  of  the  body,  without 
the  concurrenceof  the  miiKl.    In  such  a  case 


there  would  be  wanting  the  necessary  in- 
gredient of  every  crime  — the  intent  and 
purpose  to  commit  it.  As  before  stated, 
every  person  charged  with  crime  is  pre- 
sumed to  be  sane,  and  the  burden  of  proof, 
to  establish  the  defence  of  insanity,  de- 
volveson  the  defendant.  It  is  not  necessary 
that  the  insanity  of  the  defendant  should  be 
established  beyond  a  reasonable  doubt ;  it 
is  sutllcient  if  it  be  established  to  your  sat- 
isfaction, by  the  weight  or  prepondei-ance  of 
evidence,  — such  and  so  much  proof  as 
reasonably  satisfies  you  of  the  existence  of 
insanity  at  the  time.  To  ascertain  the  con 
dition  of  the  defendant's  mind  at  the  time  of 
the  killing,  you  should  look  to  the  condilion 
of  his  mind  before  that  time  —  his  conduct, 
acts  and  all  the  surroundings  —  ascertain,  if 
(los.sible,  whether  his  mental  condilion  was 
such  as  to  enable  liiiii  lo  know  he  was  doing 
a  wrongful  ,'ind  unlawful  act.  Look  to  his 
acts,  conduct,  and  movements  on  the  day, 
before,  and  on  the  occasion  of  thekdling; 
his  conduct,  acts  and  movements  after  the 
killing,  and  all  other  facts  in  the  case,  to 


840 


EVn)KN(  K    AM)    ritACTK  i;. 


Envin  V.  State. 


The  iii(Hc'tmoiit  cliarirod  tlic  appellant  with  an  assault  with  intent  to 
kill  and  niiii'iU'r  W.  T.  Whitlow,  in  Tarrant  County,  'IVxas,  on  the  llrsi 
(lay  of  Noveiuher,  1H8().     His   trial   resnlted   in   his   conviction  of  the 


rrncli  ii  correci  niiiclusioii  ns  lo  wlicllior  llio 
(li'fciiil.'int  wa.- (if  (•(iiiiiil  iiiiiiil  <prMc)l." 

'I'lic  iirisdiicrapiit'iiN'il.  IIri;r,  .l.,il('livero(l 
ii  li'iij?lliy  uiiiiiion.whicli  iiK'ludcs  llio  vi'asDiis 
for  lii.s  (lisseni  in  Ifcib  v.  Stute.  'J'hi-  dllicr 
juiljfi'x  coiicurrcil  in  iim  i-r^iiij;  IIil- (•u>'c,  hut 
ri.'fiised  to  give  tlit'ir  assent  lo  ilic  vluw-^  of 
Ilt'KT,  .1.  on  tlio  quiistion  of  insanity,  adlicr- 
ing  lo  llioir  cipiniipn  as  I'xpi'LSScd  in  tribhw 
State.   Jlijiir,  J. '>,  opinion  was  as  follows:  — 

Disaentinpr  Opinion  of  Hurt,  J., 
in  King  v.  State.  —  lluur,  .J.  — Tlic  ap 
pi'llant  WHS  I'onvicU'il  of  unirdur  in  tlio 
lli'st  ilugrco,  Willi  llie  dealli  pi.'iialty  alllxfil 
as  Uic  iiunisliinent.  Tlie  rucofd  prosLMits 
llivcf  (lueslioiis  for  our  solution  :  — 

1.  Wliuii  tlu!  plea  of  insanity  is  interpostMl, 

is  the  Ijiirdeii  of  pi f  on  lliu  State  |(j  show 

sanity,  or  is  it  on  tliu  defendant  to  prove  in- 
sanity? 

2.  If  the  jury  have  a  roneonable  doubt  of 
the  sanity  of  the  defendant,  sin  uld  they  ac- 
liuit  or  convict,  sanity  beintf  the  only  (juus- 
tion  in  the  case? 

o.  Can  the  proof  be  so  [ilenary  on  one  side 
JIB  to  justify  the  court  below  in  the  rejection 
of  legiliiiiale  and  proper  testimony  in  behalf 
of  the  other  side? 

First  proposition:  Wlienthe  pleaofinsan- 
ity  is  interposed,  is  the  burden  of  proof  on 
the  State  lo  show  sanity,  or  is  it  on  the  de- 
fendant to  jirove  insanity?  Ilrush  from  this 
(jueslion  the  dust  from  ancient  days,  separ- 
ate it  from  its  old  eoiiipanions,  and  its  scilu- 
tion  is  perfectly  simple.  Hefore  entering 
upon  an  analysis  of  this  subject,  pennil  us 
to  allude  to  some  very  strange  and  inconsist- 
ent expressions  used  by  the  learned  judges 
in  treating  of  lliia  (;ueslioii.  The  following 
are  of  the  luiinber  alluded  to:  "  As  insaniti/ 
crcusen  the  coinmissioii  o/criiite,  on  the  ground 
that  the  actor  is  not  a  responsible  being," 
etc.  "Theo««.s  of  proving  the  defence  of 
insanity,  or,  in  the  case  of  lunacy,  of  show- 
ing that  the  offence  was  comiuitled  when  the 
])risoner  was  in  n  slate  of  Itinacy,  lies 
upon  the  prisoner."  "  It  is  rather  in  the 
nature  of  a  plea  to  the  jurisdiction,  or  a  mo- 
tion to  change  the  venue.  The  defendant, 
through  his  counsel  and  friends,  comes  in 
and  says  that  he  is  not  amenable  to  jieiial 
jurisdiction."    A  very  respectable   volume 


could  be  made  of  such  remarks,  but  those 
cited  «  ill  siillice  for  our  purpose!. 

Let  Us  lake  a  steady  look  for  n  moment  ill 
these  propositions.  For  exanipb',  take  Ibi' 
first.  What  HHiie  mind  can  comprehend  the 
possibility  of  a  vrime  being  conimiUed  by  an 
insane  person?  If  the  prisoner  in  insane, 
there  is  no  crime.  If  there  lie  crime,  tlicii' 
is  no  in.<i(init!/.  Insanity  cannot  civ  ««■  crime, 
from  the  f;i<'l  that,  if  in.iaue,  there  i.i  no  irinn- 
to  be  e.C(ii.-!e<l.  These  observations  apply  to 
the  second.  Now  to  the  third ;  "  I'lea  in  the 
nature  of  ii  plea  to  the  jurisdiction."  This 
plea  never  draws  In  issue  the  (/uilt  of  the 
prisoner.  I'lider  this  plea,  sanity  or  insan- 
ity irmdil  be  tlu;  issue,  separate  and  inde- 
pendent from  IIh!  (|uestlon  of  guill,  lo  be 
deteriuineil.  IJiit  the  court  has  juri.-idirtidii 
of  the  crime,  if  any  has  beitii  committed  ;  and 
how  iire  we  lo  sever  the  one  from  the  other? 
Shall  we  tirst  try  the  question  of  sanity  and 
then  that  of  guilt?  Not  so,  for  on  the  thresh- 
old we  are  met  with  the  fact  that  under  llie 
plea  of  not  guilty,  evidence  on  the  iiuestiou 
of  sanity  can  be  introduced.  lieliold  what 
darkness  and  confusion  surround  the  (jues- 
lion  of  sanity  — a  subject  arinuid  which 
gather  more  vagaries  and  inconsistencies 
than  infest  any  other  question  in  the  whole 
range  of  criminal  juriiiirudence. 

Jiut  what  sliall  bu  said  upon  the  proposi- 
tion tliat  the  plea  is  "  in  the  nature  of  a  mo- 
tion to  change  the  venue?"  if  there  is  the 
faintest,  the  most  remote,  analogy  existing 
between  the  i)lea  and  a  motion  to  change 
the  venue  of  a  case,  we  frankly  confess  our 
Inability  to  trace  it.  We  had  thought  the 
object  of  a  motion  lo  chiinge  the  venue  was 
to  remove  a  cause  from  the  (bounty  in  which 
the  indictment  was  found  to  some  other  one 
for  trial,  and  that  the  ground  for  removal 
was  based  upon  the  fact  that  an  impartial 
trial  could  not  be  had  in  the  prober 
(;ounty  —  lh:it  in  which  the  indictment  vviis 
found.  To  what  court  or  county  shall  it  be 
taken?  Will  not  the  same  reasons  for  the 
change  be  found  in  the  court  or  county  to 
which  it  is  transferred?  Most  inuiuestion- 
ably  they  will.  These  conclusions  being 
true,  the  case  could  only  find  a  court  of  last 
resort  in  the  tribunal  of  heaven.  This  would 
defeat  the  ends  of  human  justice,  since  the 


5 

i 


I'.i  i;i)i:.\  (»r  ritooi'. 


S17 


Dlssi'iitiii^j;  ()|iliil()ii  t)t   Hurt,, I. 


I  intPiit  l(^ 

II  the  liisi 
an  of  till' 

>,    llUl     Itldbf 

I  IIKIIllOnt  Ml 
IC,  lMk(!  III!' 
l)l'l'llL'II(l    till' 

Hilled  hy  iiii 
r  irt  insMiic, 
crime,  llui  f 
'xi  use  criiiiu, 
c  ix  1IO  rriiw 
lis  apply  til 
'I'lcii  ill  till, 
lion."  This 
(/Uilt  of  tile 

y  iir  iii<iii.- 
Ic  ami  indi' 
Kuill,  to  III' 
;juiis()ictiiin 
luiltuil ;  iiinl 
I  the  other? 
'  sanity  ami 
the  tlii-eisli- 
it  umler  tlie 
lie  (iiiestiou 
I'liolil  wlial 
il  the  (lues- 
und  which 
nsi.-itencie> 
1  the  whole 

proposi- 

e  (if  a  inii 

ere  is  the 

;y  existing 

to  (!liangc 

onfi'ss  our 

oii^lit  tlie 

venue  was 

y  in  which 

other  one 

r  lenioval 

iiniiurlial 

e    profier 

nient  wfis 

-hall  it  be 

IS  for  the 

county  to 

Hiiieslion- 

)n.s   beiiijr 

nit  of  last 

his  would 

since  the 


offoiici!  rlKifo;t'(l  iif^aiiist  him.  tiiid  two  yours  in  the   penitentiary  was  tiie 
punisliiuent  a\vai'(k'(l  him. 

The  siibstiiiiee  of  tin;  evidenee  for  the  prosocntion  was  thtit,  on  the 
morninfj;    of  November    1st,    18n(),   at    al)out   half-piist   seven    o'clock. 


primal  iilca  upon  which  il  is  based  onrriea 
with  il  llie  fuitlier  ideii  of  Ituman  e.ciiintioH 
for liiiiniiii  urong. 

These  .-traiigo  and  incoiu'-'cnt  expros- 
^ions,  which  we  Had  in  the  wiitiipjs  of  eini- 
ncnt  text  nulliors,  are  tho  lei,'itiinalu 
ullspriiifj  of  fundamental  error  which  under- 
lies their  treatineiil  of  this  entire  Bubji'ct, 
and  we  merely  iilliide  to  them  hero  to  in- 
tensify and  c<incentrate  attention  up<iii  this 
parent  error,  from  whose  fruitful  loins  have 
spriiiii;  all  of  these  ill-considered  stuleiiu^nta 
upon  this  i|uesiiou  of  sanity.  In  jurispru- 
dence nothing  can  be  more  valuable  than 
these  statements  of  principle.  On  the  olher 
liand,  liastily  conceived  and  unhappily 
w<irdcd  enunciations  not  infrecjucntly  o|)eii 
the  Hood  gales  of  liligalion,  with  its  vast  at- 
tendant expeiiso,  and  lead  to  judicial  mur- 
der under  all  the  forms  and  solemuitiea  of 
the  law. 

Tliefallacy  of  this  fundamental  error  can 
b«!  inadu  more  fully  to  appear  by  comparing 
two  iiropositions:  — 

1.  SanUy  is  an  inherent ,  intrinsic  element  oj 
crime. 

'1.  Sanity  is  not  an  inherent  and  intrinsic 
clement,  but  is  extrinsic  and  independent  of 
tho  crime. 

The  last  proposition  contains  a  monstrous 
fallacy,  the  fruits  of  which  are  visible  in  so 
many  of  tlie  text -books,  and  which  are  fol- 
lowed out  ill  many  of  the  enunciatioiis  in 
the  adjiiilicatcd  cases.  11  sanity  is  an  inhvr- 
e«< clement  of  crime,  no  well-ordered  mind 
can  stop  short  of  the  conclusion  that  the 
State  must  carry  its  burden  and  prove  il. 
Keeling  the  force  of  this,  writers  have  treated 
it  as  au  extrinsic  matter,  separate  and  dis- 
tinct from  the  question  i)f  guilt,  and  hence 
those  strange  and  incomprehensible  ex- 
pressions above  referred  to. 

Let  us  pay  our  respects  to  thia  last  propo- 
sition, and  see  if  from  a  bare  touch  it  will 
not  cnjmble  to  dust.  "  Sanity  is  extrinsic." 
Therefore  the  prisoner  is  to  be  tried  for  the 
act,  and  the  question  of  intent  or  malice  is 
not  drawn  in  issue.  This  for  the  Bini|ile 
reason  that  an  issue  formed  upon  the  (jiies- 
tion  of  intent  or  malice  irresistibly  includes 
that  of  sanity:  fuviliere  can  be  no  intent  or 
malice  without  sanity.    Therefore  it  follows, 


from  this  erroneous  position,  that  the  jury, 
in  viewing  the  act  soiiglil  to  he  punished, 
must  strip  it  iif  the  intent  which  promptcil 
it,  and  look  alone  to  the  act.  To  this  we 
enter  our  solemn  |irolcst. 

We  now  invite  attenti<iii  to  what  wo  believe 
to  be  the  true  position,  which  is  that  sanity 
is  an  in'icrent,  inlriimic  and  necesfary  clement 
of  crime.  Is  this  a  correct  propohilion'f'  Is 
it  not  a  self-evident  iiroposition?  If  murder 
can  be  committed  wilhout  intent  or  malice, 
then  tho  jiroposition  is  false;  if  not,  it  is 
true.  I!ut  wo  do  know,  if  it  be  iiossililo  to 
know  anything,  that,  to  (sonstitule  murder, 
the  act  tif  killing  must  be  attended,  not  only 
with  the  tH/p«^  to  kill,  but  with  w«/((r/  and 
we  also  know,  with  the  same  degree  of  cer- 
tainly, that  there  can  be  no  intent  or  inali<'e 
without  s«hj7//.  It  therefore  follows,  bi'yoiid 
any  shadow  of  doubt,  that  sanity  is  an  iri- 
lierenl,  intrinsic  and  necessary  ingredient 
of  crime. 

We  now  return  to  the  first  proposition 
stated  at  the  beginning  of  this  opinion, 
which  is  as  follows:  "  When  the  plea  of  in- 
sanity is  interposed,  is  tlie  burden  of  proof 
on  the  State  to  show  sanity,  or  is  it  on  the 
defendant  to  prove  insanity ':•"  We  have 
thus  stated  the  proposition  because  we  lind 
it  so  slated  in  the  books,  but  it  is  not  a  prac- 
tical one.  There  is  no  such  plea  known  to 
our  Code  as  applicable  toatri:ilof  a  crimi- 
nal cause.  We  have  four  jileas  —  two  special, 
and  the  pleas  of  "guilty"  ai.d  "not 
guilty"  — and  this  pic  i  of  "not  guilty"  is 
a  denial  of  every  mat-:  ;.l  allegation  in  tho 
indiclmont.  L'nder  r  ii.ueiice  to  establish 
llie  insanity  of  the  defendant,  and  every  fad 
whati.'ver  tending  to  aci|uit  him,  may  be  in- 
troduced. It  follows  that  under  this  plea 
tlio  defendant  denies  every  constituent 
element  of  the  oflence  charged,  and  this 
plea  of  "  not  guilty  "  is  the  same  as  if  the 
defendant  had  denied  siieciUcally  each  ele- 
ment of  the  crime,  charged. 

Tills  leads  us  to  the  consideration  of  the 
charge  in  this  case,  which  is  niurder,  and  is 
dcliiied  thus:  "  Kvery  iierson  with  a  sound 
memory  and  discretion  who  shall  unlaw 
fully  kill  any  rcasonalile  creature  in  being, 
within  this  state,  with  malice  aforethought, 
eillier  express  or  implied,  shall  be  deemed 


848 


EVIDENCE    AND    I'UAt'TlCE 


Krwln  r.  State, 


Wliitlow,  the  injuivd  inaii,  \v;is  standing  in  the  <loor  of  a  saloon,  in 
which  he  was  employed,  in  Fort  Wortii,  when  ho  was  approached  by  the 
appellant,  wiio  asked  him  for  a  drink  of  whisjvey.  Whithjw  refnsed 
him  tlie  whiskt-y,  telling  him  that  he  had  drunk  enougii.     Continuing 


guilty  of  murder."  From  this  Uellnlliou  it 
follows  that,  to  coliKtiluto  the  oll'oiic.e,  thu 
shiyur  muHt  bo  "of  houihI  iniml  and  discru- 
tion;"  a  "  ruu^onublo  creature"  must  he 
chiiii,  and  the  slayer  must  ho  uctuiitfd  by 
"malice."  Wo  liavo  then,  llrst,  "sound 
memory"  in  tlie  slayer;  second,  a  "  reason- 
able creature"  nlain;  and  the  slayer 
lirompled  by  "  malice."  These  constitute 
murder,  nnd  nothing  less  than  all  of  these 
can  constitute  niurdor.  Uy  what  principle 
of  logic,  reason  or  justice  can  either  of 
these  elements  be  eliminated  from  the  of- 
fence? from  this  it  follows  that  an  indict- 
ment cliar)?intf  this  olfenco  onibraces  all  the 
above  elements,  whether  speciUcally  named 
or  not;  an<l  though  the  indictment  omits  to 
charge  lliat  the  defendant  was  of  "  snunil 
memory,"  yet  charging  "malice,"  samtii  l.s 
necessarily  in'sludeil.  The  problem  which 
equals  murder  is  composed  of  three  mem- 
bers: rir.st,  "sound  memory"  of  slayer; 
second,  "  rea.sonablo  (ireature  "  slain;  and, 
third,"  malice  "  in  the  slayer. 

Let  us  see  if  we  can  eliminate  from  this 
problem  one  of  these  members,  and  leave 
every  element  of  I  he  offence  in  the  i)roblem. 
There  can  be  no  malice  without  sanUj/; 
hence,  "  malice "  includes  saniti/.  Wo 
therefore  have  first,  a  "  rcnsonable  crea- 
ture" slain;  second,  a  malicious  slayer  — 
murder.  Hence,  the  charge  in  the  indict- 
ment, that  the  killing  was  with  "mali<!c 
aforethought,"  charges  the  slayer  to  be  of 
"sound  memory  and  discretion."  If  this 
conclusion  is  not  correct,  we  most  unhesi- 
tatingly assert  that  the  indictment  is  woi'th- 
Icss ;  for  wo  have  found,  under  our  (;ode, 
■saniti/  to  be  an  element  of  murtler,  nnd,  by 
well  settled  rules  of  criminal  pleading,  an 
indictment  which  fails  to  cmbraco  in  its  al- 
legations all  of  the  constituent  elements  of 
the  olFcncc  is  fatally  defective.  The  author- 
ities api)roach  nearer  to  unanimity  upon 
this  question  than  any  other  known  to  us. 

If  the  above  analysis  bo  correct  — and  we 
think  it  is  — it  devolves  upon  the  .State  to 
Iirovo  every  »«/terent  element  of  the  ofFence; 
and  as  we  have  found  saniti/  to  bo  such  an 
element,  it  rests  upon  the  State  to  prove 
saniti/.  Still  holding  with  a  firm  grasp  the 
proposition  that  sanity  is  an  in/teren^  element 


of  the  otfoncc,  and  as  there  Is  m  thing 

in  law  as  scpai'ating  I  he  elements  of  an  of- 
fence so  as  toca>t  tlif  burden  of  upart  upon 
the  State,  and,  as  to  the  rent,  to  reciulro  the 
defendant  to  lake  the  burden  of  proving  a 
negative,  it  follows  that  llie  e-vistem-o  of 
each  element  is  an  njfirmative  proposition, 
the  proof  of  wliH'h  re>ts  with  the  State. 
The  idea  that  the  buiilcn  of  proof  shifts  is 
in  direct  cmiilict  with  the  philosophy  of 
criminal  jurisprndenci',  and  at  war  with 
fundamental  princi|il(!s;  for  wo  hold  that, 
with  regard  to  necessary  ingredients,  it 
never  shifts.  If  two  or  more  elements  con- 
stitute an  otfcncc,  which  of  these  elements 
must  be  proven  by  the  State,  and  which 
must  bo  proven  not  to  exist  by  the  defend- 
ant? If  e/cHii ,!.'«,  do  they  not  all  stand  upon 
the  same  plane,  or  are  there  so  which 
prove  themselves?    If  there  aro,  'onot 

elements.    An',  we  to  re(|Uire  the  f'  it  to 

prove  the  non-e.\istence  of  that  element  — 
sanity— upon  which  intent  and  malice  de- 
pend, and  yet  hold  the  state  to  prove  intent 
a,nA  malice?  To  us  it  is  impossible  to  har- 
monize, logically,  these  positions. 

We  are  now  led  to  meet  the  most  plausible, 
ditlicult,  and  potent  position  which  can  be  as- 
sumed upon  the  other  side.  And  wo  hero 
concede  that  it  is  supported  by  t'he  weight  of 
authority;  but  we  do  not  think  it  is  founded 
in  principle,  and  if  not  founded  in  principle, 
to  follow  would  be  dangerous.  It  is  this' 
The  fact  of  killing  being  admitted,  and  that 
beyond  doubt  the  prisoner  did  the  killing, 
an3  spnity  being  the  normal  condition  of  all 
persons,  the  law  i)resumes  the  prisoner  sane 
until  he  shows  to  the  contrary;  and  there- 
fore the  burden  of  proving  insanity  rests 
with  the  prisoner.  It  will  be  seen  at  once 
that  the  struggle  is  with  this  presumption  of 
sanity. 

Let  us  move  quietly  but  closely  up  to  this 
gentleman  and  try  to  see  who  he  is.  The 
name  of  this  witness  is  presumption,  •lie  is  a 
remarkable  gentleman.  He  was  contempo- 
rary with  the  first- born  principles  of  en- 
lightened jurisprudence.  For  t/uth  and 
integrity  ho  has  never  been  excelled  by  any 
witness.  His  means  of  knowledge  are  un- 
suriiassed,  having  for  f,  foundation  the  laws 
of  nature,  and  the  truth  of  his  evidence  is 


saloon,  in 
lied  by  the 
oYf  refused 
L'ontinuing 

IK  thing 

enln  of  an  ot- 
if  n  part  u|i()ii 
o  rei|uiro  the 
of  proving  11 
cxistciico  of 
!  proposition, 
li  tlio  btato. 
)roof  sliifts  is 
iliilosophy  of 
lit  war  Willi 
hvo  hold  that, 
i^jredicnts,  it 
tlemcntx  con- 
leso  elomonls 
c,  anil  wliicli 
)y  the  defend- 
ill  stand  upon 
a  so  which 
e,  'c  not 

3  ('  It  to 

lat  element  — 


id 


malice  de- 
irovo  intent 
ible  to  har- 


ist  plausible, 

icli  can  be  as- 

And  wo  here 

t'hc  weiRlit  of 

t  is  founded 

n  principle. 

It  is  this- 
ted,  and  that 

tlio  killing, 
ndition  of  all 
risonersane 

and  there- 
nsanify  rests 
seen  at  once 
csumptiun  of 

ly  up  to  this 

he  is.    The 

Hon.  -He  is  a 

contompo- 

iples  of  en- 

t/uth   and 

ellcd  by  any 

dge  are  un- 

,ioii  the  laws 

evidence  is 


muuEN  or  I'KooK. 


845* 


DlMMuntiiijL;  Opinion  of  Hurt,  J, 


the  conversation,  Wliltlow  told  hint  Uiiit  if  lie  did  not  (jiiit  drinkino;  lie, 
Whitlow,  Would  nporl  him,  find  his  dismissal  from  the  nij^ht-walcli 
force,  on  which  hi<  was  employed,  wotihl  foMow.  About  this  time  ('apt. 
Paddock  came  up,   and  cuteied  into   a  convcrbation  with   Whitlow. 


coiToborated   by  the   cxiicricnoo   ol    man 
throuuli  all  ages.    The  etlei't  of  lii    fvidencu 
Is  tliu  pi'iidnction  of  not  only  a  incie /irt'tia 
facie  case,  but  full  and  conipleU' (•oiivicllon 
« iu'n    not    op])Ohed.     I'pon   this   evidence 
alone,  when   not  contraillcted,  sii     'being 
the  only  issue,  man  has  been  n  .do  to  I'Xpi- 
atc  the  violated  law  with  his  life.    Wlien  he 
speaks  to  the  sanity  of  the  prisoner,  lii>  evi- 
dence meets  witli  an  approving  resjionse  in 
the  mind  of  every   intelligent  and  honest 
juror,  for  their  experience  corroborates  his 
testimony.    Kut   be   is    noi  infallible.     Jle 
never  testifles  to  tlie  sanity  of  i\\\y  particular 
individual.    His  is  never  yjo-fiiire,  but  always 
7jrcs((;Hy)<ire,  evidence.    Sanity  being  the  nor- 
mal condition  of  m.'in,  he  j)rc.iHniea  that  to  be 
the    condition  of   the   \irisoiier.    With  the 
parents  or  relatives  of  tlie  prisoner  be  is  not 
aciiuainted.    He  is  not  aware  of  the   fad 
that  perhaps  some  of  tlie  iirisoner's  blood- 
relatives  are  now  inmates  of  an  asylum  for 
the  insane.    Though  his  locks  are  bleacliot 
by  the  winters  of  ages  ;  though  lie  has  never 
l)cen  charged  with  prejudice,  and  though 
Ills  evidence  is  supported  by  the    laws  of 
nature  and  corroborated  by  the  experience 
of  man,  yet  he  is  soinewiiat  «)'6j7;v(r(/.    He 
places  the  prisoner  in  the  normal  condition 
of  man,  wliicli  is  sanitij,  and  demands  of  him 
the  same  conduct  whether  sane  or  insane. 
He  never  heard  of  inmnit y ,  because  he  speaks 
alone  from  the  laws  of  nature,  and  insanity 
being  an  exception  to  the  natural  rule,  tliey 
are  unacriuainted.    With  the  prisoner's  Ian. 
guage,  conduct  or  misfortunes  he  has  noth- 
ing to  do,  and  of  them  he  is  entirely  ignorant. 
Yet  he  liolds  himself  with  an  iron  gras))  to 
the  laws  of  nature  and  the  experience  ot 
man.    Is  he  omnipotent?    How  many  wit- 
nesses are  necessary  to  measure  arms  with 
this  Titan?    Does  he  jiartako  of  the  kingly 
character,   and    can   "ho    do   no  wrong?" 
Upon  the  testimony  of  one  witness  alone, 
the  piisoner  may  be  legally  convicted   and 
executed.    Can   ibis  geiilleman's   evidence 
accomplish  nion?    In    no  case  can  he  ac- 
complisli  more  than  can  bo  elfected  by  the 
evidence  of  one  witness.    We  do  not  mean 
the  evidence  of  any  witness.    Can  the  evi- 
dence of  one  witness  ever  be  an  over- match 
lor  him?    In  some 'jases  it  legally  and  justly 


can;  In  others  the  testimony  of  Rcorcs  will 
not  siillb'e,  this  depending  always  upon  the 
<'liaracter  of  the  witnesses,  their  means  of 
knowledgf,  and  tlie/(;(7»  siri>ni  to. 

Having  emlcavored  to  become  soincwhat 
iic<iuaiiiled  Willi  the  witness  presumption,  we 
now  <lesire  to  call  special  attention  to  a  \cry 
reiiiarkiildn  feature  of  bis  character.  It  is 
conceded  by  all  that  his  evidence  is  relied 
upon,  anil  is  absolutely  neces-^ary  to  con- 
vict, in  a  great  many  cases  in  which  the 
t/uestion  nt  sanity  \s  not  involved.  It  is  al>o 
conceded,  under  our  decisions,  that  in  these 
very  cases  tlie  burden  of  proof  does  not  shift, 
but  remains  with  the  State  throughout. 
Now,  upon  what  principle  of  logic,  or  justice 
can  we  give  to  this  prc^imption  so  niiich 
pov.cr  in  a  case  involving  the  ((ucstion  of 
saniti/mt  lo  shift  the  burden  to  the  prisoner, 
and  in  the  other  cases  hold  that  it  does  not 
shift  t 

\\\  Akc  V.  State,  C  Tex.  (.\pp,,  mis,  Judge 
White  makes  an  extract  from  the  opinion  ot 
Judge  liigelow  in  tiio  case  of  Vomvionwealth 
v.  McKee,  1  (Jray,  (il.  From  it  wo  give  the 
following:  "  The  general  rule  as  to  the  bur- 
den of  proof  in  criminal  cases  is  sullieiently 
familiar.  It  reijuires  the  Government  to 
prove,  beyond  a  reasonable  doubt,  the  of- 
fence charged  in  the  indiiMinent,  and  if  the 
jiroof  fails  to  establish  any  of  the  essential 
ingredients  necessary  to  constitute  the  crime, 
the  defendant  is  entitled  to  an  ac(juittal. 
This  results  not  only  from  thi;  well-estab- 
lished principle  that  the  presunipti<in  of 
innocence  is  to  stand  until  it  is  overcome  by 
proof,  but  also  from  the  form  of  the  issue  in 
all  criminal  cases  tried  on  the  merits, 
whiili,  being  always  a  general  denial  of  the 
crime  charged,  necessarily  iinpo-es  on  the 
Government  the  burden  of  showing  alllrm- 
atively  the  existiMico  of  every  inatenal  in- 
gredient which  the  lawre<iuircs  in  order  to 
constitute  the  offence.  If  the  act  cliarged 
is  justillable  or  excusable,  no  criminal  act 
has  been  committed,  and  tlio  allegations  in 
the  indictment  are  not  iiroved.  This  makes 
a  broad  distinction  in  the  application  of  tlie 
rule  as  to  the  burden  of  proof  in  (Mvil  and 
criminal  cases.  In  the  former,  matters  ol 
justillcation  or  excuse  must  be  specillcally 
pleaded  in  order  to  be  shown  iu  evideuce. 


850 


EVIDENCE   AND   PRACTICE. 


Erwin  v.  State. 


"While  Whitlow  and  Paddock  were  talking,  the  appellant  asked  Whitlow : 
"Are  30U  going  to  give  me  tliat  drink?"  to  which  question  Whitlow 
answered,  "No!  "  Appellant  drew  his  pistol,  and  said:  "  G — d  d — n 
you,  you  have  been  back-capping  me  all  the  time,  and  I'll  give  it  to  you 


and  the  defendant  is  therefore,  by  the  form 
of  his  |)lca,  obiiged  to  aver  an  affirmative, 
and  iliereby  to  assume  the  burden  of  estab- 
lisliuig  it  by  proof;  while  in  the  latter  all 
such  matters  are  open  under  the  general 
issue,  and  the  affirmative  —  viz.,  proof  of  the 
crime  charged  —  remains,  in  all  stages  of  the 
case,  upon  the  Government." 

The  quotation  being  ended,  Judge  White 
proceeds;  "  As  thus  enunciated,  we  believe 
the  doctrine  to  be  correctly  asserted,  and 
we  know  of  no  decision  of  any  of  the  courts 
in  this  State  which  has  ever  contradicted  or 
contravened  it." 

We  ask  special  attention  to  the  doctrine 
enunciated  by  Judge  Bigelow,  and  which  is 
alErmed  by  our  own  judge  in  the  opinion 
above  quoted  from,  which  is  as  follows: 
"The  ]/urden  of  proving  «'ery  essential  ele- 
ment necessary  to  constitute  the  offence  is 
with  the  Government,  and  this  remains,  in 
all  stages  ot  the  case,  upon  the  Government." 
This  rule  applies  only  to  the  burden  of  proof 
of  the  necessary  ingredients  of  the  offence, 
and,  as  Judge  White  further  and  properly 
states,  "when  distinct  substantive  matter 
is  relied  upon  by  the  defendant  to  exempt 
him  from  punishment  and  absolve  him  from 
liability,  then  that  is  matter  foreign  to  the 
issue  as  made  by  the  State  in  her  charge 
against  him,  and  the  burden  of  proving  it, 
in  reason,  common  sense,  and  law,  should  be 
upon  the  defendant."    The  italics  are  ours. 

From  the  above  we  deduce  these  rules:  — 

1.  The  State  must  prove  every  necessary  in- 
gredient ot  the  offence,  and,  so  far  as  they 
(the  ingredients)  are  concerned,  the  burden 
of  proof  never  shifts. 

2.  When  distinct,  extrinsic  matter  is  re- 
lied on  by  the  defendant,  tlie  burden  1p  on 
him  to  prove  it  to  the  satisfaction  of  the 
jury. 

To  these  rules  we  give  our  hearty  assent. 
But  the  grand,  fundamental  question  here 
again  presents  itpclf:  "Is  sanity  a  neressarj/ 
element  of  crime?  "  We  have  said  all  we  de- 
sire to  say  (in  this  question. 

We  now  propose  to  return  to  that  plausi- 
bli'  iMtsition  of  the  other  side:  "  The  evi- 
dence .'showing  the  act  to  have  been  done  by 
the  defendant,  and  sanity  being  iiresumcu 
by  the  law,  the  burden  shifts  to  the  defend- 


ant."   Those  who  occupy   the  other  side 
plant  themselves  upon  this  proposition,  and 
ask  with  plausibility  and  a  preat  show  of 
victory :  "  Will  not  the  prisoner  be  convicted 
if  he  fail  to  introduce  evidence  of  his  insan 
ity?"    We  admit  that  he  will,  and  justly. 
But  suppose  the  evidence  shows  that  the  de- 
fendant killed  the  deceased    intentionally, 
with   a  deadly  weapon,  and   here   closes. 
Will  not  the  prisoner  be  convicted  if  he  fail 
to  introduce  evidence  in  excuse  or  justifica- 
tion f    Let  us  take  another  ca.«e :   The  State 
proves  by  a  number  of  unimpeachable  wit- 
nesses that  the  deceased  was  brutally  mur- 
dered by  some  one  in  the  perpetration  of 
rape,  and  witness  after  witness  has  sworn  to 
the  identity  of  the  prisoi  er  as  being  the  per- 
petrator of  the  foul  dee  !,  and,  in  addition  to 
all  this,  the  State  proves,  by  a  number  of 
witnesses,  facts  strongly  tending  to  prove 
the  presence  and  guilt  of  the  prisoner.    If 
the  case  closed  here,  would  not  the  prisoner 
be  in  very  great  danger  of  losing  his  life  f 
Can  presumption  make  a  stronger  case  than 
this  ?    Bear  in  mind  that  the  above   facts 
constitute  the  case  before  the  court,  and  the 
judge  should  charge  the  law  applicable  to 
the  case  as  made  by  the  facts.    Kow  suppose, 
in  this  case,  the  State  having  clobed,  the 
prisoner  proves,  by  a  number  of  his  neigh- 
bors, that  he  was  at   another  place  at  the 
time  the  offence  was  committed,  and  auds 
fact  upon  fact  in  support  of  their  evidence  in 
favor  of  an  alibi.    This  would  be  quite  a  dif- 
ferent case  from  *he  f!r«t,  but  tlie  case.    Now, 
suppose  the  judge  should  split  the  last  case 
just  where  the  State  closed  (notwithstand- 
ing t/ie  rose  as  made  by  all  the  evidence),  and 
charge  that  the  burden  of  proof  shifted  to 
the  prisoner  to  prove  his  alibi.    Would  that 
be   held   sound  law  in  this  State?    By  no 
means,  and  for  the  simple  reason  that  if  the 
prisoner  vas  not  there  he  is  not  guilty.    An 
alibi  strikes  at  the  very  heart  of  the  propo- 
sition of  guilt,  and  every  particle  of  evidence 
in  its  supi)ort,  though  negative  in  its  charac- 
ter, is  a  direct  attack  upon  the  theory  of  his 
presence  at  the  i)lace  of  the  crime;  and,  if 
not  there,  lie  is  ni)t  guilty.    And  here  we 
would  call  attentiiin  to  another   source  of 
confusion  (in  our  jurlgment),  which  is  that 
many  judges  fall  into  the  error  of  viewing 


BURDEX   OF   PROOF. 


851 


Dissenting  Opinion  of  Hurt,  J. 


Whitlow: 
n  "Whitlow 
^—d  d— n 
e  it  to  you 


now,"  and  immediately  fired  tlie  ball,  striking  Whitlow  in  the  arm,  from 
which  wound  he  was  confined  to  his  bed  for  two  weeks.  Paddock 
started  to  appellant,  but  the  latter  presented  his  pistol  and  held  him  at 
bay.     The  city  marshal  approaching  about  this  time,  the  appellant  left, 


s  other  side 

liosition,  and 

reat  show  of 

be  convicted 

of  his  insan 

I,  and  justly. 

8  that  the  de- 

intentionally, 

here   closes. 

Bted  if  he  fail 

!  or  justifica- 

y.   The  State 

tachable  wit- 

brutally  niur- 

irpetration  of 

has  sworn  to 

icing  the  per- 

in  addition  to 

a  number  of 

ing  to  prove 

prisoner.    If 

t  the  prisoner 

ling  his  life  t 

ger  case  than 

above   facts 

nurt,  and  the 

!)plicable  to 

ow  suppose, 

closed,  the 

)f  his  neigh - 

ilacc  at  the 

d,  and  aaUs 

evidence  in 

quite  a  dif- 

case.    Now, 

the  last  case 

ut  withstand- 

idence),  and 

of  shifted  to 

Would  thiit 

ate?    By  no 

n  that  if  the 

guilty.    An 

f  the  propo- 

>  of  evidence 

n  its  charac- 

heory  of  his 

inie;  and,  If 

ml  here  we 

source  of 

h  it'll  1.1  that 

r  of  viewing 


the  case,  not  as  a  whole,  but  in  Its  different 
stages,  and  apply  the  law  in  their  charges  to 
those  stages.  This  splitting  up  of  a  case  into 
several  parts,  and,  by  the  charge,  shifting 
the  burden  first  upon  the  one  and  then  upon 
the  other  iiarty,  is  against  law  and  i)rinciple. 
In  every  criminal  iirosecution  theguiltof  the 
prisoner  is  the  objective  point,  and  every 
btep,  every  move,  every  clement  of  the  of- 
fence, and  any  fact  which  is  necessary  to 
arrive  at  that  point  is  rtj^r?H«<tre  in  its  very 
nature;  and,  as  to  any  of  these,  the  burden 
.^erer  shifts. 

">Vc  have  found,  in  this  supposed  case  of 
murder,  that  if  the  defendant  failed  to  in- 
troduce evidence  he  would  likely  forfeit  his 
life ;  but  u-e  hare  also  found  that  the  burden  in 
that  case  did  not  shift.  Now,  suppose  the 
State  proves  that  the  prisoner  deliberately, 
and  with  a  deadly  weapon,  kills  the  de- 
ceased, and  here  the  evidence  closes.  Must 
the  State  go  further,  and  prove  sanity,  by 
introducing  a  witness  to  that  point?  15y  no 
means,  for  sanity  is  not  in  the  case.  Rut 
suppose  the  prisoner  piles  fa<'t  ujjon  fact 
tending  to  show  insanity,  must  the  court 
charge  that  the  burden  in  this  case  is  on  the 
prisoner? 

Is  this  8  stranger  case  than  the  one  above 
put?  We  think  not.  Then,  can  any  sound, 
logical  reason  be  given  for  shifting  the  bur- 
den in  the  last  and  not  in  tlie  first  case? 
Most  unquestionably  not.  We  have  found 
that  proof  of  an  alibi  is  a  direct  attack  upon 
the  theory  of  the  defendant's  presence  at  the 
place  of  the  crime.  Proof  of  insanity  is, 
therefore,  an  attack  upon  sanity,  and  if  iliis 
is  gone,  there  is  no  intent,  no  malice;  and 
if  these  are  wanting,  there  is  no  murder,  no 
crime.  If  there  is  a  mistake  in  these  conclu- 
sions, we  are  not  capable  of  reasoning  upon 
any  subject,  for  these  are  our  settled  and 
honest  convictions. 

We  therefore  conclude  that,  since  sanity 
is  an  essential,  inherent  element  of  mwder, 
and  since  the  State  must  prove  all  of  the 
necessary  ingredients  of  the  offence  charged, 
we  cannot  escape  the  conclusion  that  the 
State  must  prove  sanity;  and  as  we  have 
found  tliat  the  burden  of  proof  does  not 
i-hift  in  regard  to  necessary  ingredients  of 
the  offence,  and  as  sanity  is  such  an  ingre- 


dient, it  also  follows  that  the  burden  of  proof 
's  upon  the  State  to  show  sanity,  and  not 
upon  the  defendant  to  prove  insanity —  a, 
negative.  This  rule  has  no  application  to 
cases  in  which  the  question  of  sanity  is  not 
raised ;  nor  do  the  rules  ai)plicable  to  alibi 
in  all  cases,  good  faith  and  mistake  in  theft, 
etc.,  have  any  application  in  cases  in  which 
the  facts  do  not  call  for  them. 

Now,  let  us  see  if  we  can  put  these  prin- 
ciples into  active  oi)eration;  for,  unless 
practical,  they  are  valueless.  The  jury  is 
sworn,  and  the  plea  of  "  not  guilty"  en- 
tered by  the  prisoner.  The  charge  is  mur- 
der. The  burden  is  on  the  State  to  prove 
guilt.  The  State  proves  the  killing  by  the 
defendant  with  a  deadly  weapon ;  the  wound 
was  mortal,  the  act  deliberate,  and  not  at- 
tended with  any  circumstances  of  mitiga- 
tion, extenuation  or  justification.  But  hero 
we  are  met  with  the  objection  that  there  is 
no  i)roof  of  sanity.  Not  so;  for  the  State 
has  the  evidence  of  that  venerable  and  im- 
partial witness,  the  truth  of  whose  state- 
ments is  corroborated  by  the  laws  of  nature 
and  the  experience  of  man.  lie  i>  the  lirst 
witness  in  every  case,  and  at  the  very 
threshold  proclaims  tlie  sanity  of  all  per- 
sons, lie  not  only  jiroclaims  sanity,  but 
when  ';ertaiii  facts  are  proved,  he  swears  to 
the  existence  of  malice.  Not  only  so,  but 
when  an  injury  is  inflicted,  he  testifies  to  the 
fact  that  the  party  inflicting  the  injury  in- 
tended so  to  do.  Take  the  above  case  with 
the  testimony  of  this  witneaa i)resunipti07i  in 
connection  with  the  other  facts,  and  if  the 
evidence  closes  there,  the  defendant  would 
and  should  be  convicted.  I)ut,  the  State 
having  closed,  the  defendant  proves  fact 
alter  fact  tending  to  show  the  want  of  san- 
ity. Shall  wo  try  him  by  the  presumption 
or  by  the  facts  on  tUe  question  of  sanity,  or 
by  both  the  presumption  and  the  facts?  If 
this  witness  is  infallible;  if  he  cannot  err; 
if  his  evidence  is  conclusive  on  the  question 
of  sanity,  then  we  should  try  him  by  the 
presumption,  which  would  be  no  trial  at  all. 
But,  as  he  knows  nothing  of  this  case,  and 
since  his  evidence  is  not  conclusive  when 
opposed  by  other  evidence,  but  very  power- 
ful, and  conveying  evidence  of  a  presump- 
tive character,  we  should  try  the  defendant 


852 


EVIDENCE   AND    PRACTICE. 


Erwin  v.  State. 


payinj^  no  attention  to  the  marshal's  order  to  halt.  Two  witnesses  for 
the  State  testified  that  while  the  appellant  appeared  to  be  drinking  some- 
what, he  did  not  appear  to  be  deprived  of  his  reason,  and  in  their  opin- 


ion he  knew  what  he  was  doing. 


by  bot?i.  The  trial  proceeds  ;  the  defendant 
proves  fact  after  facl,  tending  to  show  the 
want  of  sanity;  but  there  is  the  evidence  of 
that  old,  hoary-hcaded  witness,  who  is 
without  partiality  or  prejudice;  who  is  not 
related  to  either  of  the  parties,  and  who  Is 
incorruptible,  proclaiming  the  sanity  of  the 
defendant.  The  jury  draw  ui)on  an  experi- 
ence which  corroborates  the  truth  of  his 
evidence;  but,  as  ho  knows  nothing  of  the 
sanity  of  this  particular  prisoner,  his  evi- 
dence being  of  a  presumptive  character,  and 
notconclusive,  the  struggle  throughout  tlio 
trial  i-i  between  his  evidence  and  that  of  the 
defendiint.  The  defcnilant  closes,  and  the 
old  wilnoss  presumption  appears  to  bo 
crushed ;  but  in  comes  the  .State  with  the 
evidence  of  witness  after  witness  swearing 
to  facts  tending  to  show  sanity,  thus  cor- 
roborating this  witness  presumption ;  and 
tl.us  the  jury  try  the  case  by  the  evidence 
of  this  witness  presumption,  in  connection 
with  alt  the  evidence  on  the  question  of  san- 
ity, giving  to  each  witness  and  all  the  evi- 
dence their  due  and  proper  weight,  just  as 
in  other  cases  in  wliich  the  question  of  san- 
ity is  involved.  It  will  bo  seen,  therefore, 
that  the  evidence  of  this  witness  presump- 
tion is  to  be  taken  in  connection  with  all  of 
the  other  evidence,  he  being  treated  as  a 
witness  in  the  case. 

lly  a  careful  survey  of  the  above  positions 
it  will  be  perceived  that  the  burden  of  proof 
Is  quite  a  dilforent  thing  from  tlie  means  or 
instruments  of  proof.  We  liave  not  time 
here  to  elaborate  this  position.  We  have 
now  said  a'l  we  desire  to  say  upon  the  bur- 
den of  proof,  concluding  that  it  never  shifts 
in  vogard  to  the  necessary  ingredients  of  the 
offence. 

The  court  below  charged  the  jury  that  the 
burden  of  proving  instmily  was  upon  the 
defendant.  'I'his,  wo  think,  was  error.  17 
Mich.  Ill;  10  N.  Y.  (iH;  2  Mete.  240;  1  Gray, 
61;  7  Metc'iOO;  31  111.  ;18.5;  State  r.  Crawford, 
14  Am.  L.  Keg.  (N.  S.)  23;  43  N.  H.  224;  19 
Ind.  170;  United  States  v.  McGlue,  7  Law 
Hep.  (N-.  rs.)  439. 

The  nexti)ropo8ition  is:  "Must  the  State 
prove  sanity  beyond  a  reasonable  doubt?" 
[f  sanity  is  a  necessary  ingreilient  of  crime, 
aiid  if  it  be  necessary  to  prove  the  ingredi- 


ents of  crime  beyond  a  reasonable  doubt, 
the  conclusion  that  it  -,anity)  must  be  proved 
beyond  a  reasonable  doubt  cannot  be  re- 
sisted. Hence  the  settlement  of  tlie  first 
proposition  —viz.,  that  sanity  is  an  inherent, 
intrinsic,  necessary  element  of  crime  —con- 
clusively settles  the  last  i)r<(position,  if  the 
doubt  can  be  applied  to  the  necessary  ingredi- 
ents. To  illustrate:  The  defence  is  the  want 
of  sanity,  or  alibi,  or  good  faith,  or  mistake,  or 
any  other  matter  which  will  defeat  guilt; 
now,  is  it  projier  to  specifically  apply  the 
doubt  to  either  of  these  grounds?  Take,  for 
example,  tho  fraudulent  intent  in  theft,  and 
assume  that  the  facts  are  of  such  a  character 
as  to  make  thi.s  the  only  question.  Upon 
this  the  defendant  makes  his  contest.  Would 
it  be  wrong  for  the  court  to  apply  the  doubt 
directly  to  this  part?  We  think  not.  Then 
if  the  doubt  can  properly  and  justly  be  spe- 
cifically applied  to  one  ingredient  of  an  of- 
fence, why  not  to  others,  if  they  are  made 
prominent  by  the  situation  of  the  case.  II 
the  court,  by  its  charge,  calls  special  atten- 
tion to  the  defence  or  defences  urged  by  de- 
fendant, and  then  applies  the  doubt  to  tlie 
whole  case,  we  are  not  to  be  understood  as 
holding  that  this  would  be  error.  But  sup- 
pose the  defenitant  asked  that  the  doubt  be 
pointedly  and  directly  applied  to  his  defence 
or  defences,  would  it  bo  right  or  wrong  for 
the  court  to  thus  ai)ply  it?  This  brings  to 
the  front  the  rir/ht  or  wrong  of  the  princi- 
ple. 

Now,  it  is  conceded  by  all  that  if  there  be 
a  doubt  of  the  guilt  of  the  defendiint  the 
jury  must  acquit,  and  as  there  can  l)e  no 
guilt  Mil  bout  sanity,  a  doubt  of  sanity  would 
therefore  be  a  doubt  of  guilt.  If  it  be  i)roper 
to  acquit  upon  doubt  of  guilt,  how  can  it  be 
wrong  to  acquit  upon  a  doubt  of  sanity,  upon 
which  guilt  necessarily  depends?  \\ Otild 
an  honest  and  just  man  convict,  if  he  had  a 
well  founded  and  reasonable  doubt  of  the 
prisoner's  sanity?  Wo  think  not.  Would 
justice  demand  his  conviction,  or  would  not 
reason,  humanity,  and  justice  imperatively 
ro(iuire  his  acciuittal?  Then,  if  uiioua  well- 
founded,  reasonable  doubt  of  sanity,  justice 
demands  Ids  acquittal,  is  it  wrong  for  the 
court  to  so  state  in  its  charge?  Must  justice 
be  put  to  shame,  driven  to  the  rear,  and  forced 


nesses  for 
:ing  some- 
their  opin- 


lable  doubt, 
list  be  proved 
annot  be  ro- 
ot the  flrst 
I  an  inherent, 
crime — con- 
•sition,  if  the 
tsari/  ingredi- 
e  is  the  u-ant 
)r  mistake,  or 
Jcfeat  guilt; 
lly  apply  the 
s?  Talie,  for 
in  theft,  and 
li  a  character 
stiou.  U|)on 
itest.  "Would 
ly  the  doubt 

;  not.    Tlien 
> 

justly  be  spe- 

3nt  of  an  of- 

py  are  made 

the  case.    II 

pecial  atten- 

urged  by  de- 

oubt  to  the 

iiderstood  as 

But  sup- 

Jie  doubt  be 

his  defence 

wrong  for 

lis  brings  to 

tlie  princi- 

if  there  be 
ft'ndiuit  the 
e  can  be  no 
sanity  would 

it  be  i)roper 
ow  can  it  bo 
sanity,  upon 
ids?  Vould 

if  he  had  a 
loubt  of  the 
not.  Would 
ir  would  not 
inperatively 
upon  a  well- 
inUy,  justice 

iig  for  the 
Must  justice 
,  and  forced 


BURDEN    OF   PROOF. 


85;:? 


Dissenting  Opinion  of  Hurt,  J. 


A  number  of  witnesses  for  the  defence  testified  tliat  at  tlie  time  of. 
and  for  some  time  previous  to  tlie  shooting,  the  appellant  had  been 
drinking  to  great  excess.  They  declared  their  belief  in  his  insanity  re- 
sulting therefrom,  and  that  he  did  not  know  right  from  wrong  at  the 
time,  nor  what  he  was  doing.  Upon  this  testimony  the  appellant  rested 
his  defence. 


to  ensconce  herself  behind  some  other  proposi- 
tion f  Has  not  the  prisoner  the  right  to  have 
her  brought  to  the  front,  face  to  face  with 
the  jury,  and  the  jury  to  be  ;.iade  to  pass 
upon  her  merits?  In  every  trial,  justice 
should  be  kept  in  the  front  rank,  ant"  not 
driven  to  the  rear  with  the  stragglers  and 
camp-followers.  We  therefore  conclude 
that,  when  requested  by  the  prisoner,  the 
court  should  charge  the  jury  that  if  they 
have  a  reasonable  doubt  as  to  the  sanity  of 
the  prisoner  they  should  acquit  him.  Hatch 
r.State,  (5  Tex.  (App.)  384;  Uobinson  v.  State, 
5  Tex.  (App.)  .51'.);  Kay  v.  State,  40  Tex.  29. 
This  charge  was  asked  and  refused  in  the 
Webb  Case,  decided  at  this  term  {ante,  p. 
490),  in  which  action  of  the  court  we  think 
there  was  error. 

From  the  statement  of  facts  in  this  case, 
it  will  be  found  that  the  defendant  stated 
'hat  he  was  compelled  to  kill  deceased;  that 
he  had  taken  suppei*  at  his  sister's,  near 
Hilliard's,  and  on  his  way  home  was  pass- 
ing Dr.  Harrington's,  when  he  got  after 
him  with  a  pistol  and  ran  him  down,  when 
he  wheeled  and  shot  him.  The  State  intro- 
duced these  statements.  It  further  appearsi 
from  the  horse -tracks,  that  deceased  was 
running  his  horse  along  the  road  in  the  di- 
rection of  the  person  who  shot  him,  and 
also  that  the  deceased  fell  in  the  road,  and 
that  his  pistol  was  lying  by  him.  The  kill- 
ing was  in  the  night,  and  was  not  seen  by 
any  person.  Under  these  facts,  defendant 
proposed  to  show  that  just  before,  or  a 
short  time  before  the  killing,  deceased 
threatened  to  kill  tlie  defendant.  This  being 
objectoii  lo  Dy  che  State,  the  court  sus- 
tained the  objection;  to  which  the  defend- 
ant excepted,  and  reserved  a  proper  bill  of 
exceptions.  It  is  conceded  by  the  assistant 
attorney-general  that  this  evidence  was  ad- 
missible, but  contended  that  the  defendant 
is  not  injured  by  its  rejection,  because  the 
facts  establish  overwhelmingly  that  defend- 
ant was  waylaying  the  deceased,  and  that 
the  right  of  self-defence  was  thereby  for- 
feited.  It  will  be  seen  that,  under  this  state 


of  case,  our  third  proposition  is  found,  viz.': 
"Can  the  proof  be  so  plenary  on  one  side  as 
to  justify  the  court  below  in  tlu;  rejection 
of  legitimate  and  proper  evidence  in  behalf 
of  the  other  side?  "  To  this  proposition  our 
answer  must  be  in  the  negative.  To  hold 
the  contrary  would  ninke  the  court  the 
judge  of  the  weight  of  tlie  evidence  and  the 
credibility  of  the  witnesses,  which  is  imper- 
atively and  invariably  the  province  of  the 
jury.  There  can  be  no  case  until  the  evi- 
dence is  closed  on  both  sides,  and  tln'ii,  and 
not  till  then,  can  it  be  proiierly  termed  the 
case.  This  evidence,  which  legally  and 
justly  constituted  a  i>art  of  the  case,  being 
rejected,  the  jury  passes  upon  a  part,  and 
not  the  whole  case,  which  nius^t,  of  neces. 
sity,  result  in  injury  lo  the  defendant. 

When  the  court  charged  the  burden  to 
be  on  the  defendant  to  show  insanity,  we 
think  there  was  error,  and  that  the  rejec- 
tion of  evidence  of  threats  was  also  error. 
For  these  the  judgment  must  be  reversed 
and  the  cause  remanded. 

White,  P.  J.,  and  Winkler,  j.  — W'e 
concur  in  the  above  opinion  reversing  the 
judgment,  but  cannot  give  our  assent  to 
the  views  or  conclusions  expressed  with 
regard  to  the  question  of  insanity.  Our 
views  upon  this  subject  will  be  found  in  the 
opinion  in  the  case  of  Webb  v.  State,  a?j<e,p. 
835,  recently  decided  by  this  court. 

The  law  presumes  every  man  to  be  sane, 
and  that  presumption  alone  will  of  itself 
sustain  the  burden  of  proof  which  is  de- 
volved upon  the  State  in  every  criminal 
case,  80  far  as  sanity  is  involved,  until  it  is 
rebutted  and  overcome  by  satisfactory  evi- 
dence to  the  contrary.  Naturally,  and  in 
fact,  the  burden  to  rebut  this  presumption 
rests  with  and  is  upon  the  defendant;  and 
he  should  bo  able  to  show  his  insanity 
clearly,  and  to  that  extent  that  the  minds 
and  consciences  of  the  jury  can  say  that  on 
account  of  his  insanity  ho  was  guiltless  of 
entertaining  the  criminal  intent  essential  to 
responsibility  for  the  crime  charged.  This 
is  not  only  required  by  the  general  rule  of 


854 


EVIDENCE   AXD  PRACTICE. 


Erwiu  V.  State. 


Ball  &  McCart,  for  the  appellant. 

JI.  Chilton,  Assistant  Attorney-General,  for  the  State. 

Hurt,  J. — Erwin,  the  appellant,  was  convicted  of  the  offence  of 
assault  with  intent  to  murder.  His  defence  was  that  he  was  insane  at 
the  time  of  the  assault ;  that  he  was  suffering  under  a  species  of  insan- 
ity known  as  delirium  tremens.  The  evidence  raises  the  issue  as  to 
whether  the  defendant  was,  at  the  time  of  the  assault,  in  a  drunken 
frenzy,  or  laboring  under  the  disease  known  as  delirium  tremens.  If, 
therefore,  delirium  tremens  is  such  imbecility  of  mind  as  will  excuse  the 
defendant,  or,  to  speak  more  in  accord  with  legal  principles,  defeat 
guilt,  then  it  was  the  duty  of  the  court  below  to  charge  the  jury  thereon 
in  a  clear  and  pointed  manner. 

That  it  is  a  species  of  insanity  rendering  the  party  incapable  of  the 
commission  of  crime,  there  is  no  longer  any  doubt.  Messrs.  Wharton 
&  Stille,  in  their  admirable  work  on  Medical  Jurisprudence,  are  very 
clear  and  emphatic  on  this  point.  They  say :  "  If  a  man  who,  laboring 
under  delirium  tremens,  kills  another,  is  made  responsible,  there  is 
scarcely  any  species  of  insanity  which,  on  like  principles,  would  not  be 
subjected  to  tlie  severest  penalties  of  criminal  law."  ^ 

A  party  laboring  under  this  species  of  insanity,  not  being  responsible 
for  his  acts  committed  while  thus  diseased,  and  the  evidence  in  this  case 
tending  to  form  this  issue,  it  was  the  duty  of  t!ie  learned  judge,  in  his 
charge,  to  have  clearly  and  pertinently  set  forth  the  princii)lo3  of  law 
applicable  to  this  defence.  This  was  not  done  in  that  clear  and  distinct 
manner  required  by  the  now  well  settled  principles  of  law. 2 

The  charge  of  the  court  upon  the  only  issue  in  this  case,  that  upon 
Avhiehthe  defendant  relied  for  an  acquittal,  to  wit,  insanity,  is  as  follows : 
"You  are  further  instructed  that  where  a  defendant  is  accused  of  crime, 
placed  on  trial,  and  the  plea  of  insanity  is  interposed,  the  inquiry  the 


law,  but  is  implied  in  the  statute,  which  re- 
<iuires  that  "  when  the  clelendant  is  acquit- 
ted on  the  ground  of  insanity,  the  jury  shall 
so  state  in  tlieir  verdict."  Code  Cr.  Prac, 
art.  T2'2.  It  is  unnecessary  to  determine 
Avhethertlie  defendant  sliall  establish  his 
insanity  beyond  areasonable  doubt  or  by  a 
preponderance  of  testimony;  all  that  is  re- 
quirod  is,  that  he  shall  establish  il  to  the 
satisfaction  of  the  Jury,  who  are  the  juilges 
of  the  fact.  Commonwealth  r.  Eddy,  7  Gray, 
5S3;  Ortweinr.  Commonwealth,  76  Pa.  St.  414; 
lllawley's  Am.  Cr.  Law,  283,  297;  Lynch  v. 
Commonwealth,  77  Pa.  St.  205. 
As  to  reasonable  doubt,  it   the  charge 


applies  this  to  the  whole  case,  this  will  sat- 
isfy the  demands  of  the  law. 

Reversed  and  remanded. 

1  Wharton  &  Stille's  Med.  Juris  ,  vol.  1,  p. 
302. 

2  Burrcll  V.  State,  18  Tex.  713 ;  Marshall 
V.  State,  40  Tex.  200;  Lindsay  i'.  State,  1  Tex. 
(App.)  327 ;  Lopez  v.  State,  42  Tex.  298 ;  Sutton 
V.  state,  41  Tex.  513;  Miles  v.  State,  1  Tex. 
(App.)  510;  Pught'.  State.a  Tex.  (App.)  539; 
Richardson  I'.  State,  7  Tex.  (App.)  48(5;  Fran- 
cis V.  State,  7  Tex.  (App.)  501;  O'Connell  v. 
State,  18  Tex.  343;  Vincent  v.  State,  9  Tex. 
(App.)  203;  Whalcy  v.  State,  9  Tex.  (App.) 
305;  Henry  v.  State,  9  Tex.  (App.)  358. 


)ffence  of 
insane  at 
of  insan- 
>sue  as  to 
n,  drunken 
lens.  If, 
sxcuse  the 
OS,  defeat 
ry  thereon 

3le  of  the 
,  Wharton 
,  are  very 
I,  laboring 
1,  there  is 
ild  not  be 

jsponsible 

I  this  case 

ge,  in  his 

3  of  law 

distinct 

that  upon 

follows : 

of  crime, 

quiry  the 

lis  will  sat- 

remanded. 
is  ,vol.  1,  p. 

;  Marshall 

'tate.lTex. 

298;SuttOD 

ate,  1  Tex. 

(App.)539; 

48(5;  Fran - 
'Connell  v. 
ate,  9  Tex. 
'ex.  (App.) 
)358. 


DRUNKEXNESS. 


855 


Charge  of  Court  as  to. 


law  requires  in  such  cases  is  not  as  to  the  amount  of  intellectual  capac- 
ity of  the  accused,  or  in  other  words,  the  law  does  not  look  to  or  inquire 
whether  an  accused  party  is  possessed  of  a  little  or  a  great  mind.  It  is 
the  quality  and  not  the  quantity  of  the  mind  that  the  law  looks  to.  If  a 
man  is  in  possession  of  a  sound  mind,  has  merely  sufficient  mental 
capacity  to  know  right  from  wrong,  to  know  and  comprehend  the  nature 
and  consequence  of  his  own  acts,  the  law  holds  such  party  accountable. 
On  the  other  hand  a  man  may  be  in  the  possession  ordinarily  of  that 
whif.a  would  be  termed  a  great  mind,  still  if  such  person,  during  a  period 
of  actual  insanity,  violate  the  law,  such  person  would  in  law  not  be  a 
subject  for  punishment,  and  in  such  case  it  is  in  law  immaterial  what 
the  cause  of  said  insanity  may  have  been.  But  in  law  insanity  and 
mere  drunkenness  are  two  things  distinct  one  from  the  other.  While 
insanity  exonerates  from  all  punisliment,  mere  driuikenness  neither 
mitigates  nor  justifies.  If  a  man  of  his  own  volition  voluntarily  be- 
comes drunk,  and  during  a  fit  or  spell  of  even  very  great  intoxication, 
does  an  act,  he  cannot  in  such  case  plead  drunkenness  as  an  excuse. 
The  law  will  not  allow  a  sane  man  to  shield  himself  from  the  conse- 
quences of  his  own  acts  on  the  ground  that  such  sane  man,  of  his  own 
accord  and  of  his  own  will,  chose  to  become  even  boastily  drunk.  No 
mere  temporary  condition  of  the  mind,  brought  about  by  a  fit  or  mere 
spell  of  drunkenness,  however  great  such  drunkenness  may  be,  is  in 
law  an  exoneration  or  excuse  for  crime." 

This  charge,  so  far  as  the  defence  of  the  defendant  is  concerned,  is 
negative  in  its  character.  There  is  no  direct,  affirmative  application  of 
the  law  to  his  theory  of  defence.  It  is  true  that  the  jury  are  told  that 
if  they  believe  that  the  defendant  is  actually  insaiie,  he  would  not  be 
amenable.  This  is  very  general,  including  every  species  of  insanity. 
The  evidence  tending,  whether  strongly  or  otherwise,  to  establish  delirium 
tremens,  the  charge  should  have  explained  that  species,  and  applied  the 
legal  ])rinciples  thereto.  This  should  have  been  done  clearly,  distinctly 
and  affirmatively.  Again,  the  charge  makes  the  test  of  insanity  depend 
upon  whether  the  defendant  knew  right  from  wrong  generally.  The 
test  is  now  settled  to  be  whether  the  defendant  knew  the  act  charged  to 
be  wrong ;  if  so,  he  is  punishable. 

There  is  another  objection  to  the  charge.  It  proceeds  upon  the  idea 
that  no  temporary  condition  of  the  mind  produced  by  drunkenness  can 
avail.  This  is  a  correct  assumption  if  delirium  tremens  can  never  result 
directly  and  immediately  from  drunkenness.  This,  however,  is  not 
the  case.    Though  usually  occurring  in  habitual  drinkers  after  a  few 


856 


EVIDENCE   AND   PRACTICE. 


Notes. 


day's  total  abstinence  from  spirituous  liquors,  it  may  be  the  immediate 

effect. » 

For  the  errors  above  pointed  out  the  judgment  is  reversed  and  the 

cause  remanded. 

Reversed  and  remanded. 


NOTES. 


§  7G.  Barbarity  ol  Crime   does  not  Raise  a  Presumption  of  Insanity. — 

The  barbarity  or  enormity  of  the  act  raises  no  legal  presiunptiou  of  insanity.* 

In  Lake  v.  People,'^  tried  in  New  York  in  1854,  it  was  said  by  the  judge  in 
cliarging  the  jury:  "It  is  contended  tliat  the  fact  of  the  i)risoner  killing  tlie 
woman  with  whom  he  coiiabited  and  his  own  children,  is  in  itself,  evidence  of 
insanity.  This  argument  evidences  not  only  a  want  of  knowledge  of  human 
nature  and  of  the  springs  of  human  action,  but  the  grossest  ignorance  of  the  his- 
tory of  mankind.  For,  from  the  time  Cain  slew  his  brother,  down  to  this  day, 
when  almost  every  newspaper  brings  tidings  of  a  Avife  killed  by  her  hushand,  or 
children  by  their  parents,  all  experience  shows  that  no  ties,  however  strong,  no 
relation,  however  sacred,  not  even  the  bonds  of  afliuity  and  consanguinity,  could 
withstand  the  wrath  of  an  exasperated  man;  and,  indeed,  when  carefully  and 
closely  considered,  the  domestic  relationship,  so  far  from  being  a  barrier  against 
violence,  invites  to  i,ts  commission,  by  the  opportunity  it  offers,  and  the  help- 
lessness of  a  portion  of  its  inmates.  Those  who  are  constantly  together  have 
such  abundant  means  of  discovering  the  offensive  traits  in  each  other's  disposi- 
tion, that  love  not  unfrequently  degenerates  into  hatred,  and  the  intimacy  of 
the  family  circle,  w)>ich  should  lead  to  peace  and  happiness,  too  often  furnishes 
the  occasion  for  angry  irritations  and  collisions  which  ultimately  terminate  in 
violence  and  bloodshed.  And  when  we  consider,  in  addition  to  this,  the  num- 
erous evil  minded  persons,  their  ungoverned  passions,  the  artillcial  excite- 
ments to  Avhich  they  resort,  we  can  hardly  be  surprised  that  a  very  large  portion  of 
the  homicides  occur  amongst  those  who  are  connected  by  the  ties  of  family  or 
blood.  Indeed,  it  is  well  known,  historically,  that  infanticide,  or  the  murder  of 
one's  own  children,  is  the  prevalent  crime  in  some  countries,  and  there  is  too 
much  reason  to  believe  that  it  is  too  frequent  in  this.  Perhaps  my  views  may  be 
colored  by  personal  observation.  The  last  case  of  mrrder  tried  in  this  court 
room  was  that  of  a  woman  for  poisoning  her  husband ;  the  other  one  tried  in 
the  same  court,  was  that  of  a  man  for  killing  the  child  of  his  wife;  both 
of  them  were  executed  in  July  of  last  year.  In  June  last  a  man  was  tried 
before  me  iu  Brooklyn  for  beating  his  wife  to  death,  and  in  December  of  the 


1  Wharton  &  Stille's  Med.  Jur.,  vol.  1, 
sect.  202;  Kay'B  Med.  Jur.  238. 

a  State  v.  Stark,  1  Strobh.  479  (1847) ; 
Laros  v.  Com.,  84  Pa.  8t.  20Q  (1877) ;  Holsen- 
bake  V.  State,  45  Ga.  43  (1872) ;  Ball's  Case, 


2  City  Hall  Reo.  85  (1817) ;  Plenovi's  Caoe, » 
City  Hall  Rec.  123  (1818). 

8 1  Park.  495;  «.  c, People  v.  Lake,  12 X.  Y, 

358  (1856). 


NO  INFEKENCE   OF   INSANITY  FROM  CRIME. 


857 


Adultery  —  When  Evidence  Kelevant. 


mmediate 

I  and  the 
anded. 


isanity.  — 

isanify.2 
i  judge  in 
dlliiig  the 
idcnce  of 
of  human 
if  the  his- 
tliis  day, 
sliand,  or 
trong,  no 
ity,  could 
■fully  and 
.'r  against 
the  help, 
ther  have 
5  disposi- 
iniacy  of 
furnishes 
ninate  in 
the  inini- 
1  excite- 
ortion  of 
amily  or 
lurderof 
"e  is  too 
i  may  be 
is  court 
tried  in 
fc;  both 
as  tried 
rof  the 

's  Caoe,  ft 
!,12X.Y. 


year  before  last,  a  man  was  tried  before  me  in  iJroolilyn,  who  stabbed  his  wife, 
his  motlier  and  liis  sister,  all  tlie  i)crsons  present.  The  wife  and  niotlier  were 
killed  on  tlie  spot;  the  sister,  tliougii  dangerously  wounded,  survived  to  tell 
the  story  on  the  witness  stand.  It  was  done  in  broad  daylight,  and  the  culprit 
immediately  walked  out  of  tlie  house  and  surrendered  himself  up,  declaring  his 
readiness  to  suffer  the  penalty  of  his  crimes.  No  insanity  api)eare(l  in  the  case 
and  he  was  executed  in  January,  1852.  To  say,  therefore,  that  a  man  will  not 
kill  his  relations  unless  he  is  insane,  is  ecpilvah  nt  to  saying  that  he  will  not 
commit  crime  unless  he  is  insane;  or  in  other  words,  tliat  there  is  no  such 
thing  as  crime,  inasmuch  as  its  wickedness  proves  its  innocency;  it  is  hardly 
necessary  to  add  that  such  a  doctrine  is  Kul)verslv(!  of  all  order  and  safely,  and 
does  away  with  the  whole  administration  of  criminal  justice,  and  is  just  worthy 
of  the  source  Avhence  it  originated,  namely,  among  French  intldels,  and  German 
metaphysicians  and  trauscendeutalists." 

§  77.  Evidence  of  Wife's  Adultery  Relevant,  When.  —  i;vi(lence  of  informa- 
tion  to   the   prisoner   of   his   wife's  adultery   is   admissil)le  to  show  that  he 
committed  a  nnirder  in  a  state  of  frenzy,  only   where    it  is   shown   that  the  in- 
formation was  given  so  near  the  time  of  conunitting  the  crime  that  the  court 
can  see  that  there  was  not  a  sullicient  period  for  the  passion,  it  would  natu- 
rally excite,  to  abate. i     In  Snu'iirry.  State'^  evidence  that  the  deceased  (the 
prisoner's  wife)  had  for  a  long  time  been   having    criminal   intercourse  with 
other  persons,  and  that  the  prisoner  had  for  a  long  time  been  cognizant  of  this, 
was  held  inadmissible  by  itself  as  tending  to  show  insanity.     In   Guptig  v. 
titate^  the  judge  instructed  the  jury  in  these  words:     "  If  the  jury  should  llnd 
from  the  evidence  that  there  is  a  reasonable  douI)t  whether  the  defendant  has 
been   subject   to   attacks  of  ei)ilepsy,  and  if  this  fact  (if  so  found)  has  been 
suppknent'Hl  by  testimony  of  expert  witnesses  establishing  to  the  satisfaction 
of  the  jury  ^'evidence  raising  a  reasonable  doubt  being  sullicient)  that  epilepsy 
is  a  disease  which  tends  to  produce  insanity,  this  evidence  vunild  not  be  sufficient 
to  raise  a  reasonable  doubt  of  his  sanity  at  the  time  of  the  alleged  commission  of 
the  homicide.    There  must  be  sulUcieut  evidence  to  raise  a  reasonable  doubt 
of  actual  insanity  at  the  time  of  the  alleged  commission  of  the  offence."    This 
instruction  was  held  to  be  erroneous.     Referring  to  the  ruling  in  Sawyer  v. 
State,  the  court  said:  "There  are   some  important   distinctions  between  this 
case  and  the  one  before  us.     It  is  clear  that  the  fact  that  Sawyer's  wife  had 
been  committing  adultery  with  Kii)bs  and  other  men,  and  that  Sawder  knew 
the  fact,  would  not  tend  to  produce  the  di^sease  of  insanity  in  Sawyer.     It  might 
very  much  enrage  or  distract  him  temporarily,  but  would  not  tend  to  produce 
insanity  as  a  disease.    This  is  a  very  different  statement  from  the  facts  sup- 
posed in  the  instruction  we  are  considering,  namely,  that  Guetig  had  attacks 
of  epilepsy,  and  that  epilepsy  tended  to  prove  insanity.    Besides,  in  the  Sawyer 
Case  the  question  was  one  upon  the  admissibility  of  evidence,  which  is  solely 
for  the  court  to  decide.    The  question  in  the  present  case  is  one  upon  the 

1  Sanchez  v.  People,  22   N.  Y.  147  (1860),  7  Abb.  Pr.  (x.  8.)  321  (1868);  State  v.  John,, 

aflliming  on  this  point  Sanchez  v.  People,  8  Ired.  (L.)  330  (1848). 

4  Park.  535,  reported  sub.    noin.  People  v.  =  35  ind.  80  (1871). 

Sanchez,  18  How  Pr.  72  (1859) ;  Cole's  Trial,  '  63  Ind.  278  (1878). 


858 


EVIDENCE   AND    PHACTICE. 


Notes. 


insufflclcucy  of  the  evidence  to  prove  a  given  fact,  wlilcli  is  solely  for  the  jury 
to  decide.  *  ♦  ♦  ry\^^,  instruction  complained  of,  compactly  stated,  plainly 
means  tliat  if  the  appellant  has  been  subject  to  attacks  of  epilepsy,  and  epilepsy 
is  a  disease  which  tends  to  produce  insanity,  these  facts  are  not  sufllcient  to 
raise  a  reasonable  doulit  of  his  sanity  at  the  time  of  the  allej^ed  commission  of 
the  homicide.  It  is  not  clear  in  the  statement  of  the  time  of  the  attack  of 
the  ei)ilepsy  in  relation  to  the  time  of  the  commission  of  the  offence.  For 
aug'iit  that  the  instruction  says  In  words  It  might  be  understood  to  mean  that 
If  tlie  appellant  had  attacks  of  epilepsy  on  the  day  the  deed  was  done  (a  fact, 
indeed,  which  tiie  evidence  tends  to  prove),  or  an  hour  before,  or  even  at  the 
time  it  still  would  not  be  sulliclent  to  raise  a  reasonable  doubt  of  his  sanity  at 
the  time,  the  homicide  was  committed.  Such  a  view  would  be  plainly  erroneous. 
The  Instruction  is  also  erroneous,  because  It  directly  states  that  certain  evi- 
dence which  is  legitimately  before  the  jury  Is  not  sufllcient  to  prove  a  certain 
fact  or  to  raise  a  reasonable  doubt  of  a  certain  fact.'  'i 

§  7S.  Declarations  not  Res  Gestee  Inadmissible.  —  The  declarations  of  the 
prisoner  unless  res  (jesUn  are  inadmissible.  So  It  was  held  in  State  v.  Scott"  that 
where  a  prisoner  had  connnitted  homicide  at  ten  o'clock  at  night  evidence  of 
what  he  said  next  morning  was  inadmissible  to  prove  his  insanity.  "  We  un- 
derstand the  rule  to  be,"  it  was  said  in  a  subsequent  case  in  the  same  State, 
"  that  a  party  charged  with  a  crime  can  never  i)ut  in  evidence  in  his  own  be- 
half  any  declarations  of  his  after  its  commission,  not  even  iu  support  of  Insan. 
ity  as  a  defence,  unless  as  a  part  of  tiie  res  (/estw.  to  some  act  which  is  admitted 
in  evidence."  ^  Tlie  prisoner's  declarations  made  after  the  commission  of  the 
crime  that  he  was  sane  when  he  committed  It  arc  admissible  against  hini.i 
Declarations  of  the  deceased  that  the  prisoner  was  insane  are  irrelevant.*  In 
a  rennsylvania  case  it  was  held  not  error  to  refuse  evidence  that  the  deceased 
had  said:  "  My  husband  shot  me,  but  I  don't  want  him  punished,"  for  the  pur- 
pose of  showing  that  she  believed  him  insane  and  not  accountable  for  his  ac- 
tions." 

§  70 .  Confldential  Communicationa  Between  Husband  and  Wife  —  Testi- 
mony as  to  Insanity  not  within  the  Rule. —  In  United  States  v.  Guiteau,''  a 
Mrs.  Dunmore,  who  had  been  married  to  the  prisoner  in  July,  18G9,  and  was  his 
wife  for  four  years,  but  at  the  time  of  the  crime  and  the  trial  w'as  divorced  from 
him  and  married  to  another  man,  was  called  as  a  witness  for  the  prosecution, 
and  asked  Avhether  in  her  association  with  the  prisoner  she  had  ever  seen  any- 
tliing  that  would  indicate  that  he  was  insane.  It  was  objected  that  her  answer 
would  infringe  the  rule  regarding  confldential  communications  between  hus- 
band and  wife.  The  court  allowed  the  question  and  the  witness  answered  that 
she  never  had.  On  appeal  tlie  ruling  was  affirmed.  "The  question,"  said  the 
Supreme  Court,  "called  for  the  witness'  observation  of  the  defendant's  sound- 


1  The  court  is  not  bound  to  hear  evidence 
upon  wliicli  to  ground  a  in-esuniption  of  the 
possible  insanity  of  tlie  prisoner,  until  di- 
rect evidence  of  tlie  prisoner's  insanity  has 
been  given.  Laros  v.  Com.  84  Pa.  St.  200 
(1877). 

2  1  Hawks.  24,  (1820). 


3  State  V.  Vanr.,  82  N.  C.  631  (1880). 
*  State  V.  Krin,?,  74   Mo.  612  (1881) ;  Gui- 
teau's  Case,  ante. 

6  State  V.  Spencer,  21  N.  J.  (L)  196  (1846). 
8  Sayres  v.  Com,,  88  Pa.  St.  291  (1879). 
'  1  Mackey. 


I 


CONFIDENTIAL   COMMUNICATIONS . 


85y 


Acts  and  Conduct  at  other  Times. 


tor  the  j  ury 
ted,  i)luinly 
nd  epilepsy 
ufflcient  to 
mission  of 
e  attack  of 
ence.    For 
mean  that 
ne  (u  fact, 
■en  at  the 
H  sanity  at 
L'rroneous. 
jrtain  evi- 
;  a  certaiii 

3ns  of  the 
Scott "  that 
vidence  of 

"  We  un- 
ime  State, 
Is  own  be- 

of  insan. 
1  admitted 
ion  of  the 
inst  liini.i 
■ant.*  In 
deceased 

the  pur- 

■  his  ac- 


—  Testl- 

uiteau,"'  a 
1  was  his 
ccd  from 

edition, 
cen  any- 

answer 
en  hus- 
I'ed  that 

aid  tlie 

sound- 

1);  Gul- 

)6  (1846). 
79). 


•ncss  or  unsoundness  of  mind,  and  the  objection  goes  partly  on  the  "iround  tliat, 
notwithstandin*^  tlie  ruling  of  the  court  that  conlldentlal  cDUinuiuieations  be- 
tween the  liusband  and  wife  were  protected,  slie  may  have  included,  as  .  part  of 
tlie  bias  of  her  answer,  what  are  understood  as  communications  from  lier  former 
husband.  We  think  that  the  exhil>ition  of  sanity  or  insanity  is  not  a  eonnnuid- 
catlon  at  all,  in  the  sense  of  the  rule  which  protects  tlie  privacy  and  conildencc 
of  tlie  marriage  relation,  any  more  tlian  the  lieight  or  color,  or  blindness,  or  the 
loss  of  an  arm  of  one  of  the  parties  is  a  communication.  The  rule  which  is  sup- 
posed to  have  lieen  violated  was  established  in  order  that  the  conduct,  the  vol- 
untary conduct,  of  married  life  might  rest  secure  upon  a  basis  of  peace  and  trust, 
and  relates  to  matters  which  the  parties  may  elect  to  disclose  or  not  disclose. 
It  was  provided  in  order  th:it  matters  should  not  come  to  the  light,  which  would 
not  do  so  at  all  without  a  disturbance  and  disregard  of  the  bond  of  peace  and 
confidence  between  the  married  pair.  Therefore  it  has  not  been  applied  to  any 
matter  which  the  husband,  for  example,  has  elected  to  make  public,  by  doing  or 
saying  it  in  tlie  presence  of  third  persons  along  with  liis  wife;  and  it  cannot  be 
applied  to  that  which,  whether  he  will  or  no,  he  inevitably  exhiiiits  to  the  world 
as  well  as  to  liis  wife.  Some  diseases  a  husband  may  conceal,  and  he  may  clioose 
whether  to  reveal  them  or  not.  If  he  should  reveal  the  existence  of  such  a  dis- 
ease to  his  wife,  in  the  privacy  of  their  relation,  slie  may  never  disclose  that 
communication,  even  after  the  relation  lietween  them  has  ceased.  But  sanity  or 
insanity  are  conditions  which  are  not  of  choice,  and  when  the  disease  of  insanity 
exists,  the  exhibition  of  it  is  neither  a  matter  of  voluntarily  confidence  nor  capa- 
ble of  being  one  of  the  secrets  of  the  marriage  relation.  The  fact  that  there  are 
instances  of  cunning  concealment  for  a  time,  does  not  affect  the  general  truth 
that  insanity  reveals  itself,  whether  tJie  sufferer  will  or  no,  to  friends  and  ac- 
quaintances as  Avell  as  to  the  wife.  In  short,  the  law  cannot  regard  it  or  protect 
it  as  one  of  tlie  peculiar  confidences  of  a  particular  relation.  It  may  be  added 
that  it  is  diflicult  to  jierceive,  in  any  view  of  tliis  subject,  liow  the  witness'  de- 
nial that  she  had  seen  indications  of  insanity  can  be  said  to  reveal  any  fact  whicli 
her  husliand  had  communicated  to  her.  If  our  opinion  that  sanity  or  insanity 
cannot  be  a  communication  within  the  meaning  of  the  rule  should  be  Avroiig,  it 
must  be  remembered  that  sanity  is  a  presumption  of  law,  and  that  the  wife  would 
seem  to  reveal  nothing  to  the  world,  unless  she  should  say  that  the  cxisccnce  of 
insanity  in  her  husband  had  been  communicated  to  her  liy  his  conduct  during 
their  connection.  We  are  of  opinion  that  no  error  was  committed  in  receiving 
this  evidence." 

§  80.  Evidence  of  Acts  and  Conduct  at  other  Times.  —  Tlie  prisoner's  acts 
and  conduct  at  times  other  than  that  at  Avhich  the;  crime  was  committed  are 
receivable  in  evidence. i  Where  the  sanity  of  a  prisoner  is  at  issue,  a  letter 
written  hy  him,  prior  to  the  commission  of  the  alleged  offence  is  admissible  in 
evidence  to  throw  light  on  the  condition  of  his  intellect  at  the  time  of  the  act 
charged.  If  destroyed,  secondary  evidence  of  its  contents  may  be  given.'-  In  a 
Georgia  case  it  was  held  tliat  evidence  of  a  conversation  subsequent  to  the  act 


1  Com.  V.  Pomeroy,  117  Mass.  143  (187.5) ; 
State  V.  Kelly,  57  N.  II.  549  (1876) ;  Guiteau's 
Case,  10  Fed.  Rep.  161 ;  State  r.  Hays,  22  La. 
Ann.  39  (1870);  U.  S.  v.  Holmes,  1  Cliff.  98 
(1858). 


=  State  V.  Kring,  64  Mo.  591  (1877) ,  over- 
ruling on  this  point  State  v.  Kring,  1  Mo. 
(App.)  438  (1876). 


'Iv 


860 


EVIDENCE   AND    PRACTICE. 


Notes. 


churgc'd  was  inudinissil)lo  to  piuvc  the  cU-femlant's  insanity ;  and  so  are  tests 
made  l)y  one  not  an  expert  at  liie  time.'  In  a  Delaware  case,  an  odd  coileetion 
(if  various  articles  of  no  novelty  or  value,  even  as  curiosities,  wldeh  the  prisoner 
liad  made  from  time  to  time,  and  had  long  preserved,  with  a  view  of  starting  a 
museum,  were  allowed  under  the  plea  of  insaidty  to  l)e  i)roduced  and  sliown  to 
the  jury .2  Where  tiie  defence  was  that  tlie  homicide  charged  had  l)een  committed 
by  the  prisoner  under  the  insane  delusion  that  the  deceased  and  others  were 
engaged  in  a  eonsi)iracy  against  him,  expressions  of  hostile  feelings  toward  the 
prisoner  made  by  the  deceased,  though  not  shown  to  have  been  made  in  the  de- 
feuilant's  presence,  nor  to  have  come  to  his  l<nowledge,  were  held  admissible 
for  the  purpose  of  showing  the  state  of  nund  of  the  deceased  toward  the  pri.s- 
oner  at  the  time,  and  this  tendency  to  show  some  real  grounilfor  the  prisoner's 
feeling  toward  the  deceased.'  Preparations  made  by  a  person  to  commit  the 
crime  are  relevant  on  the  question  of  sanity  and  premeditation.*  IJut  omitting 
to  attempt  to  escape  after  a  crime  is  not  conclusive  evidence  of  insanity.'' 

§81.  Insanity  cannot  be  Proved  by  Reputation.  —  The  insanity  of  the  pris- 
oner cannot  be  proved  by  the  testimony  (jf  witnesses  that  he  was  generally  re- 
garded as  a  man  of  unsound  mind,  and  tiiat  his  reputation  was  that  of  a  ''.erson  of 
unsound  mind  before  the  connnission  of  the  alleged  offence."  Therefore  evidence 
offered  by  the  accused  that  "his  father  was  reputed  in  the  neighborhood  where 
he  tlwelt  tu  be  at  times  insane  "  is  properly  rejected.' 

§  S2.  Previous  and  Subsequent  Insanity.  —  The  insanity  must  be  shoAvn  to 
exist  at  the  time  the  deed  was  done  —  previous  or  subsequent  insanity  is  no  ex- 
cuse.* But  it  is  obvious  that  in  very  many  cases  the  insanity  of  the  prisoner  at 
the  instant  of  the  commission  of  the  offence  can  only  be  established  by  evi- 
dence tending  to  prove  that  he  was  insane  at  some  period  before  or  afterward. 
Therefore  evidence  of  the  mental  condition  of  theprisoner  both  before  and  after 
the  act  is  admissiljie.'"  "  I'revious  or  subsequent  insanity  is  no  defence,  unless 
it  existed  at  the  time  tlie  act  was  done.  Yet  we  cannot  reject  evidence  to 
prove  insanity  either  before  or  after  the  act,  for  such  evidence  is  proper  to  be 
weiglied  by  the  jury  in  coming  to  a  conclusion  whether  insanity  existed  at  the 
time  tlie  act  was  ilone."  •' 

In  Vance  v.  Commomcealth,^'^  it  was  held  that  where  a  prisoner's  defence  is 
insanity,  evidence  to  prove  insanity  before  the  act  was  connnitted  is  proper  with- 
out first  proving  the  insanity  rt<  the  time  of  the  commission. 

Where  ther?  L-  a  question  of  the  prisoner's  sanity  at  the  time  of  the  trial, 
which  is  submitted  to  the  jury,  who  And  him  sane,  when  he  is  afterwards  put  on 
trial  for  tht  ■'rae,  all  evidence  as  to  his  sanity  at  the  time  of  the  trial  is  inad- 
missible which  does  not  go  to  prove  his  insanity  at  the  time  of  the  commission 


1  Choice  ..  Stnte,  31  Ga.  424  (1860). 
"  State  V.  West,  1   lloust.    Cr.  Gas.  371 
(1873). 

3  Com.  t'.  Wilson,  1  Gray,  337  (18o4). 

4  Cole's  Trial,  7  Abb.  Pr.  (N.  S.)  .321  (1868). 
*  Lake  v.  People,  1  Park.  495  (ia54). 

6  r.rinkley   v.  .State,  58    Ga.   296    (1867) ; 
Choice  f.  State,  31  Ca.  424  (1860). 


■  State  V.  Hoyt,  47  Conn.  518  (1880). 
e  State  v.  Hays,  22  La.  Ann.  39  (1870). 
»  People  V.  March,  6  Cal.  543  (1856). 

10  Russell  V.  State,  63    Miss.  367  (1876) ; 
State  V.  Felter,26  Iowa,  67  (1868). 

11  McAllister  r.  State,  17  Ala.  434  (1850) ; 
McLean  v.  State,  16  Ala.  672  (1849). 

12  2  Va.  Cas.  132  (1818). 


PREVIOUS    AXU    SIDSEQUENT    INSANITY. 


8G1 


rresuinplioii  <>f  ('oiitliumiirc  of  Insanity. 


of  tho  crime. 1  It  liii.s  l)t'en  held  that  it  is  t'()ni|)C'tL'nt  for  tlie  proseatlion,  af/ninst 
the  prisoner'' s  ohjietinn^Ui  \\\ivo<\\um  ayMKiniiv  tliat  lie  was  intoxicated  a  sliort 
time  previous  to  tlie  eoniniissiou  of  tlie  offence  charfjed,  i);'ovided  sncii  testi- 
mony nial<es  it  i)rol)al)le  tliat  tlie  intoxication  continued  and  existed  at  llie  time 
the  alleged  criminal  act  was  done. 2 

In  Warren  v.  State,'^  tlie  |)risoner  was  on  trial  for  murder,  tlie  defence  relied 
on  being  insunity  and  mental  hallucinations  and  delusions.  The  court  cliaiged 
the  jury  almost  in  the  language  of  Mr.  tireenleaf.'  Tliis  cliargi;  tlie  Court  of 
Appeals  approved.  I{ut  tlie  trial  court  refused  to  give  tliis  instruction  which 
■was  iisked  l)y  tho  defendant.  "That  In  deteniiiniiig  tlie  insanity  of  tiie 
defendant  at  the  time  of  the  killing  of  M.  (If  tlie  defendant  did  kill  M.), 
the  jury  are  autliorized  to  look  at  all  the  facts  and  clreiiiiistanccs  in 
evidence  before  them  relating  to  the  question  of  defendant's  sanity  —  tliat  is, 
all  the  facts  and  circumstances  relating  to  llie  defendant's  mental  condition 
after  and  since  the  killing,  as  well  as  the  facts  and  circumstances  relating  to 
defendant's  mental  condition  before  tlie  killing."  On  appeal,  it  was  luld  that 
this  instruction  should  have  been  given.  "  Testimony,"  said  Wiiiri;,  C.  J., 
"that  defendant  had  exhibited  evidences  of  insanity  since  the  iioiiiiciih-  and  up 
to  the  time  of  trial,  as  well  as  before  the  killing,  had  been  adduced  and  prop- 
erly laid  before  the  jury,  and  the  jury  should  have  been  instructed  that  they 
were  to  consider  it,  along  and  in  connection  witli  tlie  otlicr  testimony,  in  arriv- 
ing at  their  conclusion,  for  It  is  a  rule  of  law,  that  evidence  of  the  state  of  the 
mind  of  the  party  both  before  and  after  the  act  done  is  admissible  In  determin- 
ing the  question  of  sanity." 

In  Sullivan  v.  People,''  the  prisoner  had  confessed  to  the  crime  charged,  but 
an  effort  was  made  to  avoid  tlie  force  of  the  confession  by  showing  that  he  was 
insane  when  lie  made  it,  though  sane  when  the  crime  alleged  was  committed. 
In  the  Supreme  Court  the  record  stated  simply  that  there  was  evidence  that  he 
was  insane  some  thirty-six  or  forty-eight  hours  after  the  time  of  tiic  confes- 
sion, and  other  evidence  that  he  was  not  insane.  It  was  held  in  the  Supreme 
Court  that  as  there  was  no  evidence  that  he  was  insane  at  the  time  of  the  con- 
fession, the  rulings  of  the  trial  court  on  the  question  of  sucli  insanity,  the 
burden  of  proof,  and  the  nature  of  the  evidence  on  the  subject,  ^vere  immaterial 
and  could  not  be  assigned  for  error. 

It  is  error  for  the  court  to  instruct  tlie  jury  to  take  into  consideration  the 
physical  appearance  of  the  prisoner  at  the  trial  in  deciding  as  to  his  .sanity  at 
the  time  of  the  crime." 

§  82  a.  Continuance  of  Insanity  —  Presumption.  —  Insanity  once  proved  to 
exist,  is  presumed  to  continue  until  a  lucid  interval  is  shown.'  In  iState  v. 
Fann,** it  was  conceded  that  the  prisoner  was  violently  insane  shortly  before  tlie 
homicide,  and  was  then  of  unsound  mind,  but  it  was  insisted  that  at  the  time 


1  Sliultz  V.  state,  13  Tex.  401  (18.55). 

2  Pierce  v.  Stale,  5:?  Ga.  Sno  (lS7t). 

3  !)Tex.  (App.)  019  (1880). 

4  2  Greenl.  on  F^v.,  sect.  ;!72. 

6  31  Mich.  1  (1875) ;  Aconression  made  when 
insane  is  no  evidence  of  guilt.  People  v. 
"Wreden,  59Cnl.  341  (ls81). 


'">  Bowden  v.  People,  1-2  IIuii,S5  i;i'^'77). 

■  Stater.  Spencer,  21  N.J.  (L.)  I'.Ki  (184<i) ; 
Iladtleld's  Case.  Slate  v.  Jolmson,  40  Conn. 
130  (1873) ;  State  r.  P.rown,  1  IIou.st.  Cr.  ('as. 
5:11)1,1878);  but  see  People  r.  Sniitli,  57  Cal. 
130  (1880). 

i^  8-2  X.  C.  031  (1880). 


8fi2 


KVIDKNCE    AND    PUACTICK. 


Notes. 


of  till'  cojiiinlsslon  of  the  offence,  he  hud  ii  lucid  interval  iind  was  respoiislhk' 
for  his  acts.  The  i)rlsoner  asked  the  foMowinfj  instruction:  "If  the  Insanity 
of  tile  prisoner  shortly  before  the  homicide,  he  admitted  or  found  by  the  jury, 
before  tiie  jury  can  convict  the  State  must  jirove  beyond  a  reasonable  doubt 
that  at  tile  linuMif  (lie  iiomlcidc  tiie  prisoner  liad  a  lucid  Interval,  and  was  in 
such  a  nieiital  condition  as  to  mal<e  hlni  responsible  for  ids  acts."  This  tlie 
court  refused,  but  told  the  jury  that  If  the  insanity  of  tli((  prisoner  shortly 
before  the  crime  were  found  by  them,  then  It  was  the  duly  of  tlie  State  to  show 
not  beyond  a  reasonable  doubt,  nor  by  a  preponderance  of  evideu(!e  but  t(j  the 
satisfaction  of  the  jury  tiiat  at  the  time  of  the  homicide  lie  had  such  a  lucid  Inter- 
val. On  appeal  this  ruiiiiy  wasapproved :  "  In  an  indictment  for  ninrder."  said 
nii.i.AHi),  J.,  "  the  two  constituents  of  tlus  criiiie,  to-wit,  a  voluntary  killliii^ 
and  malice  afon'thought,  must  be  proved  by  the  State,  as  it  makes  the  charjje; 
and  as  the  accused  is  presumed  to  lie  innocent  until  liie  contrary  is  shown,  liotii 
of  these  elenieiits  must  be  proved.  Tlie  killinj;  lieiiin  shown,  then  the  otiier 
Ingredient,  malice,  Is?  al.so  proved  as  a  fact  in  the  eyes  of  the  law,  not  by  evi- 
dence adduced,  but  by  a  presumption  that  the  law  makes  from  the  fact  of  tlie 
kllllnjr,  and  these  two  essential  facts  belnu;  thus  established,  the  legal  conclusion 
tliereon  is,  that  the  offence  charged  Is  murder.'  Hut  the  impllcatlou  of  malice 
made  by  the  law  and  taken  as  a  fact,  Is  not  conclusive  on  the  party  accused,  but 
may  be  rebutted.  He  may  show,  If  he  can,  by  his  i)roofs,  that  there  was  no 
malice  prepense,  and  thereby  extenuate  to  manslaughter,  or  make  a  case  of 
justlllable  or  excusal)le  homicide,  or  a  case  of  no  criminality  at  all  by  proof  of 
insanity  at  the  time  of  tlie  act  comniitted,  disabling  him  to  know  right  from 
wrong.'  The  burden  lies  on  the  accused  to  make  these  proofs,  If  he 
can;  otherwise  the  conclusion  of  murder,  on  a  malice  Implied,  will  con- 
tinue against  him  and  will  call  for,  and  in  law,  oljlige  u  conviction  by 
the  jury.  And  in  the  making  of  such  extenuating  or  acquitting  proofs, 
the  law  puts  on  him  the  onus  to  do  so,  not  excluding  all  reasonable 
doubts,  but  merely  to  the  extent  of  satisfying  the  jury.  There  are 
respectable  authorities  which  hold  that  mental  competency  of  the  accused  is 
one  of  the  constituent  elements  of  the  crime  imputed,  and  that  when  that  Is 
controverted,  it  must  be  shown  beyond  a  reasonable  doulit  in  the  minds  of  the 
jury.  ]?iit  such  is  not  the  law  of  this  State.  The  doctrine  with  us  is  well 
established,  tliat  when  there  is  a  voluntary  killing  as  is  admitted  in  this  case, 
the  law  presumes  malice,  and  makes  the  crime  murder,  unless  as  j.  ■•  ■ 
explained,  tlie  accused  can  and  does  repel  the  same  by  evidc  "  <  '  lis  own  or 
by  legal  inferences  from  the  surrounding  and  attending  cir(  >      By  your 

decisions,  matters  of  extenuation  and  excuse,  or  discharg'  ,  ason  of  Insar 

ity,  must  be  shown  by  him  wlio  sets  it  up;  otherwise  the       i)lied  malice  con- 
tinues, and  the  case  remains  in  tlie  judgment  of  the  law  a  ense  o*    murder. 
This  case  (Willis')  was  carefully  considered,  and  in  view  of  our  oww  decisions 
and  the  crown  law  of  England,  and  after  commenting   on    Commonwealth  v. 
York,^  and  the  dissenting  opinion  therein  of  Wildk,  J.,  a  conclusion  is  reached,  ill 


1  Foster's  Crown  Law,  25.5;  East  P.  C. 
224  ;  State  r.  Willis,  o;(  N.  C.  26. 

-  See  Foster  ami  other  auiliorities,  sK/jra. 


^  State  V.  Willis,  supra. 
<  9  Mete.  !)3. 


rUKSUMlTION  OF  COXTIMUANCE  OF  INSANITY.       803 

Temporary  lusaiilty. 


harmony  with  provlous  riilltiKS  in  tlilHcotirf,  that,  matters  of  mltii»atli>n,  excuse, 
or  jiistllleation  must  always  conu;  from  him  wlio  claims  the  lu-iietlt  thereof,  am! 
must  bo  proved  not  Ix-yoml  ii  reasonable  doubt,  l)ut  only  to  the  satisfaction  of 
a  jury;  and  to  this  caso  we  assent,  as  controlling  the  case  under  consideration. 
Ai)plylujJC  tluj  prluciplo  al)ovo  enunciated  and  estal)llshe(l  i»y  Willis^  Cusp,  the 
prisoner,  by  tlu;  voluntary  Ixllllui;  of  (iatlinii,  adndtled  by  himself,  and  tlie  con- 
sefpieut  Implied  malice,  went  to  trial  with  tho  Icf^al  conclusion  of  murder 
af;alnsthlm;  and  to  have  accpilttcMl  himself  it  would  have  i)een  lncund)ent  on 
him  to  have  proved  an  habitual  or  permanent  Insanity  before  tiie  homicide,  and 
If  the  fact  of  its  exlstcnco  orisiinally,  or  its  presumed  contluiuince  at  llu;  time 
of  tlie  killing,  was  controverted  by  tho  evidence  of  the  State,  he  would  have  had 
to  show,  and  that  by  evidence  satisfactory  to  tho  jury,  at  least,  the  fact  of  a 
continuance  of  insanity  at  the  time  lu!  slew  the  deceased ;  orfailinsso  to  do 
tho  le^al  conclusion  from  malice  lmi»lled  would  have  Htiil  remained  and  his 
offence  would  still  have  been  murder.  Now  on  tlie  trial,  the  Slatt!  dlsiiensed 
wltli  proof  by  the  prisoner  of  insaidty  at  a  day  anterior  to  tlie  homicide  by 
admitting  that  nnich  for  him,  and  thereby  the  issue  was  reduced  to  tho  sinjile 
fact  of  tho  existence  or  non-existence  f)f  prisoner's  Insanity  at  tlm  time  of  tlie 
killing.  Upon  that  point,  evidence  was  Introduced  by  tlie  Stale  tending  to  show 
tlie  non-exhstcncc  of  insanity,  and  the  prisoner  did  or  might  have  Introduced 
testimony  In  aid  of  the  presumption  already  in  ills  favor  from  the  admission  of 
insanity  before  tho  homicide.  In  order  U)  satisfy  the  jury  of  the  existence  of  his 
Insanity  at  the  time  of  the  killing,  anil  tho  prisoner  falling  to  satisfy  tho  jury 
of  tho  truth  of  Ills  defence,  there  remained  then  the  fact  of  tlio  voluntary  act  of 
killing  and  with  malice  implied,  and  this  in  point  of  law,  made  tin;  (;rimo  nuir- 
der.i  After  a  careful  investigation  of  the  sevf-'al  exceptions  taken  by  tho 
prisoner,  Ave  arc  unable  to  discern  any  error  of  law  on  tlie  trial,  and  we  must  so 
declare,  and  this  will  be  certilled,  to  the  end  that  the  sentence  of  the  law  may  be 
executed." 

It  is  only  habitual  insanity,  which  once  proved  to  exist,  the  law  presumes  to 
continue;  the  presumption  does  not  ai)i)ly  to  a  temporary  insanity  resulting 
from  some  transient  cause'' or  drunkcteess.^  If  a  jierson  bo  proved  to  have 
had  on  a  particular  occasion  a  paroxjsm  of  mania  a  potti,  or  delirium  caused  i)y 
fever,  or  by  sudden  and  severe  mental  agony,  there  would  bo  no  presumption 
tliat  the  same  state  of  mind  continued  after  the  exciting  cause  was  removed. 
On  tho  contrary  the  presumption  would  bo  that  tho  mind  was  restored  to  Its 
normal  condition  when  tho  disturbing  element  liad  ceased  to  operate.  In  Peo- 
ple V.  Francis,*  the  defendant  asked  tho  court  to  instruct  tho  jury  that  "  insan 
ity  once  shown  to  exist  was  presumed  to  continue  until  tho  contrary  was 
.shown."  In  the  Supreme  Court  it  was  said :  •'  If  the  term  insanity,  as  emploj'od 
in  these  instructions  is  to  bo  con.strued  as  referring  to  a  general  unsoundness 
of  the  mind,  and  not  to  an  aberration  of  a  temporary  nature  proceeding  from 
some  transient  cause,  then  the  instructiijus  correctly  state  the  law.  »  *  * 
The  vice  of  these  instructions  is  that  they  state  the  proposition  too  l)roadly. 


1  state  V.  Willis,  sujtra;  Com.  v.  Eddy, 
7  Gray,  583. 

2  State  V.  Scwell,  Z  Jones  (T..),245  (1855) ; 
State  V.  Reddirk,  7  Kas.  144  (1871). 


3  Id. 

<38Cal.  183(18f9). 


864 


EVIDENCE   AND   PRACTICE. 


Notes. 


As  we  have  shown,  every  species  of  insanity  is  not  presumed  to  continue  until 
the  contrary  is  sliown,  but  only  a  general  habitual  insanity,  not  proceeding  from 
a  transient  cause,  uiul  if  the  instructions  had  been  properly  qualified  in  this 
respect  tliey  ought  to  have  been  given.  But  in  the  iorm  iu  which  they  were 
offered,  they  were  properly  refused." 

§  83.  Evidence  »5f  Insanity  in  Relatives.  —  Where  the  defence  is  hereditary 
insanity,  the  mental  condition  of  tiie  prisoner's  immediaLe  relatives  is  relevant ;! 
e.g.,  that  his  mother,  or  aunt,-' his  brothers  or  sisters, ^  or  his  father,  was  in- 
sane.' But  insanity  in  the  prisoner's  family  is  irrelevant  where  there  is  no  evi- 
dence that  he  himself  is  insane.^  Where  there  is  no  evidence  that  a  prisoner 
ever  exhibited  any  signs  of  Insanity,  evidence  that  some  of  his  uncles  and  aunts 
were  insane  is  inadmissible."  Evidence  of  the  insanity  of  the  mother  and  uncle 
or  other  relatives  of  the  prisoner  must  i.  i  disregarded,  if  there  is  no  other  evi- 
dence tending  to  show  that  he  was  himself  insane  at  the  time  he  did  the  act 
charged.' 

In  i^late  v.  Simms,^  the  defendant  was  indicted  for  the  murder  of  James  Reese, 
the  defence  being  insanity.  On  the  trial  the  court  instructed  th^  jury  that  the 
fact  that  some  or  all  of  a  person's  ancestors  have  been  insane  docs  not  of  itself 
prove  that  person  insane,  "and  if  ther  ;  is  no  direct  and  preponderating  evi- 
dence of  insanity  of  defendant  at  the  time  he  killed  Reese,  the  jury  cannot  jus- 
tify or  excuse  the  killing  on  that  plea."  On  appeal  this  Avas  held  erroneous. 
"The  vice  of  that  instruction  is,"  said  IIexrv,  J.,  "that  it  requires  direct 
proof  of  insanity.  What  is  meant  by  th  ;  term  '  direct '  in  that  connection  I 
cannot  tell,  but  it  was  calculated  to  make  an  impression  on  the  minds  of  the 
jury  that  evidence  of  the  insanity  of  one  of  defendant's  aunts  and  two  of  his 
sisters,  which  was  proved,  was  not  worthy  of  much  consideration;  but  the  evi- 
dence must  be  direct  that  defendant  was  insane.  Direct  evidence  would  be  that 
of  medical  experts  that  they  had  exanuned  the  defendant  and  found  nim  insane, 
or  of  persons  who  had  been  familiar  with  him,  and  from  their  personal  obser- 
vation believed  him  insane.  If  the  instruction  means  anything  it  was  intended 
to  exclude  from  the  consideration  •>;  the  jury  all  other  evidence  of  insanity. 
An  act  which  would  not  indicate  the  insanity  of  a  person  in  whose  family  there 
had  been  no  case  of  insanity  might  be  a  very  stiong  circumstance  to  prove  in- 
sane a  person  whose  aunt  had  died  in  a  mad-house."  And  the  court  held  that 
this  erroneous  instruction  was  not  cured  by  another  to  the  effect  that  the  fact 
of  the  prisoner's  insanity  miglit  be  established  by  facts  and  circumstances  ao 
well  as  by  direct  ovluence. 

In  a  Connecticut  case,  the  prisoner  having  introduced  evidence  to  prove  that 
his  sister  had  been  insane  about  six  years,  the  court  permitted  the  prosecution 
to  inquire,  on  cross-examination,  Mhat  caused  the  Insanity,  for  the  purpose  of 
showing  that  it  was  not  hereditary.     On  iii)peal,  this  was  held  proper.     "  Obvi- 


1  Hagan  v.  State,  5  Baxt.  615  (187,5) ;  U.  S. 
r.  Ildlmes,  1  Cliff.  OS  (1858) ;  Guiteau's  Case, 
10  Fed.  l!op.  IGl. 

2  reopli!  V.  .Smith,  31  Cal.  406  (1866), 

8  People  t'.  Garbutt,  17  Mich. '.)  (1868). 
*  State  V.  Felter,  25  Iowa,  67  (1868). 


<•  Cole's  Trial,  7  Abb.  Pr.  (N.  S.)   321  (18G8). 
»  S..ite  V.  Cuiuiiiighain,72  X.  C.  46'.)  (1875). 
f  BratUey  v.  State,  ;!1  lad.  402  (1860). 
8  68  .Mo.  306  (1878). 


CHARACTER   OF    PRISONER   RELEVANT. 


865 


Opeciflc  Acts  of  lusauity — Proof  of  other  Crimes. 


ously,"  said  Loomis,  J.,  "one  of  several  children  might  be  insane  from  manj- 
causes  tliat  could  not  possibly  affect  the  otlicrs.  If,  therefore,  the  testimony  in 
chief  was  relevant  at  all,  wliich  is  doubtful,  there  is  no  possible  ground  for  its 
admissibility,  unless  it  tended  to  show  a  taint  of  insanity  descending  with  the 
parental  blood.  So  that  the  cross-examination  M'as  strictly  legitimate,  as  calcu- 
lated to  furnish  an  instant  and  perfect  test  of  the  value  of  the  testimony."  i 

§  84.  Character. — Where  the  plea  is  insanity,  evidence  of  the  prisoner's  previous 
good  character  is  relevant.*  In  Johnson  v.  State,  tlie  prisoner  being  indicted  for 
burglary  pleaded  as  a  defence  tliat  at  tlie  time  of  the  commission  of  tiie  crime 
his  mind  was  so  beclouded  by  the  excessive  use  of  intoxicating  liquors  as  to 
rendered  him  incapable  of  forming  a  felonious  intent,  and  he  offered  to  prove  his 
general  character  for  many  weelvs  previous  to  the  time  of  the  crime.  The  rejec- 
tion of  this  evidence  was  held  to  be  error.  *'  It  must  bu  supposed,"  said  the 
Court  of  Appeals,  "that  the  offer  to  prove  the  general  cliuracter  of  the  accused 
was  made  Avitli  reference  to  tlie  matter  undergoing  investigation,  and  that  he 
either  sought  to  estnblish  a  character  for  honesty  or  it  was  his  intention  to  con- 
fine the  inquiry  to  his  general  condition  for  several  weeks  previous  to  the  alleged 
commission  of  the  offence  charged,  as  bearing  on  his  mental  capacity  at  the  time 
it  is  alleged  the  offence  was  committed." 

§  85.  Specific  Acts  of  Insanity  Need  Not  be  Shown. —  In  People  v.  Tripler,*  the 
prisoner,  Eliza  Tripler,  was  charged  witli  stealing  five  silver  spoons  from  tlie  house 
of  Mr.  Stoneliale.  Mr.  Stonehale  missed  tlie  spoons,  and  immediately  went  to 
the  silversmiths  in  the  neighborliood  and  gave  them  a  description  of  the  articles 
stolen.  The  prisoner  offered  them  for  sale,  and  was  detected,  taken  to  the  po- 
lice, examined  and  committed  for  trial.  The  spoons  were  proved  to  be  the 
property  of  the  prosecutor,  and  these  facts  were  made  out  to  the  satisfaction  of 
the  court  and  jury.  Tlie  defence  set  up  was  that  the  prisoner  was  at  times  in- 
sane; her  sister  testified  that  she  had  a  fall  some  years  ago,  "  that  affected  her 
head."  Tlie  prosecutor  himself  thought  "  her  conduct  was  strange,"  but  none  of 
the  witnesses  testified  to  any  act  or  acts  of  mental  derangement,  or  pointed  out 
any  particular  manner  of  conduct  to  show  it.  By  tlie  Court:  "Although  the  de 
fence  has  not  been  satisfactorily  made  out,  yet  there  was  quite  enough  made 
out  to  raise  a  doubt  in  the  mind  of  the  court  of  the  prisoner's  being  a  person 
of  sound  mind,  and  wliere  a  doubt  exists,  it  would  always  be  the  safest  way  to 
acquit.  Insanity  itself  is  calamity  enough  without  inflicting  the  pain  of  a  convic- 
tion and  its  consequences.  The  witnesses  have  not  shown  any  particular  act 
whereby  W'e  could  discover  derangement,  yet  it  is  sufl[lcient  to  say  that  a  doubt 
has  been  raised,  and  that  doul^t  ought  to  operate  in  favor  of  the  prisoner."  The 
jury  returned  a  verdict  in  favor  of  the  prisoner,  without  leaving  the  box. 

§  80.  Proof  of  Other  Crimes.  —  As  a  general  rule  where  a  man  is  accused  and  on 
trial  for  one  crime,  the  fact  that  he  has  committed  another  crime  is  not  relevant. 
But  it  has  been  held  that  whers  the  defence  to  a  charge  of  muider  is  insanity, 


1  State  V.  Hoyt,  47  Conn.  518  (1880). 
s  Hopps  V.  People,  31  111.  385  (1863). 

65 


3  1  Tex.  (App.)l!n(13;6). 
*  1  Wheeler,  Cr.  Gas.  49  (1822). 


866 


EVIDENCE  AND  PRACTICE. 


Notes. 


and  the  coolncsf  and  unconcern  of  the  prisoner  at  the  time  he  committed  the 
homicide  are  relied  on  as  justifying  inferences  favcable  to  the  plea,  it  is  competent 
to  show  that  the  prisoner  had  been  in  his  early  life  engaged  in  the  perilous  call- 
ing of  smuggling,  as  tending  to  rebut  the  presumption  tliat  his  deportment  oa 
the  occasion  of  tiie  act  for  which  he  is  charged  was  attributable  to  insanity.^ 

§  87.  Testimony  on  Former  Trial.  —  Where  a  witness  becomes  insane,  his  tes- 
timony on  a  former  trial  is  admissible .' 

The  record  of  proceedings  on  another  trial  in  which  one  of  two  defendants  who- 
are  jointly  indicted  is  adjudged  insane,  is  not  evidence  against  his  co-defendant 
of  the  fact  of  such  insanity  on  a  trial  under  the  indictment.' 

§  88.  Pleadiner— Trial.  —  Under  a  plea  of  "  not  guilty,"  the  prisoner  is  entitled 
to  show  his  insanity  at  the  time  the  crime  was  committed.*  Insanity  is  a  ques- 
tion of  fact  to  be  decided  by  the  jury.*  The  New  Yorli  statute  authorizing  the 
court  to  appoint  a  commissioner  to  pass  upon  the  prisoner's  sanity,  does  not 
talce  away  from  him  the  riglit  to  have  the  question  of  his  sanity  decided  by  a 
jury  under  a  plea  of  not  guilty .< 

§  89.  Bight  to  Open  and  Close.  —  The  plea  of  not  guilty  and  defence  of 
insanity  thereunder  does  not  give  the  defendant  the  right  to  open  and  close  .^ 

§  90.  Judge  need  not  Specially  Define  the  Various  Types  of  Insanity. — In 
Stuart  V.  State,^  it  is  said  by  the  Supreme  Court :  "  It  is  earnestly  argued  that  the 
law  applicable  to  this  defence  was  not  properly  submitted  to  the  jury.  The  charge, 
in  substance,  was  that  the  law  presumed  the  prisoner.  If  over  fourteen  years 
of  age,  to  be  of  sound  mind,  and  the  burden  was  upon  him  to  introduce  proof 
to  show  his  want  of  sanity,  or  to  create  a  reasonable  and  well-founded  doubt 
of  his  sanity,  to  entitle  him  to  an  acquittal.  The  judge,  in  his  charge,  does  not 
use  the  words  mania  a  potu,  delirium  tremens,  or  other  similar  language,  but 
uses  the  words,  "unsoundness  of  mind,"  or  insanity;  the  jury  were  instructed 
that  to  relieve  the  prisoner  it  was  sufficient  to  show  the  unsoundness  of  mind, 
or  create  a  reasonable  doubt  of  the  prisoner's  sanity;  and  this  was  sufficient, 
whether  the  disease  be  permanent  or  temporary,  and  whether  caused  by  the 
voluntary  use  of  ardent  spirits  or  otherwise.  We  do  not  think  it  essential  that 
the  judge  sliould  have  specially  defined  the  various  classes  or  types  of  insanity. 
It  is  the  unsoundness  of  mind  that  excuses  the  act.  According  to  the  proof, 
mania  a  potti  is  a  disease  in  which  the  mind  Is  unsound.  The  language  of  the 
charge  Is  comprehensive  enough  to  embrace  the  particular  classes  of  Insanity 
indicated  by  the  proof.  It  says:  The  •  unsoundness  of  mind  may  be  temporary, 
caused  by  the  use  of  ardent  spirits.'  This  is  what  physicians  call  mania  a  potu, 
or  delirium  tremens,  and  If  the  proof  made  out  a  case  of  mania  a  potu,  it  made 
out  a  case  of  mental  unsoundness.    We  think  in  this  there  was  no  error." 


1  Hopps  V.  People,  31  111.  386  (1863) 

i  Marler  v.  State,  67  Ala.  55  (1880). 

s  Harler  v.  State.  67  Ala.  SS  (1880). 

*  People  V.  Olwell,  18  Cal.  456  (1865). 

^  State  V.  Holme,  64  Mo.  163  (1873),  citinff 


State  V.  Hundley,  64  Mo.  414  (1864) ;  Statu  v. 
Kring,  64  Mo.  691  (1877). 

«  OBtrandcr  v.  People,  28  Hun,  88  (18S2). 

?  Loeifner  v.  State,  10  Ohio  St.  598  (1857) ', 
State  t<.  Felter,  32  Iowa,  49  (1871). 

«  1  Baxt.  180  (1873). 


■ 


itted  the 
)mpetent 
OU8  call- 
tinent  oa 
inity.^ 

,  his  tes- 

lants  who 
lefendant 


s  entitled 
s  a  ques- 
rlzing  the 
does  not 
ided  by  a 


lefence  of 
close.' 

Dlty.— In 
d  that  the 
lie  charge, 
een  years 
uce  proof 
led  doubt 

does  not 
uage,  but 
nstructed 

of  mind, 
efficient, 
by  the 

ntial  that. 

insanity. 

;he  proof, 

ge  of  the 
insanity 

mporary, 

ia  a  potUf 
it  made 


;d 


jr." 

);  Statu  v.^ 

88  (1882). 
598  (1857) ; 


> 


DUir  TO   INSTRUCT  AS  TO   INSANITY. 


S6T 


Jury  may  be  Cautioned  as  to  Defence. 


§  91.  Duty  to  Instruct  on  Insanity  Plea.  —  In  Texas  it  is  held  that  the  court 
should  charge  Sv)ecially  on  the  defence  of  insanity,  however  slight  theeridcnce 
adduced,!  or  whether  asked  or  not.*  Evidence  that  the  accused  is  of  a  lower 
order  of  intellect  than  other  members  of  his  family  is  not,  of  itself,  sufficient  to 
impose  upon  the  court  the  duty  of  charging  the  jury  on  the  subject  of  insanity  J 

§  92.  Jury  May  be  Cautioned  as  to  Insanity  Plea.  —  The  jury  may  be  In- 
structed  that  the  evidence  relating  to  insanity  should  be  carefully  and  intelli- 
gently scrutinized ;  *  that  no  pretended  case  of  insanity  should  be  allowed  to 
shield  a  man  from  the  consequences  of  his  own  acts,  they,  at  the  same  time, 
being  told  also  that  if  one  has  really  committed  an  act  which  is  the  result  of  a 
diseased  or  unsound  mind,  the  defence  of  of  insanity  would  be  a  good  one,  and 
the  prisoner  should  have  the  benefit  of  it.' 

In  a  California  case  the  judge  said  to  the  jury:  "  In  prosecutions  for  crimes,, 
the  defence  of  insanity  is  often  interposed,  and  thereby  becomes  a  subject  of 
permanent  Importance  in  criminal  jurisprudence.  A  due  regard  for  the  ends  of 
justice  and  the  peace  and  welfare  of  society,  no  less  than  mercy  for  the  accused, 
require  that  it  should  be  thoroughly  and  carefully  weighed.  It  is  a  plea  some- 
times resorted  to  in  cases  where  aggravated  crimes  have  been  committed  under 
circumstances  which  afford  full  proof  of  the  overt  acts,  and  render  hopeless  all 
other  means  of  evading  punishment.  While,  therefore,  it  ought  to  be  received, 
as  a  not  less  full  and  complete,  than  it  is  a  humane,  defence  when  satisfactorily 
established,  it  yet  should  be  examined  into  with  great  care  lest  an  ingenious 
counterfeit  of  the  malady  furnish  protection  to  guilt."  This  was  approved  in 
the  Supreme  Court."  In  another  case  the  court  said  to  the  jury:  "  Insanity  is 
a  defence  often  resorted  to,  and  in  most  cases,  when  every  other  ground  of  de- 
fence has  failed.  From  its  nature  it  ou^ht  to  be  received  in  all  cases  by  jurors 
with  the  greatest  degree  of  caution  and  circumspection."' 

In  McKee  \ People,^  it  was  held  proper  for  the  trial  judge  to  say  to  the  jury: 
"  If  you  find  the  prisoner,  at  the  time  Dr.  Bennett  was  observing  him  through 
the  hole  in  the  wall,  as  described  by  the  witnesses,  was  watching  to  see  whether 
he  was  observed,  and  wr/^  regulating  his  conduct  accordingly,  it  would  raise  a 
very  strong  presumption  that  the  prisoner  was  feigning  insanity,  and,  indeed, 
such  evidence  of  design  and  calculation  on  his  part,  as  to  be,  in  my  opinion,  en- 
entirely  fatal  to  this  defence  of  insanity." 

"A  leference  to  Dr.  Bennett's  testimony,"  said  the  court,  "will  show  the  cir- 
cumstai  ces  under  which  he  watched  the  prisoner,  and  were  important  to  de- 
termine whether  the  insanity  imputed  to  the  prisoner  was  feigned  or  real.  The 
doctor  said  he  was  looking  through  the  hole  prepared  so  that  he  might  observe 
the  prisoner,  and  was  looking  through  the  hole  when  the  prisoner  was  put  into 
the  west  side  of  the  jail.  As  soon  as  the  sheriff  closed  the  door,  the  prisoner 
walked  through  the  hall,  going  through  the  same  motions  as  he  had  been  be- 


1  Erwin  «.  State,  10  Tex.  (App.)  700  (1881) ; 
Looney  v.  State,  10  Tex.  (App.)  620  (1881). 

•  Thomas  v.  State,  40  Tex.  60  (1874). 
»  Powell  V.  State,  37  Tex.  348  (1872). 

*  Sawyer  v.  State,  35  Ind.  80  (1871) ;  Quetlg 
V.  State,  63  Ind.  278  (1878). 


i>  People  V.  Bumberger,  45  Cal.  650  (1873). 
•  People  V.  Dennis,  39  Cal.  626  (1870). 
'  Sellick'B  Case,    1  Citr  UaU  Rec.  18S 
(1816). 

e  36  N.  Y.  113  (1867). 


868 


EVIDENCE   AND    PRACTICE. 


Notes. 


fore.  He  then  walked  back  toward  the  hole,  and  as  he  did  so  the  witness 
noticed  his  eyes  directed  towards  the  aperture.  It  could  be  seen  from  the  in- 
side. He  did  it  two  or  three  times.  lie  came  near  the  aperture,  passed  to  one 
side  and  stood  still  a  moment.  He  then  crossed  directly  in  front  of  the  aper- 
ture to  the  other  side.  He  then  appeared  to  bend  forward,  and  looked  into 
the  hole  and  dodged  back.  The  conduct  of  the  prisoner,  as  thus  detailed,  if  he 
was  Avatching  to  see  whether  he  was  observed,  and  was  regulating  his  conduct 
accordingly,  was  most  important  for  the  consideration  of  the  jury  on  the  issue 
whether  the  insanity  claimed  for  the  prisoner  was  real  or  feigned.  If  the  jury 
came  to  the  conclusion  that  the  prisoner  was  watching  to  see  if  he  was  ob- 
served, and  believed  he  was,  then  his  conduct  clearly  evinced  such  evidence  of 
calculation  and  design  as  conclusively  showed  tliat  he  was  not  at  thut  time,  at 
least,  insane.  It  certainly  tended  strongly  to  show  that  the  defence  of  insanity 
was  not  founded  in  fact,  and  the  expression  of  the  opinion  of  the  judge  that  it 
was  fatal  to  the  defence  of  insanity  is  not  a  matter  of  exception." 

§93.  Insanity — Findiner  ot  Jury  Conclusive. — In  Johnsonv.  >S'?(7f«,Uhe  prisoner 
was  indicted  for  assault  with  intent  to  kill.  The  defence  was  mental  imbecility, 
but  he  was  convicted.  On  appeal,  theCourtof  Appeals  said.  White,  P.  .J.  deliv- 
ering the  opinion:  "  The  defence  relied  on  was  not  so  much  insanity  as  mental 
imbecility,  or  incapacity  to  distinguish  right  from  wrong.  Upon  this  point  the 
testimony  is  conflicting.  Dr.  Keating  is  the  only  witness  Avho  believes  that  the 
defendant  is  not  a  reasonable  creature,  but  insane;  the  other  witnesses  believe 
him  capable  of  distinguishing  right  from  wrong,  and  accountable  for  his  acts 
when  not  under  the  influence  of  some  powerful  emotion  of  mind.  The  witness 
King,  who  knew  him  well  and  lived  in  his  immediate  neighborhood,  said  he  was 
a  man  of  good  sense  —  had  sense  enough  to  attend  to  his  own  business  and  make 
a  good  farm  hand,  and  that  he  had  never  seen  auything  wrong  with  him.  The 
charge  of  the  court  npon  this  branch  of  the  case  presented  the  law  in 
explicit  and  ample  terms,  as  now  uiulerstood  in  this  State,  and  the  jury  were 
fully  apprised  of  their  duty  in  the  premises.  The  evidence,  under  such  proper 
instructions  as  to  the  law,  has  failed  to  satisfy  them  that  defendant's  mental 
incapacity  was  such  as  to  render  him  irresponsible  for  his  acts.  To  support  a 
plea  of  insanity  the  evidence  must  be  such  as  to  satisfy  the  minds  and  con- 
sciences of  the  jury  to  the  extent  that  they  can  say  he  should  be  and  is  ac- 
quitted npon  that  ground. ^  Hliould  it  fail  so  to  satisfy  them,  their  finding  is 
conclusive  and  will  in  no  case  be  reversed,  unless  the  finding  is  most  clearly 
and  directly  against  the  evidence." 

In  a  Georgia  court  it  was  said:  "  There  seems  to  be  no  evidence  of  insanity. 
The  rambling  statement  of  the  prisoner  is,  it  is  true,  very  incoherent,  but  it 
would  be  rather  dangerous  to  give  much  weight  to  an  evidence  of  insanity  so 
liable  to  imposition  as  this.  The  wickedness  of  the  crime  and  the  want  of  ap- 
parent motive  would  be  equally  dangerous.  Motives  are  generally  hard  to  dis- 
cover, and  wickedness  is  unfortunately  incident  to  human  nature,  even  in  sane 
people.    We  are  free  to  say  that  we  are  not  disposed  to  look  kindly  on  pleas  of 


llOTex.  (App.)671. 


2  Webb  V.  State,  9  Tex.  (App.)  490;  King 
V.  State,  9  Tex.  (App.)  67. 


NEW    TIIIAL NEWLY   DISCOVERED   EVIDENCE. 


869 


Continuance. 


Insanity  tliat  liavc  tlicir  strongest  evidence  in  the  enormity  of  tlic  crime,  and 
they  arc  n  :  thuui^ht  of  until  it  liecomes  important  to  excuse  a  violator  of  the 
law.  So  far  as  appears  from  tlie  record  in  tliis  case  tliere  was  no  other  evidence 
of  insanity,  but  the  enormity  of  the  crime  and  the  incolierence  of  the  prisoner's 
statement  to  tlie  juiy,  and  even  if  we  were  satisfied  tliat  thecharge  of  tlie  judge 
to  the  effect  that  they  must  be  satisfied  of  the  insanity  of  the  prisoner  before 
they  can  find  him  not  guilty  on  that  ground,  we  would  not  grant  a  new  trial, 
simply  because  there  was  no  evidence  of  insanity. i  In  liusscll  v.  State,  it  was 
said :  2  "We  will  remark  that  in  taking  leave  of  the  points  arising  on  tlie  plea  of 
insanity  that  an  attentive  perusal  of  the  testimony  fully  satisfies  us  of  the  cor- 
rectness of  the  finding  of  the  jury  on  this  sul)ject.  Apart  from  the  fact  that  the 
prisoner  had  l)een  some  years  before,  and  also  in  early  childhood  subject  to  at- 
tacks of  epilepsy,  there  is  nothing  to  support  the  idea  that  he  was  insane,  save 
the  unprovoked  and  cold-blooded  murder  of  wiiich  he  was  guilty  and  this,  wc 
fear,  proceeded  only  from  the  madness  of  passion  or  from  a  wretchedly  inade- 
quate conception  of  the  sanctity  of  human  life."  In  Fisher  v.  State,^  it  was  said : 
"  lu  the  case  before  us  the  evidence  satisfactorily  proved  that  the  appellant  Avas 
•ntoxicated  when  he  committed  tlie  offence  with  which  he  was  charged  in  the 
indictment;  tliat  he  was  an  habitual  drunkard;  but  we  cannot  say  after  the  ver- 
dict of  the  jury  that  continuous  excessive  use  of  liquor  had  caused  disease,  pro- 
ducing insanity  or  idiocy,  as  a  mental  condition  of  tliat  permanency  which 
would  render  him  un;iccountable  for  cnnie  by  him  committed.  We  know  as  a 
matter  of  general  knowledge  tl\at  sucli  nienuil  condition  is  not  the  necessary  re- 
sult of  such  drunkenness,"  and  ';he  verdict  of  guilty  and  judgment  thereon  were 
affirmed. 

§  94.  New  Trial  —  Newly  Discovered.  Evidence  —  Cumulative  Evidence. — 
Though  a  new  trial  is  not  granted  on  the  ground  of  newly  discovered  evidence, 
where  the  evidence  might  have  liee-.»  discovered  and  used  on  the  trial  l)y  the  ex- 
ercise of  reasonable  diligence,  nor  where  the  evidence  is  simply  cumulative,*  yet 
in  a  capital  case,  where  the  defence  is  insanity,  a  more  liberal  construction  is 
given  to  tlie  rule  —  in  the  first  case  because  negligence  in  an  insane  man  may  be 
overlooked,  especially  wliere  he  is  defended  by  young  or  inexperienced  counsel, 
and  in  the  next  because  unsoundness  of  mind  is  Ijest  proven  by  a  series  of  facts 
and  conduct  extending  over  a  considerable  period.^ 

§  95 .  Refusal  of  Application  for  Continuance  —  Evidence  Not  Cumulative.  — 
In  Webb  v.  State,^  it  was  held  error  for  the  court  below  to  refuse  an  applitatiou  for 
a  continuance  based  on  tlie  absence  of  six  witnesses  wlio  would  testify  to  the 
prisoner's  insanity.  The  Court  of  Appeals  in  passing  upon  the  question  laid 
down  the  general  rules  on  the  suljject  of  insanity  as  follows:  Wiiitk,  J.  "It  is 
a  wise  as  well  as  most  humane  provision  of  our  law  tliat '  no  act  done  in  a  state 
of  insanity  can  be  punished  as  an  offence.'  ^  With  regard  to  murder,  it  is 
specially  declared  a  part  of  the  definition  of  the  crime  that  it  is  tlie  act  of  *  a 


1  Holsenbal£o  t'.  State,  45  Ga.  55  (1872). 

2  53  Miss.  307  (1876). 

3  Blliul.  435  (lt-7S). 

*  State  V.  Uedemeier,  71  Mo.  173  (18Y9). 


s  Aiulerson  v.  State,  43  Conn.  514  (1876). 
"5  Tex.  (App.)  506  (1879). 
"  Pasc.  Dig.,  art.  1643. 


«70 


EVIDENCE  AND  PRACTICE. 


Notes. 


person  with  a  sound  memory  and  discretion.'  On  tlie  other  hand,  it  is 
equally  as  well  settled,  both  in  law  and  in  reason,  that  every  man  is  pre- 
sumed to  be  of  sane  mind  until  the  contrary  is  shown.^  'In  criminal  cases, 
In  order  to  absolve  the  party  from  guilt,  a  higher  degree  of  insanity  must 
be  shown  than  would  be  sufficient  to  discharge  him  from  the  obligations 
of  his  contracts.'*  'In  all  such  cases  the  jury  are  to  be  told  t'lat  every 
man  is  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be 
responsible  for  his  crimes,  until  the  contrary  is  proved  to  their  satisfaction;  and 
that,  to  establish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly  proved 
that,  at  the  time  of  committing  the  act,  the  party  accused  was  laboring  under 
«uch  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  or 
quality  of  the  act  he  was  doing,  or.  If  he  did  know  %  that  he  did  not  know  he 
was  doing  wrong.  The  mode  of  putting  the  latter  part  of  the  question  to  the 
jury  on  these  occasions  has  generally  been,  whether  the  accused,  at  the  time  of 
doing  the  act,  knew  the  difference  between  right  and  wrong;  which  mode, 
though  rarely,  if  ever,  leading  to  any  mistake  with  tlie  jury,  is  not  deemed  so  aceu- 
rate  when  put  generally  and  in  the  abstract  as  Avhen  put  with  reference  to  the 
party's  knowledge  of  right  and  wrong  in  respect  to  the  very  act  with  which  he  is 
charged.'  *  Mr.  Bishop  says :  "The  inquiry  is  directed  to  the  particular  thing  done, 
and  not  to  any  other ;  because,  as  we  have  seen,  a  man  may  be  responsible  for  some 
things  while  not  for  others.  Of  course,  also,  it  has  reference  to  the  time  of  the 
transaction,  not  to  any  other  time.  The  reader,  however,  should  distinguish 
these  questions  from  questions  concerning  the  proof;  for,  to  ascertain  the  state 
of  the  mind  at  a  particular  period  we  may  inquire  into  its  condition  both  before 
and  after  in  relation  to  a  particular  subject,  its  condition  as  to  other  subjects."* 
Evidence  of  the  state  of  the  mind  of  the  party  both  before  and  after  the  act 
done  is  admissible  in  determining  the  question  of  sanity.*  Another  rule, 
-equally  well  settled,  seems  to  be  that  '  if  derangement  or  imbecility  be  proved 
or  admitted  at  any  particular  period,  it  is  presumed  to  continue  until  disproved, 
imless  the  derangement  was  accidental,  being  caused  by  the  violence  of  a  disease. 
But  this  presumption  is  rather  matter  of  fact  than  law,  or,  at  most,  partly  of  law 
and  partly  of  fact.'*  Whatever  may  have  been  the  rules  of  evidence  heretofore 
with  regard  to  the  character  of  proof  admissible  on  the  subject  of  insanity,  the 
doctrine  that  non-professional  witnesses  should  be  allowed  to  state  their 
opinion  as  to  the  sanity  of  the  party,  derived  from  their  acquaintance  with  and 
observation  of  his  conduct,  appearance,  and  actions,  has  become  too  well  set- 
tled to  admit  of  doubt  or  controversy  at  this  time.^  We  are  aware  that 
in  Gehrke  v.  State  our  Supreme  Court,  following  in  the  wake  of  the  deci- 
sions In  Massachusetts  and  New  Hampshire,  held  otherwise.*  The  subject 
has,  however,  of  late  years  been  more  thoroughly  examined  and  discussed ; 
and  in  New  Hampshire  particularly,  in  the  recent  case  of  Hardy  v.  Merrill, 
Foster,  C.  J.,  of  the  Circuit  Court,  in  a  most  elaborate  opinion,  concurred 


1 1  Greenl.  on  £  v.,  sect.  42. 

»/d.,  sect.  372. 

3  2  Greenl.  on  Ev.,  sec.  373 ;  Carters.  State, 
12  Tex.600;  IWhart.Cr.  Law  (6th  ed.),  sects. 
lo,  16. 

<  1  Bish.  Cr.  Law,  (4tli  ed.),  sect.  476. 


*  2  Greenl.  on  Ev.,  sect.  371. 

B  1  Greenl.  on  £v.,  sect.  42. 

T  Holcomb  V.  State,  41  Tex.  125;  Mc- 
Clackey  v.  State,  decided  by  this  court  at  the 
Tyler  term,  1878. 

8 13  Tex.  568. 


CONTINUANCE. 


871 


Affidavit  for,  Not  Admissible. 


in  by  tiie  Supreme  Court,  reviews  tlie  previous  decisions  and  overrules  them, 
which  places  that  court  in  full  accord  with  the  English  and  American  doc- 
trine as  it  now  generally  obtains  on  that  subject.'  The  case  of  Gehrke  v.  State* 
has  been  practically,  as  we  have  seen,  and  will  hereafter  be  considered  as  over- 
ruled on  this  point.  Now,  from  what  has  been  stated  above,  it  necessarily  fol- 
lows that  there  are  no  definite  limits  within  which  the  evidence  can  be  restricted 
•on  an  inquirj'  of  this  sort.  Nor  is  the  investigation  one  in  which  the  judge 
could  well  say  that  additional  evidence  would  be  but  cumulative  of  lilce  testi- 
mony already  adduced;  for  the  greater  the  number  of  witnesses  wlio  would 
depose  to  the  opinion  that  a  party  was  insane,  the  more  likely  would  the 
jury,  we  apprehend,  be  inclined  so  to  believe  and  become  satisfied  of  the  fact. 
In  the  case  at  bar,  the  defence  was  insanity.  An  application  for  continuance 
was  made  on  account  of  the  absence  of  six  of  defendant's  witnesses,  all  of  whom 
had  been  duly  attached,  and  were  under  bond  to  appear  and  testify.  The  facts 
to  which  they  would  depose  are  fully  set  out  in  the  application,  and  it  contained 
the  opinions  of  those  witnesses  as  to  the  insanity  of  the  defendant,  gatliered 
from  their  associations  with  him,  and  their  observations  of  his  conduct,  lan- 
guage, and  appearance  for  some  weeks  prior  and  down  to  and  including  the  very 
day  of  the  killing,  both  before  and  after  the  act.  This  application  was,  more- 
over, in  strict  compliance  with  the  requirements  of  the  statute.  No  reason  is 
given  by  the  court  for  its  action  in  overruling  it,  and  we  are  left  to  infer  that  it 
was  upon  the  ground  that  the  evidence  was  deemed  immaterial  or  inadmissible. 
We  do  not  think  so ;  on  the  contrary,  it  appears  to  us  both  material,  admissible, 
and  pertinent  to  the  issue  to  be  decided ;  and  its  materiality  becomes  much  more 
apparent  when  we  consider  it  in  connection  with  tlie  evidence  actually  adduced 
for  the  defendant  on  the  trial.  How  far  these  witnesses  can  be  rolled  upon  for 
the  truth,  or  how  far  their  testimony  might  have  influenced  the  action  of  the  jury 
in  finding  their  verdict,  it  is  Impossible  for  us  to  say.  As  presented  to  us,  the 
application  for  continuance  was  sufficient,  and  should  have  been  granted." 
The  case  was  reversed  and  remanded. 

§96.  Evidence — Affidavit  of  Defendant  for  Continuance  not  Admissible 
on  Trial.  —  In  Farrell  v.  People,^  the  prisoner  was  indicted  for  assault  with  in- 
tent to  commit  murder,  and  the  sole  defence  at  the  trial  was  insanity.  Before 
the  trial  he  moved  to  continue  the  cause,  on  account  of  the  absence  of  a  material 
witness,  and  in  his  affidavit  in  support  of  the  motion  he  deposed  that  he  could 
prove  by  the  absent  witness  that  he  did  not  fire  the  shot  which  constituted  the 
alleged  murderous  assault,  and  that  what  he  could  so  prove  was  true.  On  the 
trial,  and  after  the  prosecution  had  given  to  the  jury  all  their  evidence  In  rebut- 
tal of  the  evidence  of  the  prisoner  on  the  question  of  insanity,  the  prosecuting 
attorney  was  allowed  to  read  this  affidavit  in  evidence  to  the  jury.  In  the  Su- 
preme Court  this  was  held  erroneous.  '*  It  is  patent,"  said  Scholfield,  J., 
"  that  it  was  utterly  irrelevant  to  the  issue  being  tried.  It  did  not  tend  to  prove 
a  single  fact  which  it  was  incumbent  on  the  People  to  prove  or  to  disprove  any 
thing  which  the  plaintiff  in  error  had  attempted  to  prove.  Of  course  the  affida- 
vit of  the  party  is  competent  evidence  against  himself  when  it  is  relevant  to  the 


I  86  N.  H.  227 


>  13  Tex.  568. 


«  103  111.17(1882). 


872 


EVIDENCE   AND   PRACTICE. 


Notes. 


Issue.  It  stands  on  tlie  same  footlnij  as  any  other  tleclarntioii  niacin  by  hini  un- 
der oath,  lint  who  wouhl  pretend  that  it  wonldhe  relevant  on  the  (|Uestiou  of 
insanity  to  i)rove  that  a  party  had  before  that  time  deelared  his  innocence  of  any 
participation  in  the  act  alle'j;e(l  to  be  criminal,  and  had  sworn  to  tlds  declaration? 
The  allidavit  may  be  untrue  and  the  plaintiff  in  error  may  have  also  been  insane. 
If  lie  was  in  fact  Insane,  he  may  have  had  no  recollection  of  the  transacticni  or 
no  capacity  to  reason  in  reicard  to  it.  In  any  view  what  he  swore  (o  in  his  alli- 
davit cannot  have  a  tendency  to  enliiihten  the  (|uestion  whether  he  was  affected 
with  insanity  at  the  time  he  connnitted  the  assault.  The  improper  effect  of  the 
allidavit  on  the  minds  of  the  jury  may  h;ive  been  cither  in  producinj^  the  belief 
tliat  the  defence  of  insanity  was  an  afterlhouyht,  and  so  not  urged  in  fjood  faith, 
or  that  plaintiff  In  error  had  connnitted  perjury  in  makin;^  the  allidavit,  for 
which  he  deserveil  punislnnent.  If  he  was  really  insane  when  he  conunitted  the 
assault,  it  could  lei^ally  make  no  difference  when  the  defcmce  w'as  llrst  inter- 
posed, lie  wt)uld  not  himself  be  a  competent  JndLre  of  his  mental  status,  and 
the  more  certain  his  in.sanity,  the  more  certain  it  would  be  that  Ids  allidavit 
ouirhtuot  to  be  regarded  for  auy  purpose.  But  the  proof  that  he  committed  the 
assault  being  conclusive,  the  jury,  without  retlectiug  whetl cr  sane  or  insane, 
might  conclude  he  Is  clearly  guilty  of  perjury,  and  use  the  fact  of  that  guilt  not 
only  as  a  make-weight  in  determining  his  guilt  of  the  specitlc  offence  charged, 
but  also  in  llxlng  the  amount  of  his  punishment  for  that  offence.  If  .it  be  true 
that  he  committed  perjury  in  the  allidavit,  he  cannot  be  punished  for  that  offence 
ill  this  trial.    These  principles  ai'e  obvious  and  can  require  no  elaboration." 

§  97.  Misconduct  of  Jury  —  Reading:  Newspaper  Accounts  of  Insanity  as 
a  Defence. —  In  State  v.  liubinson,^  the  prisoner  Avas  on  trial  for  murder,  the  de- 
fence being  insanity.  During  the  deliberations  of  the  jury  cojjies  of  the  Wash- 
ington Post  containing  an  account  of  the  trial  of  Gulteau  for  the  uuirder  of 
President  Garlield,  Avhich  was  then  going  on,  were  received  and  read  by  them. 
In  one  of  the  copies  of  the  Post  read  by  the  jury  was  a  report  of  the  examination 
of  Dr.  John  Gray,  Superintendent  of  the  Lunatic  Asylum  at  I'tica,  N.  Y.,  who 
was  called  by  the  prosecution,  and  a  part  of  his  cross-examination,  as  follows: — 

Question.  "  What  is  kleptomania?  " 

Ansiccr.  "  A  word  used  to  express  thieving.  I  don't  believe  in  it.  I  don't  be- 
lieve in  any  of  the  so-called  moral  insanities.     I  believe  they  are  crimes." 

Question.  "  What  do  you  mean  by  dypsomanla?  " 

Answer.  "  Some  call  such  a  tendency  a  habit  of  drinking.  I  call  it  drunken- 
ness.    I  don't  call  it  insanity." 

Question.  "  What  do  you  mean  by  pyromania? " 

Answer.  "  Tlie  burning  of  houses.     I  call  it  incendiarism.     I  call  it  a  crime." 

In  another  of  the  papers  it  appeared  that  Dr.  Gray  testilled  that  he  was  medi- 
cal superintendent  of  the  New  York  State  Asylum.  He  did  not  believe  in  moral 
Insanity  and  had  not  for  years.  That  term  was  intended  to  signify  a  pen'ersion 
of  the  moral  character,  leaving  the  intellectual  character  still  sound.  He  Avas, 
according  to  the  nevA'spaper,  examined  generally  upon  the  subject  of  insanity,  and 
in  the  course  of  his  examination  he  expressed  tlie  opinion  very  decidedly  that 


1  20  W.  Va.  745  (1882). 


ADDENDA  OF  LATE  CASES. 


873 


I 


Cases  too  Recent  to  lloport. 


t 


Gultcau  wns  sane.  In  the  Supreme  Court  this  was  held  to  be  such  error  as  to 
require  a  new  trial.  "  Tlio  main  defence,"  said  Johnson,  P.,  "relied  on  l)y 
counsel  for  Robinson  was  Insanity.  Tlie  only  defence  relied  on  inCJuiteau's 
case  was  Insanity.  The  expert,  Dr.  Gray,  was  examined  at  leufjjtii  on  the  subject 
of  Insanity,  and  his  opinions  on  that  subject  as  reported  in  newspapers  were 
read  by  the  jury,  and  from  what  was  read  the  jury  mliiht  well  infer  that  tlie  dis- 
tlnfjuished  Dr.  Gray  believed  that  insanity  was  sometimes  feigned.  A^ain  Dr. 
Gray  ridiculed  the  idea  of  'moral  insanity,'  declarinji^  that  '  dyiisomania'  was 
not '  insanity '  but  •drunkenness.'  It  was  clalnu'd  in  this  case  that  Rol)inson 
was  Insane  from  previous  habits  of  intoxication;  that  he  liad  been  .so  lon;^  ad- 
dicted to  the  use  of  Intoxicatinij;  li(|Uors ;  that  insanity  was  superinduced  therei)y. 
The  statement  of  Dr.  Gray  was  calculated  to  .shake  the  belief  of  the  jury,  if  any 
such  they  had,  that  by  the  long  continued  use  of  intoxicating  lUiuors  a  man  might 
become  Insane.  We  have  seen  that  a  verdict  was  set  aside  because  a  jury  got 
hold  of  a  work  on  criminal  law  and  read  from  it  while  they  were  trying  a  man 
for  murder.  It  is  certainly  more  dangerous  for  them  to  read  from  a  newspaper 
what  purports  to  be  the  testimony  of  an  expert  on  the  suljject  of  insanity  when 
that  is  the  very  subject  which  they  are  considering.  We  think  the  reading  of 
the  uewsjjaper  account  of  the  expert  testimony  on  the  sul)ject  of  insanity  in  the 
Ouiteau  Case  was  calculated  to  prejudice  the  case  of  the  prisoner;  and  the  court 
erred  in  refusing  to  set  aside  the  verdict  for  this  reason."  i 


1  This  case  of  State  v.  nobinson  would 
have  been  printed  in  this  work  in  full,  had  it 
been  reported  in  time.  It  did  not,  however, 
appear  in  the  reports  until  this  collection 
wns  in  plates.  The  following  rulings  on  the 
subject  of  insanity  in  the  case  nf  State 
T.  Iiobin$on,  are  here  noted,  in  connec- 
tion with  other  cases,  reported  too  late 
to  appear  in  this  collection  in  their  proper 
places.  1.  Permanent  insanity  produced  by 
habitual  drunkenness  is  an  excuse  for  crime. 
2.  Insanity  when  relied  on  as  a  defence  must 
be  proved  to  the  satisfaction  of  the  jury  in 
order  to  entitle  the  prisoner  to  an  actiuiltal. 
If  upon  the  whole  evidence  the  jury  believe 
that  the  prisoner  was  insane  when  he  com- 
mitted the  deed,  they  willac<iuit  him  on  that 
ground,  but  not  on  the  fanciful  ground  that 
though  they  believe  he  was  then  sane,  yet  as 
there  may  be  a  reasonable  doubt  of  such 
sanity,  he  is  therefore  entitled  to  an  aci|Uit- 
tal.  3.  A  person,  though  drunk,  may  be  cap- 
able of  deliberation  and  premeditation,  and 
if  the  jury  believe  that  he  wilfully,  mali- 
ciously, deliberately  and  premeditatedly 
killed  the  deceased,  they  ehould  find  him 
guilty  of  murder  in  the  first  degree,  though  he 
was  intoxicated  at  the  lime  of  the  killing.  4. 
If  a  person  who  has  formed  a  wilful,  deliber- 
ate and  premeditated  design  to  kill  another, 
in  pursuance  of  such  design  makes  himself 


drunk  in  order  to  nerve  himsolf  to  the  deed, 
and  then  meets  the  subject  of  his  malic*, 
when  he  is  so  drunk  as  not  to  be  able  to  de- 
liberate on  and  prcnieditati^  the  murder,  and 
kills  liim,  he  is  guilly  of  munlcriii  the  first 
dcgroi!.  .'").  A  jjcrson,  whether  an  habitual 
drinker  or  not,  cannot  voluntarily  make  him- 
self so  drunk  as  to  become  on  that  account 
irrc^sponsiblc  for  his  conduct  during  such 
druiikfiincss.  IIu  maybe  iierfectly  uncon- 
scious of  wliat  li(?  does  ;  and  yet  he  is  respon- 
sible. He  may  be  incapable  of  express 
malice;  but  the  lawimiilies  malice  in  such 
cases  from  the  nature  of  the  instrument  used, 
the  absence  of  provocation,  and  other  cir- 
cumstances under  which  the  act  is  done.  0. 
If  a  person  kills  another  without  provocation 
and  through  reckless  wickedness  of  heart, 
but  at  the  lime  of  sodoinghiscondition  from 
intoxication  is  such  as  to  rentier  him  incap- 
able of  doing  a  wilful,  deliberate  and  pre- 
meditated act,  ho  is  guilty  of  murder  in  the 
second  degree.  7.  Where  a  statute  estab- 
lishes degrees  of  murder,  evidence  of  drunk- 
enness is  relevant.  8.  As  between  the  two 
offences  of  murder  in  the  second  degree  and 
manslaughter,  the  drunkenness  of  the  of- 
fender is  not  relevant;  the  killing  being  vol- 
untary, the  offence  is  necessarily  murder  in 
the  second  degree,  unless  the  provocatir)n 
was  of  such  a  character  as  would  at,  common 


I 


874 


EVIDENCE   AND   PRACTICE. 


Notes. 


§  !)8.  Habeas  Oorpus  —  Ball.  —  In  United  States  v.  Lawrence,^  the  prisoner, 
having  been  eoniinitted  for  trial  for  an  assault  with  intent  to  Ivlli  the  President 
of  the  United  States  (General  Jackson),  the  court  refused  to  issue  a  habeas  cor- 


1  4  Oranch  C.  C.  518  (IftW), 
law  reduce  the  crime  to  manslaughter;  for 
which  latter  oifcnce  a  drunken  man  ia  aa  re- 
sponsible as  a  sober  one. 

In  State  v.  Smith,  49  Conn.  376  (1881),  the 
following  points  were  determined :  1.  It  is  no 
«rror  to  refuse  to  charge  that  in  murder  in 
the  first  degree,  the  Jury  must  llnd  that  the 
act  was  done  while  the  prisoner  was  in  full 
possession  of  his  reasoning  powers,  unim- 
paired by  anything  affecting  his  mental  con- 
dition. A  lower  condition  of  the  mental 
faculties  would  be  suiBcicnt.  2.  It  is  wholly 
a  question  of  fact  for  the  jury  whether  intox- 
ication existed  to  such  a  degree  as  to  inca- 
pacitate the  prisoner  for  conceiving  and 
executing  a  wilful,  deliberate  and  premedi- 
tated intent  to  liill.  3.  It  is  not  error  for  the 
-court,  having  instructed  the  jury  that  intox- 
ication might  destroy  the  mental  capacity  to 
form  a  spcciflc  intent  to  kill,  to  refuse  to  in- 
struct them  that  if  the  prisoner  was  so  intox- 
icated that  his  drunken  condition  was 
observable,  it  was  a  matter  of  "  extreme  im- 
portance "  on  tlie  question  of  his  capacity  to 
form  such  an  intent.  4.  It  is  no  error  for 
the  court  to  refuse  to  charge  that  threats 
made  by  an  intoxicated  person  are  entitled 
lo  very  little  consideration  in  determining 
the  que&tion  of  his  intent.  It  is  wholly  a 
matter  for  the  Jury,  and  the  court  is  not 
bound  to  say  any  thing  about  it. 

In  Hart  v.  People,  decided  in  the  Supreme 
Court  of  Nebraska,  in  1883,  it  was  said :  "  The 
better  rule  we  think,  and  the  one  adopted 
by  this  court  in  the  case  of  Wright  v.  People, 
4  Xeb.  407,  is  in  effect  that  if  one  accused  of 
crime  h.is  the  mental  capacity  to  distinguish 
right  from  wrong  in  respect  to  the  particular 
•act  charged,  he  is  responsible."  Hart  r.  Peo- 
ple, 14  Neb.  375  (1883). 

In  Ford  v.  State,  decided  by  the  Supreme 
Court  of  Alabama  in  1883  (16  Rep.  647) ,  it  was 
held  that  where  insanity  is  interposed  as  a 
defence  in  criminal  cases,  it  must  be  estab- 
lished to  the  satisfaction  of  the  jury  by  a 
preponderance  of  the  evidence,  and  a  rea- 
sonable doubt  of  the  defendant's  sanity, 
raised  by  all  the  evidence,  does  not  authorize 
an  acquittal. 

In  Carter  v.  State,  decided  by  the  Supreme 
Clourt  of  Georgia  in  1876,  it  was  held  that  the 
presumption  of  siiaity  must  be  overcome  by 


a  preponderance  of  the  evidence.    Carter  v. 
State,  56  Ga.  463  (1S76). 

In  lieff.  V.  Davit,  14  Cox  C.  C.  563,  tried  be- 
fore Stephen,  J.,  in  April,  1881,  the  rule  that 
insanity  resulting  from  drunkenness  may  be 
a  defence  was  recognized.  The  prisoner 
(who  had  previously  been  drinking  heavily 
but  was  then  sober)  made  an  attack  upon  his 
sister-in-law,  Mrs.  Davis,  threw  her  down 
and  attempted  to  cut  her  throat  with  a  knife. 
Ordinarily  he  was  a  peaceable  and  good- 
natured  man,  and  on  friendly  terms  with  her. 
At  the  police  station  after  his  arrest  he  said : 
"The  man  in  the  moon  told  me  to  do  it.  I 
will  have  to  commit  murder  as  I  must  be 
banged."  He  was  examined  by  two  medical 
men  who  found  him  suffering  from  delirium 
tremens,  resulting  from  over  indulgence  in 
drink.  According  to  their  evidence  he  would 
know  what  he  was  doing,  but  his  actions 
would  not  be  under  his  control.  In  their 
Judgment  neither  fear  of  punishment  nor 
legal  nor  moral  considerations  would  have 
deterred  him  — nothing  short  of  actual  phy- 
sical restraint  would  have  prevented  him 
acting  as  he  did.  He  was  disordered  in  his 
senses  and  would  not  be  able  to  distinguish 
between  moral  right  and  wrong  at  the  time 
he  committed  the  act.  Under  proper  care 
and  treatment  he  recovered  in  a  week,  and 
was  then  perfectly  sensible.  For  the  defence 
it  was  submitted  that  he  was  of  unsound 
mind  at  the  time  of  the  commission  of  the 
act,  and  was  not  responsible.  Steimien,  J., 
charged  the  jury  as  follows:  "  The  prisoner 
at  the  bar  is  charged  with  having  feloniously 
wounded  his  sister-in-law,  Jane  Davis,  on 
the  14th  day  of  January  last  with  intent  to 
murder  her.  You  will  have  to  consider 
whether  he  was  in  such  a  state  of  mind  as  to 
be  thoroughly  responsible  for  his  actions. 
And  with  regard  to  that  I  must  explain  to 
you  what  is  the  kind  or  degree  of  insanity 
which  relieves  a  man  from  responsibility. 
Nobody  must  suppose  — and  I  hope  no  one 
will  be  led  for  one  moment  to  suppose  — 
that  drunkenness  is  any  kind  of  excuse  for 
crime.  If  this  man  had  been  raging  drunk, 
and  had  stabbed  his  sister-in-law  and  killed 
her,  he  would  have  stood  at  the  bar  guilty 
of  murder,  beyond  all  doubt  or  question. 
But  drunkenness  ia  one  thing,  and  the  dis- 


ADDENDA   OF   LATE   GASES. 


875 


Cases  too  Recent  to  Report. 


pua  for  the  purpose  of  inquiring  as  to  his  sanity,  and  for  that  cause  «'  to  dis- 
charge him  from  imprisonment  in  the  common  gaoi  and  to  secure  the  public 
peace  by  proper  restraint."    In  Zembrod  v.  State,^  the  prisoner  was  charged 


IM  Tex.  519(1860).  . 
eftscs  to  which  drunkenness  leads  are  differ- 
ent things,  and  if  a  man  by  drunkcitiiess 
brings  on  a  state  of  disease  which  causes 
such  adcgroo  of  madness,  even  for  a  time, 
which  would  have  relieved  him  from  respon- 
sibility if  it  had  been  caused  in  any  other 
way,  then  he  would  not  be  criminally  respon- 
sible. In  my  opinion.  In  such  a  case  the  man 
is  a  madman,  and  is  to  bo  treated  as  such, 
although  his  modness  is  only  temporary. 
If  you  think  ho  was  so  insane  — that  it  his 
insanity  hud  been  produced  by  other  causes 
he  would  not  bo  responsible  for  his  actions  — 
then  the  mere  fact  that  it  was  caused  by 
drunkenness  will  not  prevent  it  having  the 
effect  which  otherwise  it  would  have  had  of 
excusing  him  from  punishment.  Drunken- 
ness is  no  excuse,  but  deliriumtrtmens causoi 
by  drunkenness  may  be  an  excuse  if  you 
think  it  produces  such  a  state  of  mind  as 
would  otherwise  relieve  him  from  responsi- 
bility. A  person  may  be  both  insane  and 
responsible  for  his  actions,  and  the  great 
test  laid  down  in  McX.ighten's  Case  was 
whether  he  did  or  did  not  know  at  the  time 
that  the  act  he  was  committing  was  wrong. 
If  he  did,  even  though  he  were  mad  — he 
must  be  responsible ;  but  if  his  madness  pre- 
sented tliat  then  he  was  to  be  excused.  As 
I  understand  the  law  any  disease  which  so 
disturbs  the  mind  that  you  cannot  think 
calmly  and  rationally  of  all  the  different 
reasons  to  which  we  refer  in  considering  the 
Tightness  or  wrongness  of  an  action  — any 
disease  which  so  disturbs  the  mind  that  you 
cannot  perform  that  duty  with  some  moder- 
ate degree  of  calmness  and  reason,  may  be 
fairly  said  to  prevent  a  man  from  knowing 
tlint  what  he  did  was  wrong.  Delirium  tre- 
mens is  not  the  primary  but  the  secondary 
consequence  of  drinking,  and  both  the  doo- 
tors  agree  that  the  prisoner  was  unable  to 
KSontrol  his  conduct  and  that  nothing  short  of 
Actual  physical  restraint  would  have  de- 
terred him  from  the  comraission  of  the  act. 
If  you  think  there  was  a  distinct  disease 
caused  by  drinking,  but  differing  from 
drunkenness,  and  that  by  reason  thereof  he 
did  not  know  tliat  the  act  was  wrong,  you  will 
find  a  verdict  of  not  guilty  on  the  ground  of 
insanity;  but  if  you  are  not  satisfied  with 
that,  you  must  find  him  guilty  either  of  stab- 


bing with  intent  to  murder,  or  to  do  grievous 
bodily  harm." 

The  Jury  returned  a  verdict  of  not  gallty 
on  tlie  ground  of  insanity,  and  ho  was 
ordered  to  be  detained  during  the  Queen's 
pleasure. 

The  ruling  In  Webb  v.  State,  9  Tex.  (App.) 
400,  and  King  v.  .State,  Id.,  515,  on  the  legal 
test  of  insanity  was  afOrmed  by  the  Court  of 
Appeals  of  Texas  in  the  case  of  King  v. 
State,  13  Tex.  (App.)  283,  decided  in  1882. 

In  People  v.  Camel,  2  Edm.  Sei.  Cas.  200 
(1831),  Edmonds,  J.,  charged  the  Jury  that 
"  the  insanity  which  was  to  excuse  crime 
must  be  not  the  mere  impulse  of  passion,  an 
idle,  frantic  humor,  or  unaccountable  mode 
of  action,  but  an  absolute  di.s;)osscssion  of 
the  free  and  natural  agency  of  the  human 
mind.  To  warrant  a  conviction  the  jury 
must  be  satisfied  that  the  prisoner  had  the 
capacity  to  form  an  intention,  and  dnvi.se  the 
means  of  executing  it."  And  see  I'cople  v. 
Russ,2  Kdm.  Sel.  Cas.  420  (1817).  This  8ec- 
ond  volume  of  Judge  Edmonds'  decisions 
was  not  published  till  the  fall  of  18^3. 

In  McDougal  v.  State,  88  Ind.  24,  decided 
by  the  Supremo  Court  of  Indiana  in  1883,  it 
was  held:  1.  The  prcsumptionof  sanity  ope- 
rates as  evidence  in  behalf  of  the  State,  and, 
if  the  other  eviden<;e  on  the  part  of  the  State 
docs  not  OTC'throw  it,  the  State  may  rest 
upon  it  as  suflicient.  2.  When  the  pica  of 
insanity  is  in,  the  question  of  sanity  or  in- 
sanity is  before  tiie  Jury  and  is  to  be  passed 
upon  by  them  whether  the  defendant  has 
introduced  any  evidence  upon  the  subject 
or  not. 

ZoLLARS,  J.,  delivered  the  opinion  of  the 
court  as  follows :  Upon  an  indictment  charg- 
ing murder  in  the  first  degree,  appellant 
was  tried,  convicted  and  sentenced  to  suffer 
death.  The  facts  in  the  case,  as  shown  by 
the  evidence  on  the  part  of  the  State,  are 
substantially  as  follows :  — 

Appellant,  with  bis  wife  and  children, 

resided  in  Jeffersonville  on  the day  of 

September,  1882 ;  the  wife  of  appellant  was 
away  from  home  at  work.  Having  been  ab- 
sent for  awhile  in  the  evening,  appellant  re- 
turned at  about  eight  o'clock,  brought  an  axe 
in  the  house,  and  holding  it  up  said  to  his 
daughter,  a  girl  of  fourteen,  "  Look  at  this; 


4 


87r, 


EVIDI'.NCK    AND    ritAfTKE. 


Notes. 


with  iminU  r.  Tlic  killiiiii  was  provt-d.  On  iiii  iipplicatlnn  for  hail  a  miinhcr  of 
witnesses  testilled  to  acts  antl  dei'larations  of  Ills,  hullcallve  of  iMsanil\.  In  thu 
Suprunit' Court  It  was  said:  "  The  appellant  may  be  mi  11  ty  of  a  capital  ofTciicu 


i 


:a 


i 


this  Is  whnt  I  am  goiii^r  to  kill  ymir  tiiDllicr 
Willi  when  ^^ll'  conii's  Inmir."  He  liiiil  liucii 
iiKikiii^;  lliieatH  (hat  lie  would  kill  his  wifo 
for  four  or  llvo  years.  Ho  Icfl  the  axu  in 
the  lioiiao  iind  wii ;  ahspi\t  afftiiii  until  nine 
o'elock.  Upon  hin  return,  the  ilaiiKlitiM'  hav- 
ing? retired,  he  sjieiil  an  hour  in  conversntioii 
Willi  her.  Nolliin^'  seems  to  Iimv<  been  sjiid 
in  this  eonversa; ion  in  t'l'lalion  to  hi.-<  wife. 
She  returiK'd  hone'  til  ahout  ten  o'elock. 
Uiion  lier  return,  appellant  asked  her  why 
chc  had  not  waited  foi  him  to  aeeoinpany 
her  to  TowuBviile.  Sho  'inswered;  '•!  did 
wait  until  six  o'elock,  nml  'houjrhl  you  was 
not  eoiniiijf."  Jle  said,  "  ^'oi,  were  ashamed 
toffowilh  me."  To  thisshe  a'lHwered,  ".Vny 
one  would  bo  ashamed  to  K'>  with  you  in 
tliof^o  rags."  This  ('(mvcrsation  was  heard 
by  a  person  in  nnotlier  part  vl  the  house 
who  stated  that  immediately  thereafter  he 
heard  a  blow.  The  daughter  seemed  to 
have  been  nsli'ep  when  the  mother  returne(l. 
When  sho  awoke,  the  mother  was  sitting 
upon  a  chair  near  her  bed.  Appellant  said 
to  her,  "Shut  your  mouth."  The  wifo  an- 
swered, "  I  won't  do  it  until  you  shut  yours." 
He  replied,  "I'll  make  you."  Upon  saying 
this  ho  got  the  axe  and  struck  tho  wife  a 
blow  upon  the  head.  The  daughter  tried  to 
get  the  axe  from  him,  but  did  not  succeed. 
Ho  struck  the  wifo  with  it  again  befcu'e 
tho  daughter  ran  into  the  yard.  I'ersons 
from  another  portion  ot  the  house  arrived 
at  the  door  in  a  short  time  and  saw  him 
infliciiiig  fidditional  blows.  He  met  them  at 
tho  door  and  told  them  that  he  had  killed 
his  wife  Willi  an  axe,  ami  invited  them  to  see 
for  themselves.  Afterwards  he  went  into 
tho  yard  with  one  of  his  small  children  and 
tried  to  ((uiet  it.  He  asked  those  present  to 
cut  liis  head  otf  with  the  axe  and  bury  him 
beside  his  wife.  After  a  short  time  ho  sent 
for  n  i)olii'eman,  waited  until  he  arrived, 
and  told  him  that  he  wanted  to  die  as  soon 
as  iiossible.  On  the  following  morning  he 
told  a  )>oliceman  at  tho  jail  that  he  had 
killed  his  wife,  and  where  the  axe  would  be 
found. 

Under  proper  pleas,  as  required  by  sects. 
1763  and  17G4,  Uev.  Stat.  ISSl,  the  defence 
was  based  upon  the  alleged  insanity  of  the 
apiiellant.  Two  physicians  were  called  by 
appellant  to  testify  upon  this  question.  One 
of  these  testified  that  he  could  not  say  that 


appellant  was  of  tinsonnd  mind,  but  cnnld 
say  that  ho  has  but  very  little  iiilcllecl. 
The  other  testilled  that  in  his  opinion  ap 
pellant  was  of  unsound  mind.  Appellant 
was  a  witness  in  his  own  behalf,  and  testi- 
fied that  ho  and  his  wife  had  been  slaves; 
were  married  soon  after  they  became  free; 
that  they  h.-id  no  quarrels,  and  that  no  Jeal- 
ousy existed  on  tho  part  of  either;  that  lie 
did  not  recollect  distinctly  what  look  place 
on  the  night  his  wife  died  ;  Hint  ho  was  not 
afraid  to  die,  and  thought  he  would  go  to  a 
better  world. 

The  error  assigned  in  tho  court  is  the 
overruling  of  a  motion  for  a  new  trial.  The 
serious  (luestion  presented  by  tlu!  record  is 
the  giving  of  the  seventeenth  instruction  by 
the  court.  Tho  portion  of  which  complaint 
is  made  is  as  follows:  — 

"  The  law  preHumoa  sanity  in  ali  cases, 
and  the  burden  of  overthrowing  the  pre- 
sumplion  is  upon  tho  person  who  alleges 
insanity,  but  it  is  not  necessary  tluit  such 
pr(!siimption  should  bo  overthrown  by  a 
preponderance  of  evidence.  And  in  this 
case  if  the  evidence  given  by  defendant  has 
been  sullleient  to  raise  in  tho  minds  of  tho 
jury  a  reasonable  doubt  ot  his  sanity,  then 
tho  general  (jucstion  is  presented  to  the  jury 
whether  or  not  the  crime  was  committed  by 
him  while  responsible  for  his  acts,  anil  then 
upon  the  whole  evidence  in  tho  case,  as 
introduced  by  both  tho  defendant  and  State, 
if  a  reasonable  doubt  exists  us  to  defend- 
ant's sanity  at  the  lime  he  committed  the 
act,  he  is  entitled  to  the  benefit  of  the 
doubt." 

This  instruction  starts  out  with  the  propo- 
sition, substantially,  that  unless  the  defend- 
ant had,  by  allirmativc  evidence,  created  a 
reasonable  doubt  as  to  his  sanity  at  the  time 
the  crime  charged  was  committed,  that  ques- 
tion was  not  before  tlie  jury  for  considera- 
tion. This  we  think  was  erroneous.  One  of 
the  averments,  anil  one  of  the  essential  ele- 
ments in  the  oirenec  of  murder,  is  malice. 
Murder  is  said  to  be  committed  whiMi  a  per- 
son of  sound  mind  and  discretion  unlawfully 
killcth  any  reasonable  creature  in  being  and 
under  the  king's  peace,  with  malice  afore- 
thought, either  expressed  or  implied.  3  Coke 
Just.  47;  i  Rl.  Com.  VX>;  2  Chit.  Cr.  I..  724. 
Malice  is  just  jis  essential  to  the  olfence  as  is 
the  killing,  and  the  State  is  culled  upon  to 


If 


f 


ADDKNDA    OF    LATE    CASES. 


H77 


CUSCS   too    lU'Cfllt    In    I{(|iort. 


ns  rhnrsjcd.  Tlie  tcstlinoiiy  of  tin-  witnesses  upon  the  siibjcrt  of  his  lnsinilfy,  iis 
prt'si'iiti'd  In  tlic  ri'coril  before  us,  Is  of  ii  eliaracter  'o  induce  tlu'  belief  that  it  Is 
not  II  ciiso  In  which  the  proof  Is  evident  or  prfsui..,Jtlou  greut.  Therefore  it  Is 
deternilaed  that  he  Is  entitled  to  bail." 


prove  tho  one  iih  clearly  an  the  other.  It  is 
imt  iihvays  posHlblo  or  iiccrshury  to  prove 
malice  liy  the  Hitnie  kind  of  evidence.  It 
may  oft(Mi  be  inferred  froni  the  killing  uitU 
surrounding  eircnnnstancuH,  in  wliieli  case  it 
Is  8aid  lu  |je  implied,  but  It  Ih  nevertheleHa 
proven.  Tlicro  can  lie  no  criminal  intent 
when  the  mental  condition  of  the  accuKcil  is 
such  that  hu  is  Incapable  of  forming  one. 
And  hence  it  mnat  appear  from  llie  evidence, 
beyond  a  reasonable  doubt,  that  at  the  time 
of  tho  commisMliin  of  the  olfence  <'liari;cd, 
tlio  menial  condiiion  of  ilic  defenilant  was 
such  that  he  was  uuiiublo  of  forming  uu 
inlent. 

There  is  n  legal  i)rcBumption  that  all  per- 
sons are  sane.  Itiaca.'^e  like  tliis  llial  pre- 
sumption operates  as  evidence  in  behalf  of 
the  Stale,  and  if  tho  other  evidence  on  the 
jjart  of  the  Slate  docs  not  overthrow  it,  the 
.State  may  rest  ui)on  it  as  sulUcient.  The  de- 
fendant nmy  overthrow  tho  evidence  on  tho 
part  of  tho  State,  or  so  weaken  it  by  counter 
proof,  that  upon  the  whole  evidence  the  issue 
may  not  be  eHtablished  in  favor  of  the  Stale, 
beyond  a  reasonable  doubt.  J'olk  r.  State,  19 
Ind.  170;  JJradlcyr.  State,  :;i  Ind.  ■i;)2;  Snyder 
V.  State,  :!9  li.d.  lO,-.;  lVoi)le  r.  Uarbult,  17 
Mich.  9;  Slater.  JJartlctt,  4a  X.  II. -iJl;  oglc- 
treo  V.  Stale,  28  Ala.  701;  Stale  r.  Crawford, 
11  Kan.  32,  In  a  case  like  this,  when  the 
plea  of  insanity  is  in,  the  question  of  the 
sanity  or  insanity  of  the  accused  is  before 
the  jury,  and  is  to  be  passed  upon  by  tliem, 
whether  tho  defendant  has  introduced  evi- 
dence upon  the  subject  or  not.  It  is  the  duty 
of  the  jury  to  consider  not  only  the  evidence 
directed  specially  to  tho  quostion  of  the 
mental  condition  of  the  accused,  but  also  all 
circumstances  developed  by  tho  evidence 
bearing  upon  tho  question.  In  some  cases 
the  circumstances  attending  the  killing,  and 
the  whole  evidence  on  the  part  of  the  State, 
may  be  such  as  to  completely  overthrow  the 
presumption  of  sanity  without  any  evidence 
at  all  on  tho  part  of  the  defendant.  How 
much  weight  the  conduct  of  the  accused, 
and  tho  circumstances  attending  the  killing, 
should  have,  as  bearing  upon  the  question  of 
his  sanity,  we  do  not  decide;  but  we  think 
they  were  such  that  he  had  the  right  to  have 
them  considered  by  the  jury,  whether  he 
Introduced  any  evidence  or  not.    We  cannot 


know  what  weight  the  Jury  nmy  have  given 
to  the  tesliinony  on  the  part  of  the  defend- 
ant. I'nlcHS  they  regarduil  il  as  siilllcient  of 
itself  to  raise  ii  reasonable  douhl  of  his 
sanity,  they  could  not,  under  this  instruc- 
tion, (consider  that  (luestion. 

Other  instructions,  |)erhaps,  stated  the  law 
upon  the  Huliject  correctly,  but  the  seven- 
teenth was  not  \\ilhd:a\vn,  and  taken  to- 
geiher  they  would  teml  to  mislead  rali.er 
than  to  enli^'hlen  the  jury.  Any  erroneous 
instruction  in  a  criminal  ease  cannot  be  (cor- 
rected by  another  which  slates  tlio  law 
Correctly,  unless  the  erroneous  instruction 
in  a  criminal  case  cannot  be  corrected  by 
another  which  states  tho  law  correctly, 
unless  the  erroneous  instruction  be  lliereby 
l)lainly  withdrawn  from  tho  jury.  Kingens 
v.  Slate,  45  Ind.  01 ;  Howard  v.  Stale,  jo  Ind. 
1!M). 

If  Instructions  are  inconsistont  with  each 
other,  so  that  the  jury  aro  loft  in  doubt  or 
uncertainty  as  to  the  law  applicable  to  the 
fads  of  the  case,  the  judgment  will  be 
reversed.    Kirland  r.  State,  4;i  Iml.  llti. 

As  tho  jml^'inent  must  bo  reversed  on 
aci'ount  of  eror  in  giving  tho  seventeenth 
iiisiruetion,  we  will  not  consider  oilier  (lues- 
tions  discussed  by  ciiunsel.  The  judgment  is 
reversed,  with  inslruciious  to  tho  court  be- 
low to  grant  a  new  trial. 

In  State  V.  Jones,  17  N.  W.  Ucp.  Oil,  decided 
by  the  Supreme  Court  of  Iowa  in  Keccmber, 
188:i,  the  prisoner  being  indicted  for  murder 
in  the  first  degree  set  up  as  a  defence  that 
he  was  insane.  Two  errors  on  the  trial  were 
noticed  by  llie  Supreme  Court  and  tho  con- 
viction reversed.  They  are  fully  set  out  in 
tho  opinion  of  A  dajis,  J.,  who  said;  "The 
couit  gave  an  instruction  in  these  words: 
"  You  have  evidence  of  the  conduct,  lan- 
guage, and  appearance  of  the  accused  during 
the  time  of  the  alleged  killing,  during  which 
time  it  is  alleged  that  he  was  insane.  You 
are  to  consider  all  iho  facts  which  you  find 
to  bo  established  by  the  evidence,  and  which 
relate  to  the  conduct,  language,  and  appear- 
ance of  the  defendant  during  that  time ;  and 
you  should  consider  them  for  tho  double 
purpose  of  testing  the  value  of  the  opinions 
of  such  witnesses  as  have  given  opinions  on 
iho  question  of  the  defendant's  insanity, 
based  upon  such  facts,  and  of  determining 


878 


EVIDENCE  AXD  PRACTICE. 


Notes. 


§99.  Appeal. —  The  trial  on  the  main  charge  in  the  indictment  will  not  be 
postponed  because  of  an  appeal  to  the  Supreme  Court  from  a  preliminary  find- 
ing of  a  jury  against  him  on  a  plea  of  lusanity  at  the  trial.^ 


■V 


1  People  V.  Moicc.  15  Cal.  329  (1860). 
whether  the  fact  of  insanity  is  established 
independent  of  such  opinions."    The  de- 
fendant assigns  the  giving  of  this  instruction 
as  error.    The  objection  urged  is  that  the 
]ury  was  told  in  substance  that  if  they  found 
the  defendant  insane  (hey  must  so  And  from 
facts  independent  of  opinions.    We  hardly 
think  that  the  instruction,  even  when  taken 
by  itself,  is  susceptible  of  such  construction. 
But  the  jury  was  expressly  told,  in  another 
instruction,  that  they  were  to   determine 
what  V  ci^ht  and  credit  should  be  given  to 
the  opinions  of  witnesses  upon  the  question 
of  insanity.    The  jury,  we  think,  could  not 
have  been  misled  in  the  way  which  the  de- 
fendant claims.     While   we  say   this,  we 
ought,  perhaps,  to  say  that  we  do  not  regard 
the  question  as  to  whether  insanity  was  fully 
established  by  facts  independent  of  opinions 
necessary  to  be  considered.    It  is  true  that 
the  facts,  as  the  court  said,  were  to  be  con- 
sidered for  a  double  purpose.    But,  in  defin- 
ing the  double  purpose,  we  should  have  been 
better  pleased  if  the  court  had  said  that  they 
might  be  considerrd  for  the  purpose  of  test- 
ing the  value  of  the  opinions,  and  upon  the 
question  as  to  how  far  they  tended  to  estab- 
lish the  fact  of  insanity  independent  of  the 
opinions.    We  make  this  criticism  the  more 
freely  because  we  have  reached  the  c  nclu- 
sion  that  for  errors  to  be  pointed  out  here- 
after   the    case    m-'sl,    be  reversed    and 
remanded  for  p.iother  trial.    The  instruc- 
tion alove  set  out  in  our  opinion  contains 
en  or.    The  Jury  was  directed  to  consider  the 
facts,  relating  ti)  the  conduct:  language,  and 
appearance  oi  the  defendant  duHn(7<A«<ime 
of  the  alleged  killing.    Now,  while  it  is  true 
that  it  was  not  material  whether  the  defend- 
ant was  insane  at  any  other  time,  if  ho  was 
sane  nt  that  time,  yet  his  condu>rt,  language 
and  appearance  at  other  times  were  not  to 
be  excluded.    Thera  was  no  evidence  what- 
ever as  to  the  conduct,  language  and  appear- 
ance of  the  defendant  at  the  precise  time 
when  Roberts  was  killtiCt     He  was  seen  by 
others  on  tpat  day,  but  the  evidence  of  in- 
sanity pertains  to  other  days.    The  evidence 
showed  that  he  was  insane  in  early  life,  and 
had  not  fully  recovered  when  he  came  to 
Western  Iowa.    There  was  evidence  tending 
to  show  that  from  the  time  of  his  first  in- 
sanity "any  trouble"  (to  use  the  language 


of  the  witness)  "would  throw  him  oif  his 
balance."  Four  relatives  of  the  defendant 
testified  to  his  changed  mental  condition 
from  the  time  his  trouble  with  Roberts  com- 
menced, and  they  gave  their  opinion  tl.at 
he  was  insane.  Two  others,  who  do  not 
appear  to  be  relatives,  testified  to  strange 
conduct  of  the  defendant,  and  gave  their 
opinion  that  he  was  insane.  In  addition  to 
that,  one  physician  testified  that  he  made  aa 
examination  of  him,  and  regarded  him  as 
insane.  While  the  court  did  not  say  that 
the  Jury  should  not  consider  the  conduct, 
language  and  appearance  of  the  defendant 
at  times  other  than  that  of  the  alleged  kill- 
ing, the  tendency  of  the  instruction  was  to 
confine,  by  implication,  the  attention  of  the 
Jury  to  that  time.  In  this  it  appears  to  u.s 
there  was  error. 

The  court  gave  an  instruction  in  these 
words :  "The  burden  is  on  the  defendant  to 
establish  by  a  preponderance  of  evidence 
that  at  the  tinie  of  the  killing  of  Roberts* 
if  he  did  kill  him,  he  was  in  such  a  state 
of  insanity  <>.s   not  to  be  accountable  for 
the  act;  a:id  if  the  evidence  goes  no  further 
than  to  .'.how  that  such  a  state  of  mind  was 
possible  or  merely  probable,  it  is  not  suffi- 
cient, but  it  must  go  further  and  overcome 
the  presumption  of  sanity,  and  fairly  satisfy 
you  that  he  was  not  sane."    The  giving  of 
this  instruction  is  assigned  as  error.    Ii>  our 
opinion  the  instruction  cannot  be  sustained. 
If  it  was  made  probable  to  the  jury  that  the 
defendant  was  so  far  insane  as  not  to  be- 
accountable  for  his  acts,  we  think  that  he 
should    have    been    acquitted.    Worcester 
defines  probable  as  "  having  more  evidence 
than  the  c  itrary."    Webster  defines  it  as 
"having  more  evidence  for  than  against." 
We  think  that  it  was  siifflcient  if  the  evi- 
dence of  insanity  preponderated.    The  idea 
of  the  court  seems  to  have  been  that  as 
the  presumption  of  sanity  counts  for  some- 
thing, it  cannot  be  said  to  be  overcome  by 
a  bare  preponderance  of  evidenoe.    There  is 
a  course  of  reat<oning  which  might,  perhaps, 
seem  to  support  this  view.    The  difference 
between  a  bare  preponderance  of  evidence 
and  tliat  which  is  next  less  might  be  said  to 
be  infinitely  small,  and  tha'  what  is  infinitely 
small  cannot  be  wciglicd  or  appreciated. 
But  such  considerations  are  too  refiuod.^ 


OPTNIONS   ON   INSANITY. 


879 


Experts  and  Ordinary  Witnesses. 


§  100.  Opinions  on  Insanity — Experts. —  The  sanity  or  insanity  A  the  prisoner 
Is  proved  by  the  evidence  of  persons  acquainted  with  him  or  of  medical  experts 
whose  opinions  are  founded  on  observation,  or  examination,  or  upon  a  hypo- 
thetical case  stated  to  them  In  court.*  For  the  rules  on  this  subject  see  my  book 
on  Expert  and  Opinion  Evidence.* 


The  rule  as  to  the  presumption  of  sanity  has 
its  practical  application  in  imposing  the  bur- 
den of  proof  upon  him  who  sets  up  insanity. 
This  is  all.  The  presumption  is  not  to  be 
weighed  against  any  measurable  amount  of 
evidence.  The  judgment,  v  e  think,  must  be 
reversed  and  the  case  remanded  for  another 
trial. 

Seevers,  J.,  filed  the  following  dissent 
from  the  opinion  of  the  court  on  these 
points:  1.  I  do  not  believe  the  instruction 
set  out  in  the  fourth  paragraph  of  the  fore- 
going opinion  is  erroneous.  The  material 
Inquiry  was  whether  the  defendant  was  in- 
sane at  the  time  the  homicide  was  com- 
mitted. His  acts  and  conduct  at  that  time, 
therefore,  were  material  as  bearing  on  this 
quest  on.  It  is  immaterial  whether  defend- 
ant was  insane  prior  to  the  homicid.c  if  he 
was  not  insane  then.  The  acts  and  conduct 
of  the  defendant  prior  to  the  homicide, 
bearing  on  the  quebtion  of  his  insanity  at 
the  time  of  t:'e  homicide,  are  not  excluded 
from  the  consideration  of  the  jury,  unless  it 
can  be  said  to  have  been  ■  le  by  Imphca^ 
tion.  But  If  this  is  so,  the  i  ruction  is  not, 
therefore,  erroneous.  But  in  my  opinion  no 
such  Implication  can  bo  drawn.  2.  This 
court  has  held,  in  more  than  one  adjudged 
case,  that  when  the  defense  is  insanity  the 
burden  is  on  the  defendant  to  establish  such 
defense  by  a  preponderance  of  the  evidence ; 
and  this,  and  no  more.  Is  the  tho-.ight  of  the 
instruction  set  out  in  the  sixth  piragraph  of 
the  foregoing  opinion.  By  the  use  of  the 
word  'probable'  the  court  meant  this, and 


no  more,  and  so  the  jury,  I  think,  under- 
stood the  Instruction.  It  seems  to  me- 
that  the  reasv.  ning  of  the  foregoing  opin- 
ion upon  the  ^  oints  above  mentioned  is 
refined,  technical,  and  without  substantial 
merit.  The  court  plainly  stated  that  insanity 
must  be  establisiied  by  a  preponderance  of 
the  evidence,  and  they  could  not  h  ve  under- 
stood that  any  other  rule  was  am  ounccd  in 
the  instruction.  I  think  it  is  ui  fair  to  the 
court,  and  not  required  by  the  c;  se,  to  resort 
to  dictionaries  for  a  definition  of  the  word 
'  probable,'  when  the  connection  in  which 
the  WO'  1  is  used  is  taken  into  consideration. 
When  ihe  instruction  as  a  whole  is  consid- 
ered, I  am  unable  to  conclude  that  the  word 
in  question  as  used  was  prejudicial.  RoTH- 
KOCK,  J.,  concurred  in  this  dissent. 

In  Flanig  xn  v.  People,  86  N.  Y.  554,  it  was 
held  that  vol-jntary  drunkenness  was  no 
defence  to  a  crime. 

1  Holcomb  V.  Sticte,  41  Tex.  125  (1874) ; 
McClackey  v.  State,  5  Tex.  (App.)  320  (1S78) ; 
Gehrke  v.  State,  13  Tex.  568  (1855) ;  McAllis- 
ter f.  State,  17  Ala.  434  (1850);  Armour  r. 
State,  63  Ala.  173  (1879) ;  People  v.  Thurston, 
2  Park.  49  (1852) ;  It.  v.  Francis,  4  Cox,  67 ; 
R.  V.  Searle  1  M.  &  Rob.  75  (1831);  R.  v. 
Wright,  Russ.  &Ry.4.56  (1821) ;  Clark  r.  State, 
12  Ohio,  4*> ;  40  Am.  Dec.  481  (1843) ;  Pigg  v. 
Statfl,  43  Tex,  108  (1878) ;  Webb  v.  State,  5 
Ter.  ( ipp.)  596. 

s '. .  iie  Law  of  Expert  and  Opinion  Evidence 
Reduced  to  Rules.  By  John  D.  Lawson.  St. 
Louis :    F.  H.  Thomas  &  Co.   1883. 


CIIAPTEK    VI. 

INSANITY  AT   TRIAL   OR  AFTER   CONVICTION. 


INSANITY  AT  TRIAL- VERDICT  OF  JURY  THAT  nilSONEK  IS  UN^UiLE 

TO  PLEAD  — PRACTICE. 

CoM3IONWEALTJI    V.  BiJALEY. 

[1  Mass.  103.] 

In  the  Supreme  Judicial  Court  of  Massachusetts,  October  Term,  1804. 

Hon,  FuAXciy  Daxa,  Chief  Justice. 
"     SiMKON  Stkoxo,  ^ 

"       TlIKODOKK  Si:iKiWICK, 

"    Samukl  Skwkll,  r  Judfjes. 

"    George  Tiiaciier,  I 

On  an  Indictment  for  a  Capital  Crime  if  lite  Jury  And  that  tlic  prisoner  neglects  to 
l)lead  by  the  act  of  God,  the  court  will  not  try  him  upon  the  indictment. 

The  prisoner  was  indicted  for  the  murder  of  his  wife.  On  Tuesday, 
the  third  day  of  tliis  torrn,  Le  was  set  to  the  bar  and  the  indictment  was 
read  to  him.  Upon  being  asked  the  usual  question  whetli^  he  was 
guilty  or  not  guilty,  the  prisoner  in  a  voice  scarcely  audible,  said  he 
did  not  know  what  to  say  ;  thrt  it  appeared  to  him  she  was  still  alive  ; 
it  seemed  to  him  he  had  seen  aer  since.  The  court  told  him  he  must 
say  guilty  or  not  guilty,  upon  w'.iicli  he  made  nearly  t,ie  same  answer  as 
before.  After  a  few  moments  had  elaps'jd  the  court  asked  him  whether  he 
was  71010  disposed  to  plead,  and  told  h.m  he  was  charged  with  killing  his 
wife.  He  again  answei-ed  as  he  hr.d  before  and  added  tliat  he  was 
guilty  of  what  he  had  donu,  but  did  not  know  what  he  had  done.  The 
court  then  informed  him  that  he  should  have  time  till  the  next  day  to 
consider  of  the  charge  and  remanded  him  to  prison.  On  the  next  day 
he  was  again  set  to  the  ])ar,  and  arraigned  on  the  indictment,  when  he 
said  he  was  guilty  of  all  he  had  done,  he  must  confess  ;  but  no  direct 
or  positive  answer  could  be  obtained  from  him. 

From  the  appearance  and  conduct  of  the  prisoner  at  the  several  times 
he  was  arraigned,  the  court  were   inclined  to  believe  tiiat  he  was  in  a 
5^  (881) 


882 


INSAMTV    AT   TIJIAL    OK   AFTEK    CONVIf  TION, 


Freoniuii  v.  rt'Oplc. 


state  ot  mental  derangement,  and  it  also  appearing  that  soon  after  the 
supposed  murder  of  his  wife,  he  had  cut  his  own  throat  in  such  a  man- 
ner as  to  endanger  his  life,  a  jur^'  was  immediately  empanelled  and 
swoi-n  "  well  and  truly  to  try  between  the  Conmion wealth  and  the  pris- 
oner at  the  bar  whether  he  neglected  or  refused  to  plead  to  the  indict- 
ment against  him  for  murder,  of  his  free  will  and  malice,  or  whether 
he  did  so  neglect  by  the  act  of  God." 

The  jury  found  that  he  did  so  neglect  by  the  act  of  God. 

Whereupon  the  prisoner  was  remanded  to  jail. 


INSANITY  AT  TRIAL 


-TEST  OF  INSANITY  — SUBSEQUENT  INSANITY - 

evidence. 
Freeman  v.  People. 


[4  Deuio,  9;  47  Am.  Dec.  21(;.] 
In  the  Supreme  Court  of  New  York^  January^  1847. 


Hon.  Greene  C.  Bronson,  Chief  Justice. 
"    Samukl  Beardsley, 
"    Freeborn  G.  Ji 


>SLEY,       ) 

h:\vETT, ) 


Justices. 


1.  A  Person  while  be  Continues  Insane  cannot  lie  tried  or  punished:  aliter.iihe  be 

capable  of  comprelieiidiug  his  position  and  of  making  his  defence,  though  on  some  sub- 
jects his  mind  msiy  be  deranged. 

2.  Insanity  at  the  Trial  should  be  tried  by  a  jury ;  but  other  methods  may  be  adopted  by 

the  court  in  Us  discretion. 

3.  Test  of  Insanity .  — The  test  of  insanity,  when  alleged  as  a  defence  to  an  indictment, 

is  whether,  at  the  time  of  committing  the  act,  llie  prisoner  was  laboring  under  such 
me  ital  disease  as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing,  or  that  it 
was  wrong. 

4.  On  a  Trial  of  Present  Insanity  the  prisoner  is  not  entitled  to  peremptory  challenges. 

The  right  to  peremptory  challenges  exists  only  as  to  the  trial  on  the  indictment  and  nut 
t)n  the  trial  of  preliminary  or  collateral  issues. 

5.  Evidence  of  Subsequent  Insanity. —  On  the  trial  of  an  indictment  for  murder  the 

court  refused  to  permit  evidence  to  be  given  that  the  prisoner  was  insane  at  any  time 
aficr  the  iiuding  of  the  verdict  on  the  preliminary  issue  of  iuL-anity  at  the  trial.  Held, 
error. 

6.  Same.  — Where  the  prisoner  was  tried  for  murder,  four  months  after  the  crime  wa.-^ 

committed,  evidence  tliat  he  was  insane  at  the  time  of  the  trial  was  relevant  on  the 
question  of  his  insanity  four  months  before. 


Error  to  the  Cayuga  Court  of  Oyer  and  Terminer. 


I 


FREEMAN   V.  PEOPLE. 


885 


statement  of  L'ase. 


•  the 
man- 
and 
pris- 
dict- 
jther 


lY— 


he  be 
sub- 

;edby 

ment, 
such 
hat  il 

ngCB. 
id  mil 

[?i-(he 
time 
Held, 

was 
u  the 


1 


Indictment  was  found  against  Freeman  for  the  murder  of  John  G. 
Van  Nest,  on  March  12,  1846.  On  June  1st  of  the  same  year,  when 
tlie  accused  was  about  to  be  arraigned,  liis  counsel  pleaded  that  he  was 
then  insane.  The  prisoner  ^vas  then  remanded  ;  but  on  June  24th  was 
brought  into  court,  and  a  jury  was  impanelled  to  ascertain  whether  he 
was  sufficiently  sane  "  to  be  required  to  i)iead  to,  and  to  be  trierJ.  upon 
said  indictment."  The  verdict  of  the  jury  was:  "We  find  the  pris- 
oner sufflcienty  sane  in  mind  and  memory  to  distinguish  between  right 
and  wrong."  The  verdict  was  excepted  to,  and  the  court  was  askei  to 
instruct  the  jury  to  find  whether  the  prisoner  was  sane  or  iiis'ips.  This 
request  was  denied.  On  the  sixth  day  of  July  the  prisonoi-  was  ar- 
raigned. His  counsel  objected  on  the  ground  that  the  Acrdict  was  de- 
fective. The  objection  being  overruled,  he  excepted.  The  defence  was 
to  the  effect  that  the  defendant  was  insane  or  idiotic.  The  proceedings 
upon  the  trial  sufficiently  appear  in  the  opinion.  Verdict  of  guilty  was 
rendered  and  the  prisoner  sentenced  to  be  executed. 

W.  II.  Seward,  for  the  prisoner. 

L.  Sherwood,  District  Attorney,  and  J.  Van  Buren,  Attorney-Gen- 
eral, for  the  People. 

Beardsley,  J.  — The  prisoner  was  tried  at  a  Court  of  Oyer  and  Termi- 
ner, held  for  the  County  of  Cayuga,  and  found  guilty  of  the  crime  of  mur- 
der, upon  which  verdict  sentence  of  death  was  pronounced.  In  the 
course  of  the  trials,  preliminary  and  final,  a  multitude  of  exceptions 
were  taken  by  the  prisoner's  counsel,  which,  with  the  record  of  the  con- 
viction and  sentence,  have  been  brouglit  into  this  court  by  writ  of 
error.  These  excejjtions,  or  such  of  them  as  the  counsel  for  the  pris- 
oner supposed  to  be  available,  were  argued  at  the  last  term  of  this  court, 
and  having  since  been  examined  and  considered  with  care  and  delibera- 
tion, we  are  now  prepared  to  dispose  of  them  b}'  rendering  judgment 
on  the  case  before  us. 

When  the  prisoner  was  brought  before  the  Court  of  Oj'er  and  Ter- 
miner, to  be  arraigned  on  the  indictment,  a  plea  that  he  was  then  insane 
was  interposed  by  counsel  on  his  behalf,  which,  being  denied  by  the 
public  prosecutor,  a  jury  was  impanelled  to  try  the  issue  so  joined.  On 
the  trial  of  this  issue  various  objections  were  made  and  exceptions 
taken  by  the  prisoner's  counsel,  and  the  first  question  to  be  decided  is, 
whether  these  exceptions  can  be  re-examined  on  a  writ  of  error. 

The  statute  declares  that  "  no  insane  person  can  be  tried,  sentenced 
to  any  punishment,  or  punished  for  any  crime  or  offence,  while  he  con- 
tinues in  that  state.  "1  This,  although  new  as  a  legislative  enactment  in 


1  2  R.  S.,  p.  607,  sect.  '.'. 


884 


INSANITY   AT   TIMAL   OR   AFTER   CONVICTION, 


Freeman  v.  People. 


this  State,^  was  not  introductory  of  a  new  rule,  for  it  is  in  strict  con- 
formity with  the  common  law  on  the  subject.  "If  a  man,"  says  Sir 
William  Blackstone,  "  in  his  sound  memory  commits  a  capital  otence, 
and  before  arraignment  for  it  he  becomes  mad,  he  ought  not  to  be  ar- 
raigned for  it,  because  he  is  not  alile  to  plead  to  it  with  that  advice  and 
caution  that  he  ought.  And  if,  after  he  has  pleaded,  the  prisoner  becomes 
mad,  he  shall  not  be  tried :  for  how  can  he  make  his  defence?  If,  after 
he  be  tried  and  found  guilty,  he  loses  his  senses  before  judgment,  judg- 
ment should  not  be  pronou'  d ;  and  if,  after  judgment,  he  becomes 
of  non-sane  memory,  execu  .ion  shall  be  stayed,  for  peradventurc,  says 
the  humanity  of  the  English  law,  had  the  prisoner  been  of  sound  mem- 
ory, he  might  have  alleged  something  in  stay  of  judgment  or  execu- 
tion. Indeed,"  it  is  added,  "  in  the  bloody  reign  of  Henry  tlie  Eighth 
a  statute  was  made  which  enacted,  that  if  a  person,  being  compos 
mentis,  should  commit  high  treason,  and  after  full  into  madness,  he 
might  be  tried  in  his  absence,  and  should  suffer  death,  as  if  he  were  of 
perfect  memory.  But  this  savage  and  inhuman  law  was  repealed  ])y 
the  statute  of  1  and  2  Ph.  «&  M.-  For,  as  is  observed  by  Sir 
Edward  Coke,  '  the  execution  of  an  offender  is,  for  example,  lit  poena 
adpaucos,  metus  ad  omnes,  perveneat ;  but  so  it  is  not  when  a  madman 
is  executed,  but  should  be  a  miserable  spectacle,  both  against  law  and 
of  extreme  inhumanity  and  cruelty,  and  can  be  no  example  to  others.'  "  ^ 

The  true  reason  why  an  insane  person  should  not  be  tried,  is,  that  he  is 
disabled  by  an  act  of  God  to  make  a  just  defence,  if  he  have  one. 
As  is  said  in  4  Harg.  State  Trials:"*  "There  may  be  circumstances 
lying  in  his  private  knowledge,  which  would  prove  his  innocency,  of 
which  he  can  have  no  advantage,  becaus^"^  not  known  to  the  persons  who 
shall  take  upon  them  his  defence."  The  most  distinguished  writers  on 
criminal  jurisprudence  o-oncur  in  these  humane  views,  and  all  agree  that 
no  person,  in  a  state  of  insanity,  should  ever  be  put  upon  his  trial  for 
an  alleged  crime,  or  be  made  to  suffer  the  jii<lgment  of  the  law.  A 
madman  cannot  make  a  rational  defence,  and  as  to  punishment,  furiosus 
solo  furore  puniter.  ■'• 

The  statute  s  explicit  that  "  no  insane  person  can  be  tried,"  but  it 
does  not  statt-  in  what  manner  the  fact  of  insanity  shall  be  ascer- 
tained. That  is  left  as  at  common  law,  and  although  in  the  discretion 
of  the  court     ther  modes  than  that  of  a  trial  by  a  jury  may  be  resorted 


1  ?,  Id.,  ssx. 

a  C.    10. 

2  4  Bla.  Com.  24. 
*  p.  205. 


•IHalc  P.  C.  34,  35;  4  Bl.  Com.  396-6;  1 
Chii.  Cr.  L.  (ed.  1841),  p.  761;  1  Uuss.  on  Cr. 
(ed.  1845),  p.  14;  Shelf,  on  Lunacy,  4C7— 8; 
Stock,  on  Non.  Conip.  35—0. 


TRIAL   OF   rUESENT    INSAMTV. 


885 


Cliallcnjro  of  Jurors. 


Ig- 


'  »'  3 


to,  still,  in  important  cases,  that  is  regarded  as  the  most  discreet  and 
proper  course  to  be  adopted  J 

At  common  law  the  only  regular  mode  of  redress  for  errors  occurring 
on  criminal  trials  was  by  motion  for  a  now  trial,  in  the  court  where  the 
trial  was  had,  unless  the  error  was  in  some  matter  which  formed  a  part 
of  the  record,  wlien  it  might  be  reviewed,  after  judgment,  by  writ  of 
error.  Bills  of  exception,  by  which  questions  of  law,  made  and  decided 
on  such  trials,  may  be  brought  up  and  reviewed  in  a  higher  court,  were 
unknown  to  the  common  law,  although  now  allowed  by  a  statute  of  this 
State.  But  the  statute  is  limited  to  exceptions  taken  on  the  tiial  of  the  main 
issue,  and  does  not  reach  such  as  are  made  on  the  trial  of  a  preliminar}- 
or  collateral  question.  The  words  are  "  on  the  trial  of  any  indictment, 
exceptions  to  any  decision  of  the  court  may  be  made  by  the  defendant, 
in  the  same  cases  and  manner '^'ovided  by  law  in  civil  cases."  -  A  trial 
of  the  qjiestion  of  present  Insanity  is  not  a  trial  of  the  indictment,  but 
is  preliminary  to  bitch  trial.  The  object  in  such  a  case,  issimpl}'  to  de- 
termine whether  the  person  charged  with  an  offence  and  alleged  to  be 
insane,  shall  be  required  to  plead  and  proceed  to  the  trial  of  the  main 
issue  of  guilty  or  not  guilty.  The  statute  does  not  authorize  exceptions 
to  be  taken  on  such  preliminary  trial ;  and  if  errors  occur,  they  must 
be  corrected,  if  at  all  as  at  common  law,  by  the  court  which  committed 
them.  For  this  reason,  none  of  the  exceptions  taken  by  the  prisoner's 
counsel  on  the  trial  of  the  preliminary  issue  in  th's  case  can  be  regarded 
as  regularly  before  us  ;  nor  could  they,  if  held  to  be  well  taken,  consti- 
tute a  ground  for  reversing  the  judgment  of  the  court  below. 

This  part  of  the  case  might  here  be  dismissed  ;  but  I  choose  not  to 
do  so  lest  an  implication  should  be  supposed  to  arise  that  in  the  opinion 
of  this  court  the  preliminary  trial  was  conducted  throughout  with  regu- 
larity and  according  to  law. 

On  the  preliminary  trial  the  counsel  for  the  prisoner  claimed  the  right 
to  challenge  jurors  peremptorily,  as  it  is  conceded  to  exist  on  the  trial 
of  the  main  issue.  This  the  court  refused  to  allow,  and,  it  seems  to  me, 
correctly.  Peremptory  challenges  are  allowed  in  favorem  vit(je,  and  at 
common  law  are  restricted  to  the  main  issue,  in  which  the  life  of  the 
party  is  in  jeopard}',  and  cannot  be  made  on  the  trial  of  any  collateral 
issue  whatever.  3  To  the  like  effect  is  the  statute,  which  secures  to 
"  every  person  arraigned  and  put  on  his  trial  for  any  offence  punishable 


'  See  the  authorities  last  rcfeiTcil  t(i. 
Also  1  Hawk  P.  C.  by  Curwood,  p.  3,  and 
note,  Steph.  Cr.  L.  3,  4,  280,  334. 

8  2  K.  S.  7:}6,  §  21.     See  also  3  Id.,  849. 


2  2  Hale's  r.  C.  267,  c.  35  ;Bar.  Abr.,  Juries, 
E.  9;  Foster's  Cr.  L.,  42;  4  r.l.  Com.  ;!,')3,  390; 
Co.  Lit.  156  b.;  King  r.  Kadcliffe,  1  W.  BL 
3,0, 


880 


INSANITY   AT   TRIAL    OR    AFTER    COXVICTION. 


Froemiin  «.  People. 


with  death,  or  with  imprisonment  in  a  State  prison  ten  years  or  any 
longer  time,"  the  right,  ''  peremptorily  to  challenge  twenty  of  the  per- 
sons drawn  as  jurors  for  such  trial."  '  This  preliminary  trial  was  not  a 
"trial  for  any  offence  "  whatever,  and  there  was  no  error  in  refusing  to 
allow  peremptory  challenges  to  be  made.  Challenges  for  cause  are  al- 
lowable on  the  trial  of  preliminary  as  well  as  final  issues.  This  was 
conceded,  and  several  of  tliis  description  were  interposed  on  belialf  of 
the  prisoner.  I  pass  by  these  without  particular  examination,  as  this 
class  of  challenges  Avill  again  be  presented  for  consideration  before  the 
case  is  closed,  when  such  suggestions  will  be  made  as  are  deemed  per- 
tinent to  this,  as  well  as  other  parts  of  the  case. 

An  objection  was  made  to  the  oath  as  administered  to  some  of  the 
triers  of  challenges  to  jurors  drawn  for  this  preliminary  trial.  The 
oath  was  thus:  "  You  do  solemnly  swear  that  you  will  well  and  truly 
try  and  well  and  truly  find,  whether  the  juror  is  indifferent  between  the 
People  of  the  State  of  New  York  and  the  prisoner  at  the  bar,  upon  the 
issue  joined."  This  form  of  oath  was  not  administered  in  every  in- 
stance, the  qualification  at  its  close,  made  by  the  words  "  upon  the  issue 
joined,"  being  sometimes  omitted,  as  it  should  have  been  throughout. 
The  oath  as  given  in  books  of  approved  credit  and  authority  contains  no 
such  limitation,  but  requires  the  triers  to  find  whether  the  juror  is  or  is 
not  indifferent  between  the  parties  to  the  controversy. ^  And  jurors 
should  be  so.  It  is  not  enough  that  they  are  indifferent  upon  the  par- 
ticular issue  to  be  tried.  An  actual  and  thorough  impartiality  in  re- 
gard to  the  parties  is  required  ;  for  no  one  who  labors  under  prejudice, 
malice,  or  ill-will  towards  another  can  be  in  a  fit  frame  of  mind  to  act 
impartially  where  his  rights  are  in  question. 

In  Brittain  v.  Allen,^  the  defendant  challenged  a  juror  for  cause,  to  wit, 
hostility  between  the  juror  and  the  party  challenging.  The  challenge 
was  overruled  and  the  juror  was  sworn.  On  a  motion  for  a  new  trial, 
Henderson,  C.  J.,  said :  "'  It  seems  that  the  judge  disregarded  all  kinds 
of  hostility  but  that  which  related  to  the  particular  suit  then  to  be  tried. 
I  think  that  the  law  is  otherwise.  The  juror  should  be  perfectly  im- 
partial and  indifferent ;  causes  apparently  very  slight  are  good  causes 
of  challenge,  and  that  which  is  good  cause  for  quashing  the  array,  is 
good  cause  of  ciiallenge  to  the  polls.  I  mention  this,  as  most,  at  least 
many  of  the  cases,  are  challenges  to  the  array.     If  the  sheriff  be  liable  to 


I 


1  2  R.  S.  734,  sect.  9. 

-  Tr.  Per.  Pais,  205;  1  Chit.    Cr.    L.  549; 
Bac.  Abr.,  Juries,  E.  12,  note;  Clark  v.  Os- 


trander,  1  Cow.  441,  note  (13  Am.  Dec.  546) ; 
Anonymous,  1  f*alk.  152. 
a  2  Dev.  V'l. 


TRIAL   OF   PKE8ENT   INSANITY. 


887 


Challenges  —  Triers  —  ( )ath . 


546); 


the  distress  of  either  party,  or  if  he  be  his  servant  or  counsellor,  or  if 
he  has  been  godfather  to  a  cliild  of  eitlier  of  the  parties,  or  either  of 
them  to  his ;  or  if  an  action  which  implies  malice  as  assault  and  btittery, 
slander,  or  the  like,  is  depending  between  them,  these  all  are  causes  of 
principal  challenge.*  From  these  cases,  particularly  the  one  whicli 
states  a  suit  pending  which  implies  malice,  it  appears  that  general  hos- 
tility, by  which  I  mean  that  which  is  not  confined  to  the  particular  suit, 
is  cause  of  challenge.  From  these  causes,  the  law  of  itself  implies  a 
want  of  indifference,  which  the  defendant  offered  to  show.  I  think  he 
ought  to  have  been  permitted  to  do  so,  and  if  he  succeeded,  that  the 
juror  should  not  have  been  sworn.  For  this  cause,  and  for  this  only, 
there  should  have  been  a  new  trial,"  So  in  the  case  at  bar,  the  oath 
only  required  the  triers  to  find  indifference  between  the  parties  "  upon 
the  issue"  then  to  be  decided.  In  other  rcsi)ects,  if  the  clause  is  sus- 
ceptible of  any  meaning,  the  juror,  although  a  sworn  enemy  of  the  pris- 
oner, might  still  be  found  by  the  triors  to  be  a  competent  and  i)roi)er 
person  to  pass  upon  the  question  then  to  be  decided.  This  wouhl  he  in- 
tolerable, and  an  oath  which  requires,  or  will  admit  of  such  a  construction, 
cannot  be  correct.  There  is  no  precedent  for  one  in  this  form  ;  as  will  be 
seen  on  looking  at  the  authorities  already  referred  to.  At  the  very  best, 
the  clause  objected  to  is  unmeaning  or  ambiguous.  But  an  oatii  should 
be  plain,  explicit,  and  free  from  all  ambiguity.  If  this  clause  does  not 
necessarily  affix  an  improper  limitation  to  the  obligation  which  the 
law  seeks  to  cast  upon  the  trier  by  the  oath  administered  to  him,  it  is 
very  liable  so  to  be  construed  and  understood  as  to  have  that  effect. 

In  charging  the  jury  on  the  preliminary  issue,  which,  we  have  seen 
was  on  the  fact  of  present  insanity,  the  court  said,  "  The  main  question 
with  the  jury  was  to  decide  whether  the  prisoner  knew  right  from 
wrong ;  if  he  did,  then  he  was  to  be  considered  sane." 

The  statute  before  cited  is  emphatic  that  ''  no  insane  person  can  be 
tried."  In  its  terms  the  prohibition  is  broad  enough  to  reach  every 
possible  state  of  insanity,  so  that  if  the  words  are  to  be  taken  literally, 
no  person  while  laboring  under  insanity  in  any  form,  iiowever  partial 
and  limited  it  jnay  be,  can  be  put  ui)on  his  trial.  But  this  the  legisla- 
ture could  not  have  intended ;  for  although  a  person  totally  bereft  of 
reason  cannot  be  a  fit  subject  for  trial  or  punishment,  it  by  no  means 
follows,  that  one  whose  insanity  is  limited  to  some  particular  object  or 
conceit,  his  mind  in  other  respects  being  free  from  disease,  can  justly 
claim  the  like  exemption.     This  clause  of  the  statute  should  receive  a 


1  Bac.  Abr.,  Juries,  E.  1. 


88H 


INSANITY   AT   TUIAL   Oii    AFTER    CONVICTION. 


rrecmun  v.  People. 


reasonable  interpretation,  avoiding  on  tlie  one  hand  what  would  tend  to 
give  impunity  to  crime,  and  on  the  other  seeking  to  attain  the  humane 
object  of  the  Legislature  in  its  enactment.  Tiie  common  law,  eciually 
with  this  statute,  forliids  the  trial  of  any  jierson  in  a  state  of  insanity. 
This  is  clearly  shown  by  authorities  which  have  been  referred  to,  and 
which  also  show  the  reason  for  the  rule,  to  wit,  the  incapacity  of  one 
who  is  insane  to  make  a  rational  defence.  The  statute?  is  in  afllrmance 
of  this  common  law  principle,  and  the  reason  on  which  the  rule  rests, 
furnishes  a  key  to  wiiat  must  have  been  the  intention  of  the  Legislature. 
If,  therefore,  a  person  arraigned  for  a  crime  is  capable  of  understand- 
ing the  nature  and  object  of  the  proceedings  going  on  against  him  ;  if 
he  rightly  comprehends  his  own  condition  in  reference  to  such  proceed- 
ings, and  can  conduct  his  defence  in  a  rational  manner,  he  is,  for  the 
purpose  of  being  tired,  to  be  deemed  sane,  although  on  some  other  sub- 
jects his  mind  may  be  deranged  or  unsound.  This,  as  it  seems  to  me, 
is  the  true  meaning  of  the  statute  ;  and  such  is  the  construction  put  by 
the  English  courts,  on  a  similar  clause  in  an  act  of  Parliament. 

By  the  .'5!)  and  40  George  IIL^  it  is  enacted  that  "  if  any  person  in- 
dicted for  any  offence  shall  be  insane,  and  shall  upon  arraignment  be 
found  so  to  be  by  a  jury  lawfully  impanelled  for  that  purpose,  so  tiiat 
such  person  cannot  be  tried  upon  such  indictment,  it  shall  be  lawful  for 
the  court  before  whom  any  such  person  shall  be  brought  to  be  arraigned 
to  direct  sucli  finding  to  be  I'ccorded,  and  thereupon  to  order  such  per- 
son to  be  kept  in  strict  custod\'  till  his  majesty's  pleasure  shall  be 
known."-  The  question  upon  this  statute  is  the  same  as  upon  ours, 
that  is,  is  the  alleged  offender  insane.  Russell  says:  •'  "  If  a  prisoner 
have  not  at  the  time  of  the  trial,  from  the  defect  of  his  faculties,  sufli- 
cient  intelligence  to  understand  the  nature  of  the  proceedings  against 
him  the  jury  ought  to  find  that  he  is  not  sane,  and  upon  such  finding,  he 
may  be  ordered  to  be  kept  in  custody  under  this  act."  For  this 
he  refers  to  the  case  of  Bex  v.  Di/non,*  before  Mr.  Justice  Parke,  in 
1831.  In  that  case  the  prisoner  was  indicted  for  murder,  and  on  being 
arraigned  stood  mute ;  a  jury  was  then  impanelled  to  try  whether  she 
did  so  by  malice  or  by  the  visitation  of  God,  and  they  found  she  did  so 
by  the  visitation  of  God.  The  judge  thereupon  examined  on  oath  a 
witness  who  was  acquainted  with  the  prisoner,  and  who  swore  that  she 
could  be  made  to  understand  some  things  by  signs,  and  could  give  her 
The  witness  was  then  sworn  to  interpret  and  make 


answers  by  signs. 


1  Ch.  94,  sect.  2. 
- 1  Rus>s.  on  Cr.  16 
a  p.  15. 


<  7  (1.  &  I*.  305,  s.  c.  1  Lewin'it  C.  C. 


64. 


TItlAL   OP   PRKMKXT    INSANITY. 


889 


Test  in  sncli  Ciihos. 


known  to  the  prisoner  the  intUctment  and  charge  against  lier,  and  to 
the  court  her  plea  and  answer  thereto.  The  witness  exphiined  to  her  by 
signs  what  slic  was  cliarged  with,  and  she  made  signs  which  imported  a 
denial  of  the  charge  ;  whereupon  the  judge  directed  a  plea  of  not  guilty 
to  be  recorded.  The  witness  by  direction  of  the  court,  then  stated  to 
her  that  she  was  to  be  tried  by  a  jury,  and  that  she  might  object  to  such 
as  she  pleased  ;  but  he  testified  that  it  was  impossible  to  mjike  her  com- 
prehend a  matter  of  that  nature,  although  slie  might  understand  subjects 
of  daily  occurrence  which  she  had  been  in  the  habit  of  seeing.  A  jury 
was  thereupon  "  impanelled  and  sworn  to  try  whether  she  was  sane  or 
not,"  and  proof  was  given  of  "  her  incapacity  at  that  time  to  under- 
stand the  mode  of  her  trial,  or  to  conduct  her  defence."  The  judgt; 
"told  the  jury,  that  if  they  were  satisfied  that  the  prisoner  had  not  then, 
from  the  defect  of  her  faculties,  intelligence  enough  to  understand  the 
nature  of  the  proceedings  against  her,  they  ought  to  find  her  not  sane." 
The  jury  so  found,  and  the  prisoner  was  detained  in  c'ose  custody  as  the 
statute  directs.  A  similar  case  occurred  in  1836,  wliich  was  disposed  of 
in  the  same  way.  Alueuson,  B.,  said  to  the  jury:  "The  question  is 
whether  the  prisoner  has  sufficient  lyiderstanding  to  comprehend  the 
nature  of  this  trial,  so  as  to  make  a  proper  defence  to  the  charge."  ' 
Both  these  prisoners  had  been  at  all  times  deaf  and  dumb.  In  presump- 
tion of  law,  such  persons  are  always  idiots  or  madmen,  altliough  it  may 
be  shown  that  they  have  the  use  of  understanding  and  arc  cai>able  of 
committing  crimes,  for  which,  in  that  event,  they  should  be  punished.  - 

In  the  case  of  Queen  v.  Goode,'-^  which  occurred  in  1837,  the  pris- 
oner was  brought  into  the  Court  of  Queen's  Bench  and  arraigned  on  an 
indictment  for  a  misdemeanor.  As  he  showed  clear  symptoms  of  insanity 
a  jury  was  immediately  impanelled  to  try  whether  he  was  then  insane  or 
not ;  and  upon  evidence  given,  as  well  as  upon  his  appearance  in  court, 
the  jury  found  that  ho  was  insane.  The  prisoner  was  thereupon  de- 
tained in  custody  under  the  statute. 

In  Lei/s  Case,'*  on  the  trial  of  a  similar  question,  Hullock,  B.,  said 
to  the  jury:  "•  If  there  be  a  doubt  as  to  the  prisoner's  sanity,  and  the 
surgeon  says  that  it  is  doubtful,  you  cannot  say  that  he  is  in  a  fit  state 
to  be  put  upon  his  trial." 

The  course  at  common  law  was  much  the  same.  In  Frith's  Case,^ 
which  preceded  the  act  of  39  and  40  Geo.  III.  to  which  reference  has  been 
made,  the  prisoner  was  arraigned  for  high  treason,  and  a  j        -.worn  to 


[ 


1  Rex  I'.  Pritchard,  7  U.  &  P.  303. 

•I  Russ.  on  Cr.6;  Shelf,  on  Lunacy,  3. 

a  7  A.  A  E.  636. 


■t  1  Lewin  C.  C.  239. 

^'  22  How.  St.  Tr.  307,  318. 


^     ▼   .0.      ^S' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


.^'  ^,V  ^0 


1.0 


I.I 


11.25 


1^  m 

■^    12.2 

-  lis  llilio 


.. .,.  I 


1.4 


1.6 


'^* 


'/ 


Hiotographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  NY.  14580 

(716)  873-4503 


/. 


890 


INSAMTV    AT   TRIAL    OIJ   AFTEK   CONVICTION. 


Krecnmii  v.  People. 


inquire  whether  he  was  of  sound  mind  and  understanding  or  not.    Lord 
Kenton,  Chief  Justice  of  the  Court  of  Kinjjf's  bench,  presided  at  the 
trial,  assisted  by  one  of  the  judges  of  the  Court  of  Cdramon  Pleas  and 
one  of  tlie  barons  of  the  Court  of  Exchequer.     It  was  observed  by  the 
court  to  the  jury  that  the  inquiry  was  not  wliether  the  prisoner  was  in- 
sane wlien  the  alleged  crime  was  committed,  nor  was  it  necessary  to 
inquire  at  all  what  effect  liis  present  state  of  mind  might  have  l)een  when 
that  question  came  to  be  discussed ;  but  the  humanity  of  the  law  of 
England  had  prescribed  that  no  man  should  be  called  ui)ou  to  make  his 
defence  at  a  time  when  his  mind  was  in  such  a  situation  that  he  appeared 
ricapable  of  doing  so ;  that  however  guilty  he  might  be,  the  trial  must 
Vi  oostponed  to  a  time  when  by  collecting  together  his  intellects,  and 
having  them  entire,  he  should  be  able  so  to  model  his  defence,  if  he 
!j?  1  one,  as  to  ward  off  the  punishment  of  the  law  f  and  it  was  for  the 
jt.iy  xo  determine  whether  the  prisoner  was  then  in  that  state  of  mind.' 
With  these  lights  before  us,  the  construction  of  the  statute  which 
forbids  the  trial  of  any  insane  jierson,  cannot  be  attended  with  much 
difficulty.     A  state  of  general  insanity,  the  mental  powers  being  wholly 
perverted  or  obliterated,  would  necessarily  preclude  a  trial ;  for  a  be- 
ing in  that  deplorable  condition  can  make  no  defence  whatever.     Not 
so.  however,  where  the  disease  is  partial,  and  confined  to  some  subject 
other  than  the  imputed  crime,  and  the  contemplated  trial.     A  person  in 
this  condition  may   be  fully  competent  to  understand  his  situation  in 
respect  to  the  alleged  offence,  and  to  conduct  his  defence  with  discre- 
tion and  reason.     Of  this  the  jury  must  judge ;  and  they  should  be  in- 
structed that  if  such  is  found  to  be  his  condition,  it  will  be  their  duty 
to  pronounce  him  sane.     In  the  case  at  bar  the  court  professed  to  fur- 
nish a  single  criterion  of  sanity  ;  that  is,  a  capacity  to  distinguish  be- 
tween right  and  wrong.     This  as  a  test  of  insanity  is  by  no  means 
invariably  correct;  for  while  a  person  has  a  very  just  perception  of  the 
moral  qualities  of  most  actions,  he  ma_y,  at  the  same  time,  as  to  some 
one  in  particular,  be  absolutely  insane,  and  consequently,  as  to  this,  be 
incapable  of  judging  accurately  between  right  and  wrong.     If  the  delu- 
sion extends  to  the  alleged  crime,  or  the  contemplated  trial,  the  party 
manifestly  is  not  in  a  fit  condition  to  make  his  defence,  however  sound 
his  mind  may  in  other  respects  be.     Still  the  insanity  of  such  a  person 
being  only  partial,  not  general,  a  jury,  under  a  charge  like  that  given 
in  this  case,  might  find  the  prisoner  sane  ;  for  in  most  respects  he  would 
be  capable  of  distinguishing  between  right  and   wrong.     Had  the  in- 


1  Shelf.  468. 


TEST    OF    TV     ,NITV 


891 


Knowlet,  e  of  Right  ami  Wrong. 


strnction  been  that  the  prisoner  was  to  bo  deemed  sane  if  he  had  a 
knowledge  of  right  and  wrong  in  respect  to  the  crime  with  which  he 
stood  charged,  there  would  have  been  but  little  fear  that  the  jury  could 
be  misled,  for  a  person,  who  justly  apprehends  the  nature  of  a  charge 
made  against  him,  can  hardly  bo  supposed  incapable  of  defending  him- 
self in  regard  to  it  :n  a  rational  way.  At  the  same  time,  it  would  be 
well  to  impress  distinctly  on  the  minds  of  jurors,  that  they  are  to  gauge 
the  mental  capacity  of  the  prisoner  in  order  to  determine  whether  he  is 
so  far  sane  as  to  be  competent  in  mind  to  make  his  defence  if  he  has 
one,  for  unless  his  faculties  are  equal  to  that  task  he  is  not  in  a  fit  con- 
dition to  be  put  on  his  trial.  For  the  purpose  of  such  a  question  the 
aw  regards  a  person  thus  disabled  by  disease,  as  non  compos  mentis, 
and  he  should  be  pronounced  unhesitatingly  to  be  insane  within  the  true 
intent  and  meaning  of  this  statute. 

Where  insanity  is  interposed  as  a  defence  to  an  indictment  for  an 
alleged  crime,  the  inquiry  is  always  brought  down  to  the  single  question 
of  a  capacity  to  distinguish  between  right  and  wrong  at  the  time  when 
the  act  was  done.  In  such  cases,  the  jury  should  be  instructed  that 
"  it  must  be  clearly  proved  that  at  the  time  of  committing  the  act,  the 
party  accused  was  laboring  under  such  v.  defect  of  reason  from  disease 
of  the  mind  as  not  to  know  the  nature  and  quality  of  the  act  he  was 
doing,  or  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what  was 
wrong.  The  mode, of  putting  the  latter  part  of  the  question  to  the  jury 
on  these  occasions  has  generally  been,  whether  the  accused,  at  the  time 
of  doing  the  act,  knew  the  difference  between  riglit  and  wrong;  which 
mode,  though  rarely,  if  over,  loading  to  aiiy  mistake  with  tlie  jury  is  not 
deemed  so  accurate  when  put  generally  and  in  the  abstract,  as  when 
put  with  reference  to  the  party's  knowledge  of  right  and  wrong  in 
respect  to  the  very  act  with  which  he  is  charged."  '  This  is  the  rule  laid 
down  by  all  the  English  judges  but  one,  in  the  late  case  of  McXaghteri, 
while  pending  in  the  House  of  Lords.  The  case  is  reported  in  10  Clark 
&  Fin.'-^  and  the  opinion  of  the  judges  may  be  found  in  a  note  to 
the  section  of  Greenleaf's  Evidence  referred  to.  In  Beg.  v.  Oxford,'^ 
Lord  Dknman,  C.  J.,  charged  the  jury  in  this  manner:  "  The  question  is 
whether  the  prisoner  was  laboring  under  that  species  of  insanity  which 
satisfies  you  that  he  was  quite  unaware  of  the  nature,  character  and 
consequences  of  the  act  he  was  committing,  or  in  other  words  whether 
he  was  tuider  the  influence  of  a  diseased  mind,  and  was  really  uncon- 
scious, at  the  time  he  was  committing  the  act,  that  it  was  a  crime." 


1  2  (ireenl.  Ev.,  Bcot.  373.       »  9  C.  &  P.  525. 


p.  200. 


892 


INSANITY   AT   TUIAL    Oil    AFTKU    CONN KTIOX 


Freeiiiiin  v.  IVopJc. 


The  insanit)'  must  be  such  as  to  deprive  the  party  charged  with  crime 
of  the  use  of  reason  in  rcfjard  to  the  act  done.  He  may  he  deranged  on 
other  subjects,  but  if  capable  of  distinguishinijc  between  right  and  wrong 
in  the  particular  act  done  by  him,  he  is  justly  liable  to  be  punished  as 
a  criminal. 

Such  is  the  undoubted  rule  of  the  common  law  on  this  subject.  Par- 
tial insanity  is  not,  b}^  that  law,  necessarily  an  excuse  for  crime,  and 
can  only  be  so  wliere  it  deprives  the  party  of  his  reason  in  regard  to  the 
act  charged  to  be  criminal.  Nor  in  my  judgment  was  the  statute  on 
this  subject  intended  to  abrogate  or  qualify  the  common-law  rule.  The 
words  of  the  statute  are,  "■  No  act  done  b}'  a  person  in  a  state  of  insan- 
ity can  be  punished  as  an  offence."  ^ 

The  clause  is  very  comprehensive  in  its  terms,  and  at  first  blush, 
might  seem  to  exempt  from  punishment  every  act  done  by  a  person  who 
is  insane  upon  any  subject  whatever.  This  would,  indeed,  be  a  mighty 
ciiange  in  the  law,  as  it  would  afford  absolute  impunity  to  every  person 
in  an  insane  state,  although  his  disease  migiit  be  contined  to  a  single  and 
isolated  subject.  If  this  is  the  meaning  of  the  statute,  jurors  are  no 
longer  to  inquire  whether  tlie  party  was  insane  *■*  in  respect  to  the  very  act 
with  which  he  is  charged,"  but  whether  he  was  insane  in  regard  to  any 
act  or  subject  whatever;  and  if  they  find  such  to  have  been  his  condi- 
tion, render  a  verdict  of  not  guilty.  But  the  statute  is  not  so  under- 
stood by  me.  I  interpret  it  as  I  should  have  done  if  the  words  had  been 
"  no  act  done  by  a  person  in  a  state  of  insanity,  in  respect  to  such  act, 
can  be  punished  as  an  offence." 

The  act,  in  my  judgment,  must  be  an  insane  act,  and  not  merely  the 
act  of  an  insane  person.  This  was  plainly  the  rule  of  law  before  the 
statute  was  passed,  and  although  that  took  place  more  than  sixteen 
years  since,  I  am  not  aware  that  it  has.  at  any  time,  l)een  lield  or  inti- 
mated by  any  judicial  tribunal,  that  the  statute  had  abrogated  or  in  any 
respect  modified  this  principle  of  the  common  law. 

But  to  return  to  the  trial  of  the  prelimininary  question  in  the  present 
case.  The  jury  found,  not  as  the  issue  retiuired  them  to  do,  that  the 
prisoner  was  or  was  not  insane,  but  that  he  was  "sufficiently  sane  in 
mind  and  memory  to  distinguisli  between  right  and  wrong."  This  ver- 
dict was  defective ;  it  did  not  directly  find  anything,  and  certainly  not 
the  point  in  issue,  Init  evaded  it  by  an  argumentative  finding.  At  the 
utmost  the  jury  only  made  an  approach  towards  the  point  to  be  deciiled 
but  failed  to  reach  it.  Tliey  should  have  been  required  to  pass  directly 
on  the  question  of  insanit}',  and  should  not  have  been  allowed  to  evade 


1  2  R.  S.  697,  sect.  2. 


oriNIOXS    0\    INSANITV. 


893 


liislrictioiis  as  to  Tiiiu', 


it  by  an  f.rgumentativo  verdict  of  any  sf)rt.  Such  a  finding  as  this 
would  bo  objectionable  in  a  civil  proceeding,  and  in  a  criminal  case, 
should  not  be  allowed.' 

The  preliminaiy  trial  being  closed,  a  plea  of  not  guilty  was  entered 
for  the  ])risoner,  and  the  court  proceeded  to  the  trial  of  the  main  issue. 

[Omitting  another  ruling  us  to  <'hallcnge  of  jurors.] 

The  verdict  on  the  preliminary  issue  was  icndered  on  the  Cth  of  July. 
In  the  course  of  the  trial,  and  shortly  after  the  loth  of  that  month,  sev- 
eral medical  witnesses  were  sworn  and  examined  on  the  part  of  the  pris- 
oner, with  a  view  to  estaldish  hia  insanity  the  preceding  ]March,  when 
the  alleged  murder  was  perpetrated.  One  of  these  witnesses,  Dr.  Van 
Epps,  had  known  the  prisoner  from  his  childhood,  and  had  visited  and 
examined  him  with  a  view  to  ascertain  his  mental  condition,  both  before 
and  after  the  Gth  of  July.  The  others  had  never  seen  the  prisoner  until 
the  loth  of  Julj' ;  but  they  also  had  examined  bim  on  and  after  that 
day  in  order  to  be  prepared  to  express  an  opinion  on  the  question  of  his 
sanity  or  insanity. 

That  part  of  the  bill  of  exceptions  which  states  the  questions  made 
and  exceptions  taken,  in  regard  to  these  witnesses,  is  perhaps  liable  to 
some  misapi)rehension,  and  it  nia3'  be  that  I  have  not  rightly  understood 
what  w:  »  intended  to  be  decided  by  the  court.  I  have  read  this  part  of 
the  bill  of  exceptions  repeatedly',  with  an  anxious  desire  to  collect  its 
true  meaning,  and,  although  I  would  not  affirm  positively",  that  its  mean- 
ing may  not  have  been  misapprehended,  I  still  think  no  error  has  been 
fallen  into  in  regard  to  the  views  of  the  court.  As  I  undi-rstood  the 
bill  of  exceptions,  the  cor.it  held  that  it  was  comi)etent  for  these  or 
other  medical  witnesses,  to  express  an  opinion  upon  the  question  of  the 
insanity  of  the  prisoner  at  the  time  of  the  alleged  murder,  but  that  such 
opinion  must  be  formed  upon  facts  and  circumstances  which  occuiTed, 
or  observations  made  before  the  ()th  of  July,  when  the  verdict  on  the 
preliminary  issue  Avas  rendered,  and  could  in  no  degree  rest  upon  any 
thing  observed  in  the  a|)pearanee,  manner,  or  condition  of  the  prisoner 
since  that  time  ;  and  that  the  witnesses  could  not.  with  a  view  to  fortif" 
the  conclusion  of  insanity  at  the  time  of  the  homicide,  be  allowed  to 
express  an  opinion  that  he  was  insane  at  the  trial,  or  had  been  at  any 
time  since  the  (ith  of  July.  >.'or  was  it  even  allowable  to  sa}'  they  had 
examined  the  prisoner,  since  that  time,  with  a  view  to  ascertain  his  men- 
tal condition.  These  restrictions  were  deemed  proper  l»}'  the  court,  as 
I  gather  from  the  bill  of  exceptions,  on  the  ground  that  the  verdict  on 


1  lu  the  matter  of  Morgan,  a  lunatic,  7  I'aifrc,  '23C. 


S94 


INSANITY    AT  TUIAL   OR   AFTER   CONVICTION. 


Fri'L-nian  r.  IVoplc. 


the  preliminary  issue  hart  conclusively  estahlisiied  for  all  purposes  con- 
nected yrith  this  trial,  the  sanity  of  the  prisoner  at  the  time  when  that 
verdict  was  rendered. 

I  cannot  adopt  the  sujrgestion  made  on  tiie  argument  that  the  6th  of 
July  may  have  been  taken  as  a  reasonable  tim'<i  by  whioii  to  bound  the 
inquiries  nuule  of  tliese  witnesses  ;  on  the  contrary,  I  tliink  it  quite  clear 
that  the  court  regarded  the  preliminary  verdict  as  decisive  of  the  ques- 
tion of  present  insanity,  and  therefore  limited  the  witnesses  to  the  time 
when  that  verdict  was  rendered.  In  giving  reasons  for  his  opinio;' 
that  the  prisoner  was  insane,  Dr.  Van  Epps  spoke  of  an  interview  with 
him  since  the  Cth  of  July,  when  he  "  was  stopped  by  the  court,  who 
then  remarked  (an  objection  having  been  made  by  the  counsel  for  the 
People)  that  the  question  of  jjresent  sanity  had  been  tried  and  a  verdict 
rendered  on  the  Gth  of  July  instant,  and  that  the  question  of  the  pres- 
ent sanity  could  not  then  be  again  'tried;"  that  the  question  now 
was  as  to  the  sanity  of  the  prisoner  when  the  deed  was  done  the  pre- 
ceding March,  "  and  that  the  evidence  of  insanity  must  be  confined  to 
facts  before  and  at  the  time  of  committing  the  act,  and  up  to  the  Gth  of 
July  instant,  wl.i'u  the  verdict  of  sanity  was  rendered."  Dr.  Hun, 
another  of  these  witnesses,  had  first  seen  the  prisoner  on  the  15th 
of  July.  The  prisoner's  counsel  "  proposed  to  prove  by  this  witness 
that,  in  iiis  opinion,  the  prisoner  is  and  was  insane  at  the  time  of  the 
commission  of  the  crime.  This  was  objected  to  by  the  counsel  for  the 
People,  on  the  ground  that  the  verdict  on  the  preliminary  issue,  ren- 
dered on  the  sixth  day  of  July  instant  was  and  is  conclusive  that  the 
prisoner  was  sane  on  tliat  duv ;  and  that  the  same  cannot  be  contra- 
dicted by  evidence."  The  court  did  not  pass  directly  upon  this  offer 
and  objection  ;  although  the  ground  stated  by  the  counsel  for  the  People 
is  understood  to  have  been  precisely  that  which  the  court  acted  upon. 
This  witness  was  asked  if  he  had  made  a  personal  examination  of  the 
prisoner  since  his  arrival  at  the  court,  which  was  on  the  ISth  of  July, 
"with  reference  to  the  state  of  his  mind."  To  this  the  counsel  for  the 
People  objected,  and  the  court  refused  to  allow  the  witness  to  give  an 
answer.  He  was  then  asked  if  it  was  his  opinion,  founded  upon  per- 
sonal examination  since  the  Gth  of  July,  that  the  prisoner  was  insane 
on  the  twelfth  of  March  when  the  homicide  was  perpetrated.  This  was 
objected  to  by  the  counsel  for  the  People,  and  the  court  sustained  the 
objection.  The  witness  was  then  asked  his  opinion,  founded  en  such 
examination,  as  to  the  prisoner  being  insane  at  the  time  when  the  (lues- 
tion  was  put.     This  was  also  objected  to  and  excluded  by  the  court. 


I 


OnXIOXS    ox    IXSAXITY. 


895 


opinions  of  MtMJical  Mm. 


Dr.  McNanghton  was  examined  under  like  restrictions.  "The  court 
decided  that  the  witness  should  not  testify  as  to  any  examination  made 
by  liira  of  the  prisoner  since  the  sixtii  day  of  July  instant,"  and  par- 
ticularly "  instructed  the  witness  that  lie  should,  in  any  future  testimony 
to  be  given  by  him  upon  the  trial  of  this  cause,  exclude  all  knoAvledge 
or  information  gained  by  him  of  or  about  the  prisoner  by  or  from  any 
personal  examination  made  by  him  of  said  i)risoner,  since  the  said  sixth 
day  of  July  instant."  These  references  to  points  decided  and  views 
expressed  by  the  court  clearh'  show,  in  my  opinion,  that  the  court  re- 
garded the  preliminary  verdict  as  absolutely  conclusive  for  all  purposes, 
in  this  case,  that  the  prisoner  on  and  after  the  sixth  of  July  was  in  a  saue 
state. 

The  views  of  the  court  upon  this  part  of  the  case  were,  in  my  opin- 
ion clearly  erroneous.  In  strictness  the  verdict  on  the  preliminary  issue 
was  not  before  the  court  and  jiuy  on  the  trial  of  the  issue  of  guilty  or 
not  guilty,  nor  was  it,  in  any  respect,  material  to  such  trial.  But  if  it 
should  be  regarded  as  a  fact  in  the  case,  of  which  the  court  and  jury, 
while  engaged  in  the  trial  of  the  main  issue,  might  take  notice,  no  such 
consequence  as  that  deduced  by  the  court  would  follow  from  it.  The 
only  obje -t  of  the  preliminary  trial  was  to  ascertain  the  mental  condi- 
tion of  the  prisoner,  in  order  to  determine  whether  he  should  then  be 
tried  on  the  indictment.  This,  I  repeat,  was  the  only  object  of  that 
trial,  and  the  result  at  which  the  first  jury  arrived  could  have  no  possi- 
ble bearing  or  just  influence  upon  the  trial  of  the  main  issue.  The 
indictment  was  not  to  be  tried  jMecemeal,  but  at  one  time,  and  by  a  sin- 
gle jury.  If,  therefore,  the  opinion  sought  to  be  obtained  from  those 
medical  witnesses  was  otherwise  competent  and  proper,  and  that  seems 
to  have  been  conceded,  it  is  perfectly  clear  that  the  preliminary  verdict 
constituted  no  obstacle  to  its  reception. 

I  am  not  about  to  inquire  how  far,  or  under  what  circumstances,  the 
opinion  of  medical  witnesses  may  be  admissible  on  the  question  of  insan- 
ity, although  in  general,  nothing  is  better  settled  than  that  such  evidence 
is  competent.'  And  I  entertain  no  doubt  that  such  a  witness  should  be 
allowed  to  express  an  opinion  in  regard  to  the  mental  condition  of  a 
person  alleged  to  be  insane  in  the  month  of  March,  although  the  opinion 
may  have  been  founded  solely  on  an  examination  made  in  the  succeed- 
ing July.  In  most  cases,  undoubtedly  the  opinion  would  be  more  sat- 
isfactory and  convincing,  when  based  on  observations  made  at  or  about 


1  1  Phil.  Ev.  2!iO;  Shelford  on  Lun.  iJ',  07-73;  1  Greenl.  Et.,  •^ect.  44u. 


896 


INSANITY   AT   TRIAL    OK    AFTER    roXVICTION. 


J'roL'iimu  V.  Pt'oplo. 


the  time  to  which  the  inquiry  relates.  But  this  is  not  decisive  against 
the  reception  of  such  evidence,  though  founded  on  examinations  made 
at  a  later  period.  The  competency  of  the  testimony  is  one  question, 
and  its  effect  another.  The  first  is  for  the  court,  and  the  latter  for  the 
jury.  It  will  sometimes,  undoubtedly,  be  found,  and  i)erhap3  not  un- 
frequently,  that  the  mental  malady  is  such  that  an  examination  would 
disclose  beyond  all  peradventure  to  a  sidlful  physician,  what  must  have 
been  the  condition  of  the  patient  for  months  or  years  before.  The  late- 
ness of  the  time  when  the  examination  was  made,  as  well  as  the  char- 
acter of  the  malady,  are  certainly  to  be  considered  in  determining  the 
degree  of  consequence  which  should  be  given  to  the  opinion  of  the  wit- 
ness, but  unless  the  intervening  time  is  much  greater  than  from  March  to 
July,  that  can  furnish  no  solid  objection  to  the  admissibility  of  the  evi- 
dence. If  I  could,  therefore,  adoi)t  the  suggestion  that  the  sixth  of 
July  was  taken  by  the  court  as  a  reasonable  limitation  to  inquiries  of 
this  description.  I  should  still  be  unable  to  agree  that  the  court  had  a 
right  to  impose  any  such  restriction  upon  the  witnesses.  It  was  com- 
petent for  such  witnesses  to  state  what  their  opinions  were,  whether 
founded  on  examinations  before  or  during  the  trial ;  and  these  opinions 
might  not  only  extend  to  the  mental  condition  of  the  prisoner  at  the 
time  when  the  homicide  was  perpetrated,  but  they  might  be  brought 
down  to  the  very  time  when  the  witness  was  speaking.  The  latter 
would  be  admissible,  not  b(!cause  the  present  insanity  of  the  prisoner 
would  necessarily  control  the  verdict,  but  because  it  tended  to  fortify 
the  conclusion  that  insanity  existed  in  the  preceding  March.  But,  al- 
though sucli  are  my  yiews  upon  this  part  of  the  case,  it  is  not  supposed 
that  the  court  excluded  the  evidence  of  the  opinion  of  these  witnesses 
in  consequence  of  the  lateness  of  the  period  when  their  examinations 
had  been  made.  The  evidence  was  shut  out,  as  I  understand  the  case, 
because  the  verdict  on  the  preliminary  issue  was  supposed  to  constitute 
an  insuperable  bar  to  its  reception.  This,  as  before  said,  was,  in  ray 
judgment,  erroneous.  Upon  the  whole  case,  therefore,  I  think  the 
judgment  of  the  court  below  should  be  reversed,  and  a  new  trial  or- 
dered. 

Whether  the  prisoner  was  or  was  not  insane  at  the  time  of  the  homi- 
cide or  the  trial,  is  not  a  question  before  "is  on  this  bill  of  exceptions, 
and  no  opinion  on  that  subject  is  intended  to  be  expressed  or  intimated. 

Judgment  reversed. 


INSANITY    AT   TRIAL. 


807 


Unitc'il  States  v.  Liincastcr. 


insanitt  at  trial— inquiry— blirdkn  of  troof  — right  to 

open  and  cluse. 

United  States  v.  Lancaster. 

[7  Blss.440.] 

In  the  United  States  Circuit  Court  for  the  Northern  District  of  Illinois. 

Bclorc  Hon.  Henry  W.  Hlodgett,  District  Judge . 

1.  Upon  an  Inquisition  of  Insanity  una  indtion  for  a  new  trial  after  verdict  of  guilty 

ol  perjury,  the  ((ueslion  i.s  tlio  .-anii'  as  if  raiscil  when  the  prisoner  was  called  to  ])lcad. 
The  (luestion  to  be  decided  is,  whether  the  defendant  was  incapable  of  comprehending 
the  dftngcrouB  position  ia  wliich  ho  was  placed,  and  of  taking  intelligent  measures  to 
meet  it. 

2.  Burden  of  Proof.  — The  burden  of  proof  of  insanity  is  upon  the  defendant,  yet  he  .s\iouId 

have  the  benetlt  of  any  reasonable  doubt. 

8.  Practice  —  Opening  and  Closinfr.  —  In  an  inquisition  of  insanity  the  counsel  for  the 
prisouer  should  opcu  and  close  the  case  to  the  jury. 

Mark  Bamjs,  United  States  Attorney,  for  the  United  States. 

Leonard  Swett,  for  defendant. 

Blodgett,  J.,  cliarged  the  jury  as  follows:  On  the  fourteenth  of 
February  last,  Alvin  N.  Lancaster  was  put  upon  his  trial  in  this  court, 
on  an  indictment  for  the  crime  of  perjury.  The  trial  resulted  in  a  ver- 
dict of  guilty,  and  a  motion  was  made  for  a  new  trial.  One  of  the 
grounds  for  this  motion  was  based  upon  the  suggestion  that  at  the  time 
of  his  trial  the  defendant  was  of  unsound  mind,  and  therefore  unable  to 
properly  plead  to  the  charge  or  conduct  his  defence.  This  suggestion 
was  sustained  by  such  affidavits  and  other  proofs  as,  in  my  estimation, 
made  it  necessary  to  the  ends  of  justice  that  tlie  facts  should  be  investi- 
gated by  a  jury.  And  you  have  been  impanelled  to  inquire  into  and 
pass  upon  the  question. 

There  is  no  controverted  question  of  law  in  the  case,  and  the  inquiry 
involves  only  a  question  of  fact,  of  which  you  are  the  proper  and  sole 
judges.  The  question  is,  was  the  prisoner,  at  the  time  of  his  trial,  so 
far  of  unsound  mind  as  to  be  incapable  of  comprehending  the  nature  of 
the  charge  against  him,  and  of  properly  presenting  his  defence.  The 
testimony  is  m.iterial  to  be  considered  only  so  far  as  it  tends  to  throw 
light  on  this  question,  and  naturally  divides  itself  into  two  classes:  1. 
The  testimony  of  witnesses  wlio  have  known  the  prisoner  for  a  longer  or 
shorter  time,  and  have  detailed  facts  in  regard  to  his  histor3%  his 
business  enterprises  and  his  domestic  and  financial  troubles.  2.  The 
57 


898 


INSANITY   AT   TKIAL    OK   AFTKK   CONVICTION. 


United  Slali'S  v.  Laiicaslcf, 


testimony  of  professional  men  who  have  given  special  attention  to  the 
invcstigntion  of  mental  and  nervous  iliaeases,  and  who,  by  reason  of 
their  skill  and  attainments,  are  deemed  in  law  qualified  to  jjive  an  opin- 
ion as  experts,  or  persons  of  skill  upon  the  (piestion  before  you. 

You  have  heard  from  the  various  witnesses  who  have  known  the 
defendant,  some  of  them  for  many  years,  many  facts  in  regard  to  his 
previous  life ;  his  business,  his  temperament,  and  various  vicissitudes 
and  incidents  in  his  career  ;  Ir.d  successes  and  failures,  and  the  alleged 
changes  which,  it  is  claimed,  Iwivc  taken  place  in  him,  and  from  which 
you  are  asked  to  infer  that  he  has  become  insane.  There  are  no  special 
contradictions  or  discrepancies  in  this  testimoii)'.  The  witnesses  who 
have  been  called  on  both  sides  agree  in  many  of  the  substantial  matters 
of  fact. 

It  may  be  considered  as  conceded  that  defendant  now  is  about  fifty 
years  of  age;  that  for  many  years  previous  to  1S73  lie  had  been  an 
extensive  and  successful  operator  in  real  estate,  and  had  accumulated  a 
large  amount  of  proj)erty,  his  property  being  estimated  as  worth,  in 
1873,  over  and  above  incumbrances,  from  $150,000  to  $250,000;  that 
he  possessed  unusual  capacity  as  a  l)usiness  man  —  was  promjjt  and  rapid 
in  his  conduct  of  negotiations  and  business  affairs,  and  always  exhibited 
a  'luick  and  irascible  temper  and  a  somewhat  imperious,  jealous  and 
exacting  dispositign ;  that  in  1809  he  lost  his  wife,  and  in  1870  his 
children  died,  and  he  showed  immediately  after  his  bereavment  great 
grief,  and  h  .d  a  very  demonstrative  way  of  displaying  it.  Sometime  in 
the  summer  of  1873,  a  Miss  Warren,  of  New  York  City,  brought  some 
suits  against  him  for  the  collection  of  about  $12,000,  which  she  claimed 
he  owed  her.  He  resisted  this  claim,  and  insisted  that  it  was  prosecuted 
for  purposes  of  blackmail,  and  charged  all  persons  who  took  part  in  its 
prosecution  as  conspiring  against  him.  And  it  seems  to  have  become 
an  almost  fixed  habit  to  indulge  in  violent  denunciations  of,  and  threats 
toward,  all  who  had  any  part  in  the  i)rose(ulion  of  these  suits.  His 
property  has  melted  away,  and  he  is  now  impoverished,  and  instead  of 
being  wealthy,  is  really  a  poor  man.  These  facts  are  admitted,  or  at 
least  not  disputed. 

Other  facts  which  may  be  said  to  be  proved  but  are  not  admitted: 
that  his  mind  is  engrossed  in  trifles ;  he  has  become  indifferent  to  busi- 
ness ;  has  acted  in  a  strange  and  unusual  manner;  become  eccentric 
in  his  conduct;  and,  although  indicted  for  a  grave  crime,  did  not  ap- 
pear to  realize  his  danger,  and  made  no  preparation  for  his  defence,  al- 
though often  urged  to  do  so  by  his  friends.     Eminent  medical  men. 


TKIAL    OK    rUKSKNT    I.NS.WnV 


8l)I» 


Opinions  of   Mnlical  Mm. 


from  cxarainatioiis  and  from  knowledge  of  the  man,  give  an  opinion,  us 
a  mutter  of  skill,  tlial  lie  is  insane. 

From  all  this  group  cf  facts,  you  are  asked  to  deduce  tiie  roncliision 
that  the  priscmer  was,  at  the  time  of  trial,  insane,  the  theory  Iteing  that 
the  proof  shows  that  since  the  deiilh  of  his  children,  his  mind  has  heen 
giving  way,  until  he  is  now  and  was  at  the  time  of  his  trial,  actually  in- 
sane, or  so  far  in  tlie  incipient  stages  of  insanity  as  to  render  him 
incapable  of  properly  appreciating  and  meeting  the  peril  in  which  lie 
was  placed. 

On  the  part  of  the  Government  it  is  contended,  and  supported  by  the 
evidence  of  eminent  medical  men,  that  wiiile  they  do  not  deny  many  of 
the  facts  testilied  to,  they  deny  that  they  necessarily  or  fairly  establish 
the  allegation  of  insanity,  but  insist  that  all  the  incidents  and  facts 
stated  in  the  testimony,  only  show  him  to  be  a  man  of  violent  passions, 
who  has  given  way  in  latter  years  to  a  sort  of  ungovernnble  rage  to- 
ward those  wiio  were  endeavoring  to  enforce  the  collection  of  a  valid 
debt  from  him;  tlw-t  he  was  always  quick  tempered  and  jealous,  and 
has  oiiiy  exhil)ited  to  an  aggravated  degree  his  natural  character  toward 
those  whom  he  disliked,  and  is  simulating  or  putting  on  the  a[)i)carance  of 
insanity  to  avoid  sentence. 

The  real  question,  as  I  have  before  said  is,  whether  the  evidence 
satisfies  you  that  thi^;  man's  mind  had  so  far  broken  down  and  lost  its 
texture  that  he  was  at  the  time  of  his  trial  incapable  of  comprehending 
the  dangerous  predicament  in  which  he  was  placed,  and  taking  intelli- 
gent measures  to  meet  it?  Did  he  realize  tiie  gravity  of  the  offence  with 
which  he  was  charged,  as  he  would  if  in  the  possession  of  his  ordinary 
mental  faculties?  Not  that  he  should  have  been  so  much  affected  by  it 
as  some  other  men  would,  if  he  had  been  in  possession  of  his  ordinary 
mental  vigor  and  coherence  of  ideas. 

All  the  evidence  tends  to  show  that  he  was  at  one  time,  and  not  many 
years  ago,  a  man  of  clear  mental  perceptions,  understood  the  ordinary 
obligations  which  one  man  owes  to  another  and  to  society,  and  while  he 
may  have  been  shrewd  and  sharp  at  a  bargain,  and  perhaps  exac.'ting  in 
enforcing  what  he  deemed  a  le<xal  or  business  advantage  over  those  with 
whom  he  was  dealing,  yet  there  is  no  proof  but  that  he  recognized  the 
ordinary  moral  and  legal  obligations  of  business,  and  was  as  truthful 
and  upright  as  ordinary  men  in  their  dealings.  And  I  think  it  may  be 
considered  as  proven,  that  in  the  last  two  or  three  years,  since  the  loss 
of  his  children,  to  some  extent,  and  since  the  commencement  of  his 
troubles  with  Miss  Warren  in  a  more  palpable  degree,  his  most  intimate 
friends  have  noticed  a  marked  change  in  his  manner,  conduct,  and  habits 
of  thought. 


yuo 


INyAMTY    AT    TlilAL    OK    AI'IKK    CONVICTION. 


Ullllfd  Sliiti>  r.  I.tiiicustur. 


Does  the  proof  satisfy  you  that  the  clinngc  in  the  man  r^hows  that  he 
has  becoino  insane,  or  so  far  insane  as  to  be  incapable  of  properly  caring 
for  himself?  And  a  single  act  of  eccentricity  or  of  irrational  conduct 
is  not  evidence  of  insanity,  but  a  group  or  series  of  unnatural  acts  may 
properly  be  considered  as  tending  to  prove  insanity.  Or  were  these  acts 
the  result  of  his  giving  way  to  a  naturally  violent  temper  and  jealous 
disposition?  Were  these  exhibitions  the  result  of  insanity,  or  mere 
neglect  to  properly  rule  his  own  spirit?  Has  he  simulated  insanity,  or 
was  he  in  fact  insane  at  the  time  of  his  trial? 

The  name  of  the  disease  is  not  important  if  the  man  is  really  crazy. 
It  makes  no  difference  wliether  it  is  called  paralysis  of  the  insane,  or 
paresis  —  or  by  some  other  name  —  if  the  fact  of  insanity  exists.  Doc- 
tors may  disagree  as  to  a  diagnosis  of  disease,  but  we  have  nothing  to 
do  with  mere  names. 

While  the  biuden  of  j)roof  may  be  said  to  be  on  the  defendant,  to 
satisfy  you  that  he  is  in  fact  insane,  yet,  if  the  proof,  when  all  consid- 
ered together,  leaves  a  reasonable  doubt  upon  your  mind  of  this  man's 
sanity,  he  should  have  the  benefit  of  the  doubt.  That  is  to  say,  no  man 
should  be  considered  as  a  proper  subject  for  criminal  prosecution,  of 
wliose  sanity  tliere  is  ground  for  a  reasonable  doubt. 

The  question  is  not  as  stated  by  counsel  for  the  prisoner,  whether  the 
defendant  has  had  a  fair  trial,  but  wliether  he  was  in  such  a  mental  con- 
dition as  to  be  capable  of  appreciating  the  exigency  and  properly  pre- 
paring for  it.  If  he  was  sane  he  ought  to  have  made  proper  preparations 
for  his  trial.  If  he  was  so  insane  as  not  to  comprehend  the  peril  he  was 
in,  or  the  crime  he  was  charged  to  have  committed,  then  he  ought  not 
to  have  been  tried,  and  if  he  is  still  so  insane,  he  ought  not  to  be  sen- 
tenced for  the  crime  of  which  he  has  been  found  guilty  by  the  jury. 

This  case  should  be  considered  in  the  same  light  by  you  as  if  it  had 
not  been  tried. 

Sui)posc  his  trial  was  not  impending,  and  his  counsel  should  come 
into  court  and  suggest  that  his  client  was  so  far  insane  as  that  he  ought 
not  to  be  tried,  and  the  court  as  a  preliminary  step,  had  ordered  a  jury 
to  be  impanelled  to  try  the  question  of  his  sanity  or  insanity,  the  duty 
of  that  jury  would  be  j)recisely  what  yours  is  now  —  that  is,  to  inquire 
into  and  find  whether  the  defendant  was  so  far  insane  as  to  be  incapable 
of  realizing  the  peril  in  which  he  was  placed,  and  taking  such  steps  as  a 
prudent  man,  under  the  circumstances,  would  have  taken  to  prepare 
for  his  trial,  and  whether  that  insane  condition  still  continues. 

If  found  insane  by  your  verdict,  the  verdict  now  standing  against  him 
will  be  set  aside. 


. 


INSAMTV    \T    TIMAI, 


901 


SttltL'    I'.  I'Utti-'ll, 


The  jury  found  the  prisoner  to  have  been  insane  at  the  time  uf  his 
trial  on  the  indictment. 

On  calling  the  matter  for  trial,  the  question  arose  as  to  which  side 
should  open  the  case.  The  court  ruled  that  counsel  for  the  prisoner 
should  open  and  close  the  case  to  the  jury. 


INSANITY  AT  TRIAL  — PUOCEDUKE  —  UIGIIT  OF  PRISONER  TO  WAIVE 

yUESili.'N. 

State  v.  Patten. 
[10  L.*.  Auii.  'jyj.i 
In  the  Supreme  Court  of  Louisiana,  Ajml,  1855. 
Ilea.  Thomas  Smdi'i.i.,  Chief  Justice. 

«•       C.  VoOUIIIKS, 

•'       A.  M.BlCU.VNAN, 

"     A.N.  Or.DKN,  , 

"       II.M.Sl'Ol-FOKD,    j 


)■-  Judges. 


1.  Whenever  a  Prisoner's  Sanity  at  the  time  of    tlio  offence  allcircd  is  in  qucstioa, 

the  rule  Ui.it  lie  umy  control  or  (liscliarj;t!  his  counsel  at  pleasure,  hiiouM  be  so  far  re- 
laxed as  to  permit  them  to  otfer  evidence  on  these  points,  even  against  his  will. 

2.  In  a  Criminal  Case,  when  after  the  close  of  the  tcstimon;^  in  behalf  of  tho  State,  the 

counsel  of  tho  accused  uUcfjed  the  prisoner's  insanity  helore,  at  the  time  of,  and  since 
tho  killing,  and  offer(>(l  to  introduce  testimony  in  jiroof  of  the  f.act,  and  thereupon  the 
prisoner  arose,  and  repudiated  such  defence,  ancl  dischargoil  hi>  counsel,  ami  the  court 
gave  tho  case  to  the  jury  without  further  evidence  or  pleading's  on  behalf  of  the  pris- 
oner: Ileld,  that  the  court  erred  in  allowing  the  prisoner,  under  the'circumetances,  lo 
discharge  his  counsel,  and  erred  in  not  allowing  them  to  offer  proofs  on  the  question  of 
insanity. 

Appeal  from  the  First  District  Court  of  New  Orleans.     Robertson,  J. 

Isaac  E.  Morse,  Attorney-Go uertil  for  the  State. 

Larue  &  Wfiittaker  and  A.  Ilenncn,  for  defendant  ond  appellant. 

Spofford,  J. — I'pon  the  trial  of  James  Patten  for  the  murder  of 
Turnbull,  the  following  bill  of  exceptions  was  taken  by  the  prisoner's 
counsel :  — 

"  Be  it  remembered,  that  on  the  trial  of  this  cause  on  the  20th  day  of 
March,  1854,  after  the  evidence  on  the  part  of  the  State  was  closed,  and 
when  the  counsel  of  the  prisoner  were  proceeding  to  prove,  by  the  evi- 
dence of  the  witnesses,  the  insanity  of  said  prisoner  at  the  time  of  the 


902 


INSANITY   AT   TRIAL   OK    AITKU    CONVICTION. 


Slato  «.  ratten. 


killing,  set  forth  in  the  indictment,  and  a  long  time  before,  and  even 
since  the  said  killing,  the  said  prisoner  arose  and  oljjected  to,  and  re- 
pudiated the  said  defence,  anU  insisted  npon  discharging  his  counsel 
and  submitting  his  case  to  the  jury  without  any  further  evidence  or  ac- 
tion of  his  counsel  in  his  defence  ;  his  counsel  opposed,  and  remonstrated 
against  the  prisoner's  being  permitted  to  do  so,  alleging  that  they  were 
prepared  to  prove  the  defence  by  clear  and  irresistible  testimony  ;  but 
the  court  overruled  the  objection  of  the  said  counsel,  and  permitted  the 
prisoner  to  discharge  Iiis  said  counsel,  and  refused  to  hear  them  further 
in  his  defence,  and  gave  the  cuoe  to  the  jury  without  any  further  evi- 
dence or  pleading  on  his  behalf ;  to  all  which  opinion  and  ruling  of  said 
court,  the  defendant's  said  counsed  excepts,  and  prays  his  exceptions 
may  be  signed,"  etc. 

[Signed]  Jno.  B.  Robertson,  Judge. 

There  was  a  verdict  of  "  guilty,  without  capital  punishment,"  and 
after  his  former  counsel  had,  in  the  quality  of  amicicurke,  attempted  to 
obtain  a  new  trial  and  an  arrest  of  judgment  without  success,  the  pris- 
oner was  sentenced  to  hard  labor  for  life  in  the  penitentiary.  From 
that  judgment  the  present  appeal  has  been  taken. 

The  sanity  or  insanity  of  the  prisoner  is  a  matter  of  fact ;  the  admissi- 
bility of  evidence  to  establish  his  insanity,  under  the  circumstances  de- 
tailed in  the  bill  of  exceptions  is  a  matter  of  law,  and  the  only  matter 
which  the  constitution  authorizes  the  tribunal  to  decide. 

The  case  is  so  extraordinary  in  its  circumstances  that  we  are  left 
without  the  aid  of  precedents. 

In  support  of  the  ruling  of  the  district  judge,  it  has  been  urged  that 
every  man  is  presumed  to  be  sane  until  the  contrary  appears,  and  that  a 
person  on  trial  for  an  alleged  offence  has  a  constitutional  right  to  dis- 
cbarge his  counsel  at  any  moment,  to  repudiate  their  action  on  the  spot, 
and  to  be  heard  by  himself ;  hence  the  inference  is  deduced  that  the 
judge  could  not  have  admitted  the  evidence,  against  the  protest  of  the 
prisoner,  without  reversing  the  ordinary  presumption  and  presuming  in- 
sanity. 

In  criminal  trials  it  is  important  to  keep  ever  in  mind  the  distinction 
between  law  and  fact,  between  the  functions  of  a  judge  and  those  of  a 
jury.  It  was  for  the  jury  and  the  jury  alone  to  determine  whether  there 
was  insanity  or  not,  after  hearing  the  evidence  and  the  instructions  of  the 
court  as  to  the  principles  of  law  applicable  to  the  case.  By  receiving  the 
proffered  evidence  for  what  it  might  be  worth,  the  judge  would  have 
decided  no  question  of  fact ;  he  would  merely  have  told  the  jury :  "  The 
law  permits  you  to  hear  and  weigh   this  evidence ;  whether  it  prove 


, 


PRESENT    INSAMTV    OF    I'KISONEU. 


903 


Kifiht  to  t'onlrol  liis  Couiist?!. 


anything,  it  is  for  you  to  say."  By  rejecting  it,  he  deprived  the  jury  of 
some  of  the  means  of  arrivingat  an  cnUghtoned  conclusion  ui)ou  a  vital 
point  peculiarly  within  their  province,  and  in  effect,  decided  himself, 
and  without  the  aid  of  all  the  evidence  within  his  reach,  that  the  prisoner 
was  sane. 

It  is  idle  to  say  that  the  legal  presumption  and  the  prisoner's  own 
declaratiokis,  appearance,  and  conduct  on  the  trial  established  his  sanity 
to  the  satisfaction  of  both  judge  and  jury;  for  prcsurapti(jns  may  be 
overthrown,  declarations  may  be  unfounded,  and  conduct  and  appear- 
ances may  be  deceitful ;  and  tlie  prisoner's  counsel,  sworn  officers  of 
the  court,  with  their  professional  character  at  stake  upon  tlie  loyalty  of 
their  conduct,  alleged  that  they  stood  there  prepared  to  prove  by  what 
they  deemed  clear  and  irresistible  testimony  that  the  accused  was  in- 
sane at  the  time  of  the  homicide,  long  before,  and  ever  since ;  so  that 
the  sole  inquiry  now  is,  not  whether  they  or  the  court  were  right  as  to  the 
fact  of  sanity,  upon  which  we  can  have  no  opinion,  but  whether  they 
should  have  been  allowed  to  put  the  testimony  they  had  at  hand  before 
the  jury,  to  be  weighed  with  the  counter-evidence. 

If  the  prisoner  was  insane  at  the  time  of  tlie  trial,  as  counsel  offered 
to  prove,  he  was  incompetent  to  conduct  his  own  defence  unaided,  to 
discharge  his  counsel,  or  to  waive  a  riglit. 

Upon  the  supposition  that  the  counsel  were  mistaken  in  regard  to  the 
weight  of  the  evidence  they  wished  to  offer,  as  they  may  have  been, 
still  its  introduction  could  do  the  prisoner  no  harm,  nor  could  it  estop 
him  from  any  other  defence  he  might  choose  to  make  on  his  own  ac- 
count; neither  could  it  prejudice  the  State,  for  it  is  to  be  presumed 
that  the  jury  would  have  given  the  testimony  its  proper  weight ;  if ,  on 
the  other  hand,  the  counsel  were  not  mistaken  as  to  the  legal  effect  of 
this  evidence,  the  consequences  of  its  rejection  would  be  deplorable  in- 
deed. 

The  overruling  necessity  of  the  case  seems  to  demand  that,  whenever 
a  prisoner's  soundness  of  mind  and  consequent  accountability  for  his 
acts  are  in  question,  the  ride  that  he  may  control  or  discharge  his  coun- 
sel at  pleasure  should  be  so  far  relaxed  as  to  permit  them  to  offer  evi- 
dence on  those  points,  even  against  his  will. 

Considering,  therefore,  that  it  would  be  more  in  accordance  with  the 
sound  legal  principles  and  with  the  luimane  spirit  which  pervades  the 
criminal  law,  to  allow  the  rejected  testimony  to  go  before  the  jury, 
the  cause  must  be    3manded  for  that  purpose. 

It  was  said  in  argument,  on  behalf  of  the  State,  that  the  alleged  in- 
sanity was,  at  most,  but  a  monomania  upon  another  topic,  which  could 
not  exempt  the  prisoner  from  responsibility  for  the  homicide. 


904 


INSAXITV   AT   TUIAL    OR  At TKK   CONVICTION. 


Bonds  ?'.  State. 


The  judge  will  instruct  the  jury  in  regard  to  the  principles  of  law 
which  govern  this  subject,  when  all  the  facts  shall  have  been  heard.  At 
present  the  discussion  is  })reniatnre. 

It  is,  therefore,  ordered  that  the  judgment  of  the  District  Court  be 
reversed,  the  verdict  of  the  jury  set  asiile,  and  the  cause  remanded  for 
a  new  trial,  according  to  law. 


INSANITY    AFTER    CONVICTION  — WHERE   JUDGE    IS   SATISFIED    OF 

SANITY  JURY  UNNECESSARY. 

Bonds  v.  State. 

[Mart.  &  Ycrg.  U:'.;  17  Am.  Due.  71)5.] 

In  the  Supreme  Court  of  Tennessee,  1827. 


Hon.  RoBKRT  Whytk, 
"     JoHX  Catiion, 
"    Jacob  Tix  k, 
"     IlEXR-i  Ckabb, 


Judges. 


If  a  Prisoner  after  Conviction  allege  why  sentence  should  not  be  pronounced  that  he  ia 
a  lunatic,  but  the  judge  u|vi)ii  liis  own  insiiectiou  is  .siitisUed  that  the  i)lea  is  false,  lie  may 
pronounce  sentence  without  callin;,'  a  jury  to  try  the  issue.  But  aliter  where  the  judge 
has  a  doubt  or  the  case  is  oue  of  dilViculty. 

White,  J.,  delivered  the  opinion  of  the  court. 

Duncan  Bonds  was  indicted  in  the  Circuit  Court  of  the  County  of 
Lincoln,  at  its  September  term,  in  the  year  1824,  for  the  murder  of  Felix 
Crunk.  To  the  indictment,  upon  his  arraignment,  he  pleaded  not  guilty, 
and  put  himself  upon  the  country,  and  the  attorney-general  did  the  like. 
The  jury  found  the  prisoner  guilt}'  of  the  murder,  wherewith  he  was 
charged  by  the  bill  of  indictment,  and  the  Circuit  Court  passed  sen- 
tence of  death  upon  him.  Whereupon  the  defendant,  by  his  counsel, 
entered  two  bills  of  exceptions ;  which  being  signed  and  sealed  by  the 
court,  and  made  a  part  of  the  record,  a  writ  of  error  was  taken  to  this 
court. 

The  first  bill  of  exceptions  shows  that  when  the  prisoner  was  led  t<> 
the  bar,  anti  was  asked  by  the  coiwt  if  he  had  anything  to  say  why  s^on- 
tence  of  death  should  not  be  pronounced  upon  him,  in  answer  thereto 
by  his  counsel,  he  tdleged  that  he  was  at  that  time  a  lunatic,  and  that 


IXSANITV   AT   TRIAL. 


905 


Miij'bc  Deculoil  l)y  Court  Witliout  Jiirv 


sentence  could  not  be  pronouncccl  upon  him  ;  and  offered  to  plead  his 
lunacy  in  bar  of  the  sentence,  and  also  demanded  of  the  court  that  a 
jury  be  called  to  try  the  issue  of  fact  arising  from  that  plea.  Jiiit  the 
court,  upon  inspection  of  the  prisoner,  and  upon  consideration  of  tlu 
case,  because  nuthiug  was  shown  to  render  it  probable  that  defendant 
was  a  lunatic,  or  to  maiie  that  matter  doubtful,  refused  to  allow  the 
prisoner  his  plea  aforesaid,  and  denied  him  thn  privilege  of  a  jury  at 
this  time,  to  try  the  question  of  his  sanity  or  insanity,  and  proceeded 
to  pronounce  the  sentence  of  death  accordingly,  the  prisoner  having 
nothing  further  to  allege  to  the  contrary. 

Upon  this  bill  of  exceptions  it  is  contended  by  the  defendant's  counsel, 
that  there  is  error  in  this  ;  that  the  Circuit  Court  refused,  upon  the  alle- 
gation by  them  made,  of  the  lunacy  of  the  prisoner,  to  receive  a  plea 
of  lunacy  in  bar  of  deatk  being  pronounced  at  that  time,  and  to  em- 
panel a  jury  to  try  the  truth  of  the  pica;  and  it  was  urged  that  this 
course  of  proceeding,  upon  the  allegation  of  lunacy,  made  by  the 
counsel,  on  behalf  of  the  prisoner,  was  not  a  matter  of  choice  or  dis- 
cretion with  the  court,  but  imperative,  and  that  the  allegation  must  be 
taken  as  true  by  the  court,  unless  the  fact  was  submitted  for  trial  to  a 
jury;  and  1  Chitty  C.  L.,  is  cited  in  support  of  this  position,  where  it 
is  laid  down:  " The  judge  may,  if  he  pleases,  swear  a  jury  to  inquire 
(X  officio,  whether  the  prisoner  is  really  insane,  or  merely  counterfeit  ; 
and,  if  they  find  the  former,  he  is  bound  to  rei)rieve  him  till  ._3  ensuing 
session."  The  meaning  of  this  passage,  giving  it  a  reasonable  con- 
struction,  must  be  that  if  upon  the  question  made,  the  judge  is  not  sat- 
isfied, or  has  doubts,  he  may  call  in  to  his  assistance  the  aid  of  a  jury, 
and  submit  the  matter  to  them.  The  law  on  this  point  is  more  fully 
stated  in  1  Hawk.  P.  C.,i  in  the  notes,  where  it  is  said:  "  Every  per- 
son of  the  age  of  discretion  is  presumed  of  sane  memory,  until  the 
contrary  appears,  which  may  be,  either  by  the  inspection  of  the  court, - 
by  evidence  given  to  the  jury,  who  are  charged  to  try  the  indictment,'' 
or,  by  being  a  collateral  issue,  the  fact  may  be  i^leaded  and  replied  to 
one  term,  and  a  venire  awarded,  returnable  instauter  in  the  nature  of  an 
inquest  of  ofllce  ;-«  and  this  method,  in  cases  of  importance,  doubt,  or 
diflaculty,  the  court  will  in  prudence  and  discretion  adopt. ^  From  this 
it  appears  that  inspection  by  the  court  is  one  of  the  legal  modes  of  try- 
ing the  fact  of  insanity ;  and  nothing  appears  in  the  record  of  this  case 


ip.  s. 

-1  HrIc,  33;  Tr.  per  pais,  14;  O.  M.  ITJI, 
No.  4. 


■'H  Da.  Abr.  21;  1  Hale,  33,  36,  36;  O.  B. 
1124,  No.  222. 

*  Inst.  4(> ;  Koil.  13 ;  1  Tprm,  61. 
6  1  Iliile,  35,  50,  56 ;  1  And.  154. 


906 


INSANITY   AT   TRIAL    OR   AFTER    CONVICTION. 


Si)aiiii  ?'.  Stjitc. 


to  show  that  the  discretion ^  of  the  court,  in  adopting  the  mode  pursued, 
was  erroneously  exercised. 

This  court,  therefore,  is  of  opinion  that  there  is  no  error  in  the  matter 
of  the  first  bill  of  exceptions. 

Judgment  affirmed. 


INSANITY  AFTER  CONVICTION  —  EVIDENCE —CERTIORARI. 

Spann  V.  State. 

[47  Ga.  549.] 

In  the  Supreme  Court  of  Georgia,  January  '"erm,  1873. 

Hon.  Hiram  Warner,  Chief  Justice. 
"     H.  K.  McCay,  ^ 

"     W.  W.  Montgomery,  f^^^ses- 

1.  Insanity  after  Conviction  — Evidence.  —In  .in  inquisition  to  infiuire  into  the  sanity 

of  a  man  convicted  ol  murilcr  and  suulenccd  to  be  liaugcd,  and  whom  it  is  alleged  has, 
after  conviction,  become  insane,  evidence  of  his  insanity  at  times  before  conviction  is 
only  admissible  as  explanatory  of  his  acts  since. 

2.  Whether  Certiorari  will  Lie  to  review  the  proceedings  before  a  jury  called  under  the 

statute  to  in(|uire  into  the  sanity  of  a  prisoner  alleged  to  have  become  insane  since  liis 
conviction,  quare 

Enoch  F.  Spann,  after  his  conviction  of  the  crime  of  murder,  and  af- 
ter he  had  been  sentenced  to  be  hung,  was  alleged  to  have  become  in- 
sane. The  sheriff,  with  the  concurrence  and  assistance  of  George  W. 
Davenport,  Ordinary  of  Webster  County,  under  the  provisions  of  section 
4572  of  the  Revised  Code,  summoned  a  jury  of  twelve  men  to  look  into 
such  insanity.  On  the  IGth  and  17th  days  of  Jidy,  1872,  an  investiga- 
tion of  this  issue  was  had  before  the  said  jury,  the  said  Ordinary' presid- 
ing. Witnesses  were  introduced  to  prove  Spann  insane  at  different 
times  before  his  conviction.  The  Ordinary  excluded  all  such  testimony, 
and  counsel  for  the  prisoner  excepted.  No  evidence  of  insanity  since 
the  conviction  was  introduced. 

The  prisoner,  by  his  next  friend,  W.  F.  Spann,  presented  his  petition 
for  the  writ  of  co/V/ocar^  to  the  Honorable  Jamks  M.  Clark,  "judge  of 
the  Superior  Courts  of  the  Soutliwestern  Circuit,  alleging  the  ruling 
aforesaid  as  error.  The  judge  refused  to  sanction  the  petition  upon 
the  grounds  that  said  ruling  was  right  and  proper,  and  that  the  writ  of 

1  p.  145. 


INSANITY    AFTEK    VKIJDICT 


907 


J'loiuliiig  ami  I'ractico. 


* 


certiorari  does  not-  lie  to  a  proceeding  under  section  4572  of  the  Revised 
Code.  Whereupon  tlie  prisoner,  by  his  next  friend,  excepted  and  now 
assigns  said  ruling  as  error  upon  each  of  the  grounds  aforesaid. 

Hawkins  &  Ouerry,  W.  A.  Hawkins,  and  Phil  Cook,  for  plaintiff  in 
error. 

C.  F.  Crisp,  Solicitor-General,  and  C.  T.  Goode,  for  the  State. 

McCat,  J.  —By  the  laws  of  I^ngland  (and,  so  far  as  they  aro  not 
altered  liy  statute  or  by  the  nature  of  our  government,  those  laws  would 
seem  to  be  of  force  hero),  one  under  sentence  of  death  might  be  re- 
prieved, that  is,  the  execution  of  the  sentence  might,  for  good  reasons, 
be  stayed  for  a  time.  Tliis  is  wholly  distinct  from  the  pardoning  i)ower, 
which  in  England  was  entirely  with  the  crown.'  A  reprieve  is  techni- 
cally with  the  judge.  Even  where  it  comes  from  the  king,  it  cumes  in 
the  shape  of  a  hint  to  the  judge,  who  is  the  actor.^  Ordinarily,  it  is  a 
discretionary  power  with  the  judge,  and  is  exercised  where  he  is  aware 
of  good  reason  why  the  prisoner  should  not  be  executed,  and  this  action 
is  only  to  delay  the  execution  until  the  facts  can  be  looked  into.^  A 
stay  of  execution  is  also  granted  on  satisfying  the  judge  that  the  convict 
has  become  insane,  or  is  quick  with  child.4  In  the  latter  case  the  pris- 
oner might  demand  the  stay  as  a  matter  of  right,  since  as  another  life  is 
in  her  womb,  humanity  to  that  demands  the  reprieve.  But  the  slay  for 
insanity  seems  to  depend  on  the  discretion  of  the  judge  at  common  law.^ 
He  may  call  a  jury  if  he  pleases.  The  whole  proceeding  is  merelv  a 
stay  of  execution,  and  is  based  rather  upon  the  public  will  and  a  sense 
of  propriety,  than  on  any  right  in  the  prisoner. 

By  our  statute,  in  the  case  of  a  convict  becoming  insane,  it  is  the 
duty  of  the  sheriff,  with  the  concurrence  of  the  Superior  Court,  to  sum- 
mon a  jury  of  twelve  men  to  inquire  into  the  insanity.  No  provision  is 
made  for  the  mode  of  trial ;  nothing  is  said  as  to  who  shall  preside. 
The  jury  are  simply  to  make  an  inquisition.  In  the  case  of  a  pregnant 
woman,  the  sheriff,  with  the  concurrence  of  the  Inferior  Coui-t,°shall 
select  one  or  more  physicians,  who  shall  make  inquisition.  In  either 
case,  if  it  appear  that  the  fact  exists  that  the  prisoner  is  insane,  or 
quick  with  cliild,  the  sheriff  shall  suspend  the  execution,  and  report  the 
inquisition  and  suspension  to  the  judge,  who  directs  the  report  to  be  en- 
tered on  the  minutes.  The  execution  is  thus  suspended  until  the  judge 
shall  order  otherwise,  and  this  he  must  do  whenever  he  has  become  satis- 
fied that  the  cause  for  stay  has  ceased.     In  the  case  of  an  insane  person, 


1  4  Bla.  Com.  394. 

s  2  Hale,  412;  1  Chitty,  758. 

»  1  Chitty,  559. 


<  3  Inst 
Com.  395. 
'■  1  Hale,  370, 


Co.  17,  18;  1  Hale,  368;  Bla, 


90« 


INSANITY   AT   TRIAL   Oil    AFTER    rONVKTION, 


Spuiin  V.  Statu . 


he  may  call  an  inquisition  or  not  at  his  pleasure.  In  the  case  of  a  pregnant 
woman  the  statute  simply  says  when  he  is  satisfied,  "  \Yhcn  it  shall  ap- 
pear to  him."  1  It  is  rather  a  perversion  of  terms  to  call  an  inquisition 
of  this  kind  the  act  of  a  court,  and  to  exercise  in  reference  to  it  the  writ 
of  certiorari.  The  whole  proceeding  is  rather  an  inquiry  based  on  pub- 
lic propriety  and  decency,  tlian  a  matter  of  right,  and  whilst  I  do  not 
say  that  a  certiorari  will  not  lie  at  all,  yet,  for  myself  I  greatly  doubt  if 
such  was  the  intent  of  the  law  makers.  But  we  see  no  grounds  for  cer- 
tiorari in  this  case.  It  is  not  pivtended  that  the  verdict  does  not  con- 
clude all  inquiry  as  to  the  insanity  of  the  prisoner  at  the  time  of  the  act 
done  and  at  the  trial.  But  it  is  said  that  anj'  previous  condition  of  in- 
sanity may  be  used  to  illustrate  his  present  condition.  We  agree  to 
this. 

If  there  was  any  evidence  of  present  insanity,  if  it  were  in  proof  that 
since  his  conviction  he  presented  by  his  acts,  words,  looks  and  conduct, 
evidences  of  insanit}',  we  see  no  objection  to  rn  inquiry  into  his  past 
life,  to  see  if  he  had  been  insane  before  ;  such  r  fact  would  tend  to  ex- 
l)lain  his  present  acts.  We  have  looked  carefully  into  the  evidence  for 
some  circumstances  of  present  insanit}'.  We  see  little  or  nothing,  ex- 
cept the  opinions  of  the  phj'sicians,  based  on  the  history  of  his  life  and 
on  certain  notions  they  seem  to  have  of  moral  insanit}'. 

We  are  not  disposed  to  criticise  these  gentlemen's  opinions.  They 
doubtless  know  far  more  of  this  matter,  as  a  medical  question,  than  we 
do,  and  there  is  doubtless  such  a  form  of  insanity  as  moral  insanity. 
But  a  doctor  inquires  into  the  sanity  of  a  man  for  one  reason,  and  the 
public  for  anotlier.  If  he  be  diseased  in  body  or  mind,  he  is  a  subject 
for  medical  treatment,  and  the  inquiry  of  the  physician  is  to  ascertain 
if  the  case  calls  for  treatment.  The  public  wishes  to  know  if  the  man 
be  so  insane,  as  that  society  is  called  upon  to  let  him  go  unpunislied  if 
he  has  committed  a  crime.  Under  our  law,  a  man  v-  r-.  ..ishable  if  he 
knew  riglit  from  wrong,  and  this,  notwithstanding,  •  •.  ,;«  ,  come  within 
some  of  the  classifications  of  the  medical  profeijsi'.n    •;  Iiisane. 

We  see  nothing  in  this  evidence  to  present  a  cast  icre  it  is  a  viola- 
tion of  a  proper  sense  of  propriety  or  a  projjcr  consideration  for  tliose 
on  whom  God  has  laid  his  afflicting  hand,  to  allow  the  sentence  of  the 
law  to  take  its  course. 

Judgment  affirmed. 

1  See  Revised  Code,  sects.  4572  and  4573. 


INSANITY   AT   TllIAL. 


909 


People  V.  Fiirrell. 


INSANITY  AT  TIME   OF  TRIAL  — ISSUE  — EVIDENCE  — PLEA  OF  NOT 

GUILTY. 

People  v.  Farrell. 

[31  Cal.  57(1.] 

In  the  Supreme  Court  of  California,  January,  1867. 

Hon.  John- Ci'RREY,  Chief  Justice. 
"    Lorenzo  Sawyku, 
"     Ar'r.i:sTi;s  L.  Riiodks, 
"     Oscar  L.  Siiaftku, 
"     Silas  W.  Sanderson, 


Associate  Justices 


1.  Insanity  at  Time  of  Trial  — Practice.— Where  it  is  suggested  that  a  prisoner  brought 

up  for  trial  or  judgineiit  is  insane,  llie  tiueistiou  of  his  sanity  must  ho  suhmittcd  lo  a 
jury.  Tlie  rule  is  the  same  where  tlie  prisoner  lias  been  found  to  be  insane,  the  trial 
postponed,  and  calleil  "(gain  at  a  subsequent  term. 

2.  Ona  Second  Trial,  til >     >rnier  verdict  is  admissible  on  the  question  of  present  insanity. 

3.  The  Verdict  of  a  Jury,  called  to  examine  the  sanity  of  a  i)erson  at  the  trial,  that  ho  is 

Insane,  is  conclusive  that  he  was  insane  when  it  was  rendered,  and  is  a<lmi.-4slblo  in 
evidence  on  his  trial  for  the  offence,  as  tending  to  show  that  he  may  have  been  insane 
when  the  offence  was  committed. 

4.  Plea  of  Not  Guilty  — Evidence.— Under  a  plea  of  not  guilty,  evidence  of  the  pris- 

oner's insanity  both  before  and  after  the  commission  of  the  offence  is  admi.ssible. 

Appeal  from  the  Count}-  Court  of  Placer  County. 

The  defendant  was  indicted  for  an  assault  with  intent  to  commit  a 
rape.  The  indictment  was  found  December  6th,  18Go.  When  the  case 
wa3  called,  April  3,  18G6,  ui)on  a  sujigestion  that  the  defendant  was 
then  insane,  a  special  jury  was  emi)anclled  to  try  that  question,  who 
found  the  defendant  was  insane  at  tlie  time.  The  case  was  then 
postponed.  The  defendant  was  afterwards  ariaijined  for  trial  in  Sep- 
tember, 18G6,  and  convicted.     The  defendant  appealed. 

J.  Hamilton,  for  ai)pellant. 

J.  G.  McCulloitgh,  Attorney-General,  for  the  People. 

Sanderson,  J. —  As  to  the  grounds  upon  which  it  is  claimed  that  the 
verdict  of  the  jury,  which  was  called  at  a  previous  term  of  the  court  to 
inquire  into  the  sanity  of  the  prisoner  for  the  purpose  of  determining 
whether  his  trial  upon  the  indictment  ought  to  proceed  at  the  term  or  be 
postponed,  should  have  been  admitted  in  evidence,  the  brief  of  counsel 
does  not  seem  to  be  very  explicit ;  but  as  tlioro  is  some  reason  for  sup- 
posing that  the  verdict  was  offered  for  tlie  purpose  of  showing  that  the 
defendant  was  still  insane  and  therefore  that  his  trial  ought  to  be  fur- 


910 


INSANITY    AT   TltlAL   Olt    AFTEIl   CONVICTION. 


People  V.  Fiirri'll. 


ther  postponed,  and  also  for  the  purpose  of  showing  that  he  was  insane 
at  the  time  the  supp  sed  offence  was  committed,  and  therefore  not  guilty, 
we  shall  so  assume. 

An  act  done  by  a  person  in  a  state  of  insanity  cannot  be  punished  as 
a  public  offence,  nor  can  a  person  be  tried,  adjudged  to  punishment  or 
punislied  for  a  public  offence  wliile  insane.'  Where  a  defendant  is  called 
or  trial,  or  brought  up  for  judgment,  if  there  is  any  reason  to  suppose 
that  he  is  insane,  the  question  must  be  submitted  to  a  jury,  either  of  tlie 
regular  panel  or  of  anotlier  to  l)e  summoned  for  that  purpose.  ^  If 
the  jury  find  the  defendant  insane  the  trial  or  judgment,  as  the  case  may 
be,  must  be  postponed  until  he  becomes  sane.-'  To  authorize  this 
proceeding  there  must  be  some  foundation  for  supposing  that  the  de- 
fendant is  insane.  Such  was  not  the  case  here,  however,  so  far  as 
we  can  learn  from  the  record.  Tlierc  was  no  suggestion  to  that  effect 
before  tlie  trial  was  commenced,  eitlier  by  counsel  for  defendant  or  for 
the  People.  Nor  is  it  suggested  that  anything  occurred  subsequent!}- 
'jalculated  to  inspire  doubts  as  to  the  sanity  of  the  defendant.  On  the 
contrary,  tlie  record  shows  that  wlien  the  case  was  called  at  a  previous 
day  of  the  term  for  the  purpose  of  ascertaining  whether  it  was  ready  for 
trial,  and  for  the  purpose  of  appointing  a  day  for  trial,  the  defendant 
and  lus  counsel  being  in  court,  the  latter  stated  that  the  ph3'sical  and 
mental  cor.^utivin  of  the  defendant  had  so  improved  as  to  justify  him  in 
proceeding  to  trial  at  that  term,  and  that  the  case  was  accordingly  set  for 
trial.  Nothing  further  seems  to  have  been  said  or  done  in  relation  to  the 
matter  until  at  the  \  rial  the  verdict  in  question  was  offered  on  behalf  of  the 
defendant.  As  alrea  ly  intimated,  the  views  of  counsel  in  this  connection 
are  not  very  clearly  stated  in  his  brief,  but  from  what  is  said  we  infer 
that  he  intends  to  claim  that  it  was  error  for  the  court  to  proceed  to  the 
trial  of  the  case  without  having  first  instituted  some  sort  of  judicial  in- 
quiry into  the  present  sanity  of  the  defendant,  which  would  have 
resulted  in  a  formal  reversal  or  vacation  of  the  previous  judgment  of  the 
court  that  he  was  insane  ;  or  in  other  words  that  the  verdict  and  judg- 
ment of  the  previous  term  to  the  effect  that  the  defendant  was  then 
insane  operated  as  a  bar  to  any  further  proceedings  until  formally 
vacated  upon  a  further  proceeding  of  some  sort  confined  to  the  consid- 
eration of  the  same  question.  If  such  was  the  law,  the  projjcr  time  to 
make  the  question  wns  before  the  trial  was  commenced.  But  such  is 
not  the  law.     The  statute  requires  no  such  proceeding. 

1  Sect.  583  of  an  act  concerning  proceed-  *  Sect.  5S4. 

ings  in  urimiual  cases.  ^  Sect.  580. 


INSAMTV    AT   TKIAL 


911 


Ailinis.sitiii  of  Vonlict  on  Second  Trial. 


At  the  previous  term,  upon  the  finding  of  the  jury  tliat  the  defendant 
was  insane,  the  court  made  an  order  committing  liim  to  the  custody  of 
the  officers  of  tlie  insane  asylum,  pursuant  to  the  i)rovisions  of  section 
five  hundred  and  eighty-nine.  It  is  provided  in  the  five  Imndrcd  and 
ninety-first  section  that  when  tlie  defendant  has  I  ecome  sane  tl  e  person 
or  persons  to  -vvliosc  custody  he  may  liave  been  coh^'.iitted  sliall  ^ive  tlie 
sheriff  and  district  attorney  of  tlie  proper  county  notice  of  the  fact,  and 
that  the  sheriff  shall  thereupon  proceed,  Avithout  delay,  to  talvc  him  from 
the  custody  of  such  persons  and  place  him  in  the  proper  custody  until 
lie  be  brouglit  to  trial  or  judgment.  Whether  tliis  course  was  pursued 
in  this  case  the  record  failed  to  show,  but  the  presumption  is  that  it  was. 
But  whether  it  was  or  not  is  of  no  consequence,  for  in  either  event  the 
result  would  be  the  same.  When  a  defendant  once  proved  insane  is 
calleu  for  trial  a  second  time,  if  there  is  any  doubt  as  to  his  sanity,  and 
the  People  demand  a  trial,  the  court  i)roccc'ds  as  at  first,  and  trios  the 
question  of  sanity  anew,  and  so  on  to  the  end,  as  often  as  occasion 
may  require.  Of  course,  at  all  such  trials  the  question  is  as  to  present 
insanity  of  the  defendant,  and  at  all  trials  after  the  firstthe  inquiry  may 
commence  with  the  proposition  that  he  was  insane  at  tlie  time  the 
former  verdict  was  rendered  admitted,  for  of  that  the  verdict  is  conclu- 
sive, or  which  amounts  to  the  same  thing,  the  former  verdict  may  be 
given  in  evidence  as  tending  to  prove  the  present  insanity,  for  havinnf 
been  found  insane  at  the  previous  trial,  the  presumption  is  tlial;  he  is' 
still  insane,  unless  his  insanity  was  accidental  or  temporary  in  its  nature, 
or  occasioned  by  the  violence  of  disease.^ 

But  the  verdict  was  competent  evidence  upon  tlie  question  whether 
the  defendant  was  insane  at  the  time  of  the  comniission  of  the  supposed 
offence,  especially  in  view  of  the  statement  of  counsel,  that  he  proposed 
to  accompany  it  with  other  evidence  upon  tliat  point.  In  the  proof  of  in- 
sanity under  a  plea  of  not  guilty,  though  the  evidence  must  relate  to  the 
time  of  the  act  in  question,  yet  evidence  of  insanity  before  and  after 
that  time  is  admissible.^  The  verdict  was  conclusive  that  the  defendant 
was  insane  at  the  time  it  was  rendei-ed,  and  therefore  admissible  as  tend- 
ing to  prove  that  he  may  have  been  insane  at  the  time  the  offence  was 
committed.  The  verdict  was  rendered  some  time  after  the  act  was 
committed,  it  is  true,  and  may  not  have  been  entitled  to  much  weight  as 
evidence ;  but  that  is  a  different  question,  and  no  rule  can  fix,  with 
precision,  the  limits  of  time  within  which  evidence  of  subsequent  insan- 
ity on  the  score  of  competency  shall  lie  received  and  beyond  which  it 


1  1  Greenl.  on  Ev.,  sect.  42. 


•  2  Greenl.  on  K?.,  sect.  690. 


:a2 


INSAMTY    AT    TUIAL    OK   AITKU   COXVK  TION. 


(iiiiliiT  V.  Slate 


ahall  be  rejected.  It  appears  from  the  testimony  in  the  case  that  the  de- 
fendant is  liable  to  spells  of  insiinity  of  greater  or  loss  duiation  vrhen 
under  the  influence  of  unusual  excitement,  arising  from  injuries  to  his 
head,  sustained  while  serving  in  the  army.  To  prove  this  condition 
was  to  give  evidence  tending  to  prove  insanity  at  the  time  alleged,  or  at 
any  given  time,  and  for  tiie  pur[)ose  of  proving  that  condition  it  was 
competent  to  pi-ove  periods  of  insanity  at  dales  remote  from  each  other 
and  from  the  particular  date  in  (luestion.  Where  the  insanity  sought  to 
be  proven  is  of  a  temporary  character  or  interrupted  l)y  lucid  intervals, 
which  is  apt  to  be  the  case  where  it  results  from  jjcrsonal  injuries  acted 
upon  by  casual  and  exciting  causes,  a  wider  range  on  the  score  of  time 
should  be  allowed  to  the  testimony  than  in  cases  where  the  insanity  is 
of  a  more  contiinious  and  permanent  c"  aracter,  and  therefore  its  pe- 
riods of  commencement  and  termination  more  clearly  dclined  and  readily 
ascertained.  But  from  the  nature  of  the  case  no  fixed  rules  as  to  the 
period  of  time  over  which  an  inciuiry  of  this  character  should  be  ex- 
tended, can  be  established,  and  hence  the  particular  conditions  of  each 
case  must  be  allowed  to  iix  the  limits.  To  allow  a  wide  range  is  cer- 
tainl}'  in  keeping  with  tlie  humanity  of  the  law,  which  always  prefers  the 
escape  of  the  guilty  to  the  i)unishmentof  the  innocent. 
[Omitting  a  ruling  on  another  ciuestion.] 

Judgment  reversed  and  new  tried  ordered. 


INSANITY  AT  TRIAL  —  EFFECT  OF  DISCHARGING  JURY  —  "  ONCE  IN 

JEOPARDY." 

(iRURER  V.  State. 

[;i  W.  Va.  (J'Jti.] 

In  the  Court  of  Appeals  of  West  Virginia,  January  Term,  1869. 

lion.  Jamks  II.  Brown,  President, 
"    Ei>wi\  Maxwkll,         ■» 
"    Rali'ii  L.  Bkkksuikk,  i  •^"^'^^•"'• 

1.  Plea  of  Not  Guilty  —  Evidence  of  Insanity.  — It  is  error  to  exclude  from  the  juiy 

evidence  of  tlio  prisoner's  insanity  at  tlie  time  of  the  commission  of  the  offence,  on  the 
plea  of  not  guilty. 

2.  Insanity  at  Trial.  — If  there  is  reasonable  ground  to  doubt  the  sanity  of  the  accused 

at  the  time  of  the  trial,  and  after  a  jury  is  impanelled,  it  is  the  duty  of  the  court  to  sus- 


ORUJIEH    V.    STATE. 


013 


Syllabus  uml  Facts 


?69. 


the  jury 
^e,  on  the 

I  accused 
Irt  to  sus- 


pend the  trial  and  to  impanel  another  jury  to  imiulro  into  the  (act  ot  hucIi  Muiity.  If 
8uch  jury  Und  tliu  nccuncd  to  he  inHiino  iit  the  tiinu  <>(  tlie  trial,  it  mIihII  thi^n  iiiiiuirc  iih  to 
biH  Miiiiity  at  tlio  liiiiu  u(  (;oiiiiiiitling  tlic  otluncc.  If  hucli  jury  llnd  the  a(',cu>ed  tu  he  in  - 
■auo  at  the  time  tiio  offence  wnH  committed,  that  (act  is  a  good  defence  in  bar  of  furl  tier 
prottecution.  If  hucIi  jury  Had  the  accused  siano  at  the  time  of  tlio  trial,  then  the  trial 
In  chief  shall  proceed. 

3.  DiBcharfre  of  Jury  —  "  Once  in  Jeopardy"—  If  it  is  not  suggested  that  the  accused  is 
in.sano  at  the- time  of  the  trial,  and  the  jury  impanelled  for  tlu;  trial  of  the  cau-e  be  dis- 
charged, the  prisoner  is  theiv'iy  wronged  by  beiiiu  preventetl  frmn  making  his  pmper 
defence  before  the  jury,  and  is  "ntitled  upon  his  motion  to  be  discharged  from  further 
prosecution  of  the  indictment, 

Joseph  Grubei-  was  indicted  in  the  Circuit  Court  of  Ohio  County,  on 
the  6th  day  of  October,  1808,  for  grand  larceny,  and  on  the  8th  day  of 
the  same  month  was  arraigned,  and  pleaded  not  guilty.  A  jury  was 
electeil,  tried  and  sworn  to  well  and  truly  try,  and  true  deliverance  make 
between  the  State  and  the  prisoner. 

After  the  jury  was  sworn,  it  ai)pearing  to  the  court  that  there  was 
question  as  to  the  sanity  of  the  accused  at  the  time  of  the  commission 
of  the  offence,  the  court  ordered  that  one  of  the  jurors  be  withdrawn 
and  the  remainder  from  rendering  a  verdict  be  discharged. 

A  jury  was  thereupon  impanelled  to  intiuire  whether  or  not  the  prisoner 
was,  on  the  17th  of  August,  1868,  the  time  of  the  commission  of  the  al- 
leged offence,  of  sound  mind,  which  jury  found  that  the  prisoner  was,  at 
the  time  aforesaid,  of  sound  mind.  The  cause  was  continued  until  the 
next  term  of  said  court,  when  the  prisoner  by  his  counsel  moved  to  be 
•lischarged  from  further  prosecution  of  the  indictment ;  whicli  motion 
the  court  overruled.  The  accused  then  offered  to  file  a  special  plea  set- 
ting up  the  fact  of  the  discharge  of  the  jury,  under  the  facts  above 
stated,  in  bar  of  further  prosecution  of  the  indictment  against  him. 
This  plea  the  court  refused  to  allow  him  to  file,  and  he  thereupon  ex- 
cepted to  the  opinion  of  the  court.  Another  jury  was  impanelled,  and 
before  it,  and  during  the  trial,  the  accused  offered  a  witness  who  was  a 
physician  in  good  standing,  to  prove  that  the  prisoner,  at  the  time  of  the 
alleged  offence  was  committed,  was  insane.  This  evidence  the  court 
refused  to  allow  to  go  before  the  jury,  and  the  accused  again  excepted. 
The  jury  found  the  prisoner  guilty,  and  fixed  his  term  of  confinement 
in  the  penitentiary  at  four  years,  and  on  this  verdict  the  court  pro- 
nounced sentence. 

The  defendant  obtained  a  writ  of  error  and  supersedeas  to  this  court. 

R.  J.  Russell,  for  tlie  plaintiff  in  error. 

Attorney-General  Melvin,  for  the  State,  who  declined  to  argue  the 
case. 

Maxwell,  J.  — The  petitioner,  Joseph  Gruber,  was  indicted  on  the 
6th  day  of  October,  1868,  for  grand  larceny,  and  on  the  8th  day  of  the 
58 


914 


INSAMTV   AT   TniAI-    0!{   AITi:U   roNVICTION. 


(JriiluT  V.  Sfttt*'. 


same  month  was  arraigned  on  the  said  indictment,  to  whicli  he  pleaded 
not  guilty.  A  jury  was  tlicn  regularly  scli'cti'd,  tried  and  sworn  to  well 
and  truly  try  and  true  deliverance  make  between  the  State  and  the 
prisoner. 

It  appears  from  the  record,  that  after  the  jury  was  sworn,  it  appear- 
ing to  the  court  that  there  was  (luestiou  as  to  the  sanity  of  the  party  at 
the  time  of  the  connnission  of  the  offence  alleged  in  the  indictment,  hy 
order  of  the  court  one  of  the  jurors  was  withdrawn,  and  the  remainder 
of  the  jury  from  rendering  a  verdict  were  discharged.  A  jury  was 
thereupon  immediately  impanelled  to  inquire  whether  the  said  Gruber, 
the  prisoner  at  the  bar,  was  of  sound  mind  or  not  on  the  17th  day  of 
August,  18G8  ;  which  jury  found  that  the  i)risoner  was  sane  on  the  17th 
day  of  August,  18(')8,  the  day  on  which  it  is  alleged  in  the  indictment 
the  larceny  was  committed.  The  cause  was  then  continued  until  the 
next  term  of  said  court,  at  which  term  the  defendant,  Gruber,  by  his 
counsel,  moved  to  be  discharged  from  fui-ther  prosecution  on  the  indict- 
ment aforesaid ;  but  the  court  overruled  the  said  motion,  and  refused  to 
discharge  the  accused.  The  defendant  then  offered  to  file  a  special 
plea,  setting  up  the  fact  of  the  discharge  of  the  jury  under  the  facts 
above  stated,  in  bar  of  the  further  prosecution  of  the  indictment  against 
him ;  but  the  court  refused  to  allow  the  plea  to  be  filed,  and  the  prisoner 
excei)ted.  Another  jury  Avas  then  impanelled,  which  found  the  prisoner 
guilty,  and  ascertained  the  term  of  his  confinement  in  the  penitentiary 
at  four  years,  on  which  verdict  the  court  pronounced  sentence. 

On  the  trial  of  the  case  before  the  last  named  jury,  the  counsel  for 
the  defendant  offered  :i  witness,  who  was  a  jjhysician  in  good  standing, 
to  prove  that  the  prisoner  was  insane  at  the  time  the  offence  charged 
ascainst  him  was  committed ;  but  the  court  refused  to  allow  the  evidence 
to  go  to  the  jury,  and  the  prisoner  again  excepted  to  the  opinion  of  the 
court. 

It  is  claimed  here  that  the  prisoner  was  entitled  to  be  tried  by  the 
first  jury  impanelled  in  the  case,  and  that  the  court  had  no  power  to  dis- 
charge tliat  jury  from  finding  a  verdict. 

It  is  unnecessary  to  examine  the  numerous  and  conflicting  cases  re- 
ported to  ascertain  under  what  circumstances  a  court  may  discharge  a 
jury  in  a  criminal  case.  The  Code  of  Virginia*  jn'ovides,  that  "  if  a 
juror,  after  he  is  sworn,  be  unable  from  any  cause  to  perform  his  duty, 
the  court  may  in  its  discretion,  cause  another  qualified  juror  to  be  sworn 
in  his  place.  And  in  any  criminal  case  the  court  may  discharge  the 
jury  when  it  appears  they  cannot  agree  in  a  verdict,  or  that  there  is 

1  Edition  of  1860,  p.  83U,  lect.  13. 


(leaded 
to  well 
aid  the 

appear- 
iiirty  lit 
lont,  l)v 
uaindor 
wy  was 
Gruber, 
11  day  of 
the  17tli 
lictmcnt 
intil  the 
r,  by  his 
je  indict - 
cf  U3cd  to 
1  special 
tlie  facts 
it  against 
I  prisoner 
prisoner 
itentiary 

unsel  for 

tanding. 

cliarged 

evidence 

on  of  the 

3d  by  the 
er  to  dis- 
eases re- 
charge a 
■lat  "if  a 
his  duty, 
be  sworn 
arge  the 
there  is 


INSAMTV    AT   TKIAL. 


1»15 


Wrongful  l)lsr!;iirtr<'  "f  Jury. 


a  manifest  necessity  for  siicli  u  disciiarge."  This  Rontion  contains  what 
seems  to  have  been  tlie  sum  and  substance  of  the  divisions  of  the  courts 
before  its  enactment. ' 

Tiio  jury  in  the  case  unchM'  consideration  was  not  discharged  bocausr: 
it  could  not  ugrt'O,  but  bci-auso  it  upiJcart'd  tu  tlic  court  that  tlicni  was 
question  as  to  tlic  sanity  of  tlie  piirty  at  the  time  of  the  conimi.ssioii  of 
the  offence  alleg(!d  in  the  indictment.  Tlie  (luestion  then  is,  v.ns  there 
a  manifest  necessity  for  the  discharge  of  the  jury  according  to  the  mean- 
ing of  the  law?  What  is  a  case  of  manifest  necessity  for  the  discharge 
of  a  jury  depends  njton  the  circumsttmces  of  the  case  in  which  the  ques- 
tion is  raised.  If,  for  instanct',  it  had  been  bein  establishe(l  in  the  case 
under  consideration  that  the  accused,  after  the  jury  was  impanelleil,  had 
been  discovered  to  be  insane  at  the  time  of  tlie  trial,  it  would  have  been 
a  case  of  necessity,  and  mercy  to  the  accp.;ied,  to  have  disehaiged  the 
jury.  But  it  wa3  not  even  suggested  that  ho  was  insane  at  the  time  of 
the  trial.  If  there  had  been  reasonable  ground  t(j  doubt  the  sanit}'  of 
the  accused  at  the  time  of  the  trial  after  the  juiy  was  impanelled  to  try 
the  indictment  agiiinst  him,  it  would  have  been  the  duty  of  the  court 
merely  to  have  suspended  the  trial  and  have  impanelled  another  jury  to 
inquire  into  the  fact  as  to  such  sanity.  And  if  it  had  been  found  that 
the  accused  was  insane  at  the  time  of  the  trial,  the  jury  impanelled  on 
the  question  of  the  sanity  of  the  accused  .should  have  incpiiivd  whether 
or  not  he  was  insane  at  the  time  of  the  alleged  offence.  But  if  the  jury 
had  found  the  accused  to  be  sane  at  the  time  of  thi  ir  verdict,  then  they 
could  make  no  further  inquiry,  and  the  trial  in  chief  should  have  pro- 
ceeded. The  jury  in  chief  was  discharged  because  it  appeared  to  the 
court  that  there  was  question  as  to  the  sanity  of  the  party  at  the  time  of 
the  commission  of  the  offence  alleged  in  the  indict. .lent,  and  to  try  this 
question,  the  second  jurj'  was  impanelled.  If  the  accused  was  insane  at 
the  time  the  sup[)osed  offence  was  committed,  the  fact  was  a  good  de- 
fence in  bar  of  the  prosecution  to  excuse  from  liability  to  punishment 
upon  the  plea  of  not  guilty.  It  seems  to  rae,  therefore,  that  there  was 
no  manifest  necessity  foi  the  dischaige  of  tlie  juiy,  but,  on  the  other 
hand,  that  there  was  a  manifest  wrong  to  the  accused  in  discliarging  it, 
because  he  was  thercliy  prevented  from  making  a  defence  before  the 
jury,  wiiicli  he  was  entitled  to  make. 

Because  of  the  discharge  of  the  first  jury,  contrary  to  la'?/,  it  seems 
to  me  the  accused  could  not  be  tried  before  another  jury,  but  was  en- 
titled to  his  discharge. 

1  U.  S.  V.  Perez;  9  Wheat.,  f)?.);  Fell's  Case,  «  Leigh, 613 ;  William.-,'  Case,  2  Gratt.  507. 


916 


INSANITY   AT  TRIAL   OK   AFTEK   CONVICTION. 


Notes. 


The  accused  being  entitled  to  his  discharge,  moved  the  court  to  dis- 
charge him,  and  upon  tlic  motion  being  overruled  by  the  court  offered 
to  file  a  special  plea,  setting  up  the  improper  discharge  of  the  first  jury. 
This  was  a  case  in  which  the  accused  should  have  been  discharged  on 
his  motion,  because  the  recoi'd  shows  a  continuous  proceeding  against 
him  on  but  one  indictment,  and  shows  with  certainty  that  the  Joseph 
Gruber  who  made  the  motion  to  be  discharged,  is  the  same  person  who 
was  indicted,  arraigned,  and  who  pleaded  not  guilty  to  the  indictir.ont, 
and  the  same  person  whom  the  jury  was  impanelled  to  try.  If  these 
things  did  not  all  appear  from  the  record,  it  would  have  been  necessary 
to  have  set  them  up  by  a  special  plea. 

In  this  view  of  the  case  the  question  made  on  the  exclusion  of  the 
evidence  to  prove  insanity,  offered  to  the  jury  which  convicted  the  ac- 
cused, is  in  no  wise  material  to  the  case  ;  but  as  it  is  made  in  the  as- 
signment of  error,  it  is,  perhaps,  necessary  to  decide  it. 

If  the  accused  was  in  fact  insane  at  the  time  the  supposed  ofifence  was 
c  mmitted  by  hitn,  he  is  guilty  of  no  offence,  and  upon  the  fact  appear- 
ing to  the  jury,  it  would  have  been  its  duty  to  i\ave  found  him  not 
guilty.  It  was,  therefore,  error  in  the  court  to  exclude  from  the  jury 
the  evidence  offered  to  prove  the  prisoner's  insanity. 

I  am  of  the  opinion  that  the  judgment  complained  of  will  have  to  be 
reversed  ;  and  the  court  proceeding  to  enter  such  judgment  as  the  court 
below  ought  to  have  entered,  must  discharge  the  accused  upon  his  said 
motion,  from  all  further  proceedings  under  the  indictment. 

Berkshire,  J.,  concurred. 

Judgment  reversed^  and  the  prisoner  discharged. 


NOTES. 

§  101.  Insane  Person  Cannot  Be  Tried. — Insanity  arising  after  tho  ofEcncc  was 
conunittL'd  l)ut  before  trial  is  no  defence  to  the  indictment. '  But  an  insane 
person  cannot  be  tried;  "^  and,  therefore,  if  from  the  appearance  or  conduct  of  a 
prisoner  when  called  on  to  plead,  it  appears  that  he  is  Insane,  the  court 
should  institute  a  i)reliminary  inquu'y  to  ascertain  his  sanity. ' 


1  Jones  v.  State,  13  Ala.  153  (1*18). 
=  Ley's  Case,  1  Lewin,  2;i7  (1828). 
3  Jones  1'.  State,  13  Ala.  153  (1848) ;  People 
D.  ran-ell,  31  Cal.  57G  (1807);  Com.  v.  Bra- 


ley,  1  Mass.  103]  (1804);  Freeman  v.  People, 
4  Uenio,  !t;  People  r.  Kleini,  1  Eilm.Sel.Cas. 
13  (1845). 


INSAXE    PEUSOX    CANXOT    BE   TKIEI). 


917 


Practici'. 


^ 


No  plea  of  present  insanity  is  required.  If  at  any  time  during  the  proceed- 
ings in  a  eriniinal  trial,  a  doubt  arises  as  to  tlio  sanity  of  tliu  prisoner,  it  is  tiie 
duty  of  tiio  court  of  its  own  motion  to  suspend  furtlier  proceedings  in  tne  case 
until  tlie  question  of  sanity  has  been  determined.  Tlie  prisoner's  counsel  can- 
not waive  sucli  an  inquiry,  nor  on  tlie  other  hand  can  he  conii)el  the  court  tu 
enter  upon  it  when  no  ground  for  such  doubt  exists.  ' 

Generally,  liowever,  this  is  left  to  the  discretion  of  the  trial  court,  an<l  if  the 
prisoner  pleads  to  the  indictment,  the  omission  of  tiie  court  to  institute  the 
preliminary  inquiry  cannot  be  assigned  as  error,  though  from  the  facts  as  set 
ouc  in  the  record,  there  may  be  strong  grounds  for  the  belief  that  the  prisoner 
was  insane  at  the  time  of  the  trial.  * 

When  the  judge  is  satisfied  that  the  plea  of  insanity  at  trial  is  false  lie  may 
iironounce  sentence  without  empanelling  a  jury  to  try  the  issue.  ■' 

In  Texas  when  an  affidavit  is  made  by  a  fespectable  person  that  the  prisoner 
has  become  insane,  a  jury  must  l)e  empanelled  to  try  tliis  issue,  and  this,  though 
the  party  making  the  affidavit  is  unknown  to  those  in  court.*  And  it  is  error 
not  to  do  so,  which  is  not  cured  by  trying  the  plea  of  insanity  after  trial  and 
conviction. 

Tli'i  laws  of  Iowa  provide  that  when  a  prisoner  appears  for  arrangement,  trial, 
jadgment,  or  any  other  occasion,  when  required,  if  a  reasoiial>le  doubt  arises  as 
to  his  sanity,  the  court  shall  order  a  jury  to  be  empanelled  to  inquire  thereof. 
The  proceedings  are  suspended  until  this  question  is  determined  and  if  the  verdict 
is  in  favor  of  his  sanity,  the  trial  proceeds;  but  if  otlierwise,  the  proceedings  are 
further  suspended  until  he  becomes  sane.  <' Under  this  statute,"  say  the  Su- 
preme Court,  in  State  v.  Arnold,^  "the  court  is  to  inquire  into  the  i)risoner's  mental 
condition  at  the  time  he  appears  for  arraignment  or  on  any  other  occasion  when 
required,  and  not  at  the  time  of  the  commission  of  tlie  offence.  In  determining 
whether  a  reasonable  doubt  exists  as  to  his  sanity,  before  empanelling  the 
jury,  the  judge  is  not  conllned  alone  to  the  case  made  for  the  prisoner  by  his 
counsel,  nor  '  suggestions  to  that  effect  made  by  his  relations  or  other  persons 
for  him,  but  may  in  his  discretion  investigate  the  whole  matter  thoroughly,  taki' 
into  consideration  all  tlie  circumstances,  obtain  all  the  liglit  reasonably  attaina- 
ble, and  from  all  the  facts  thu  ;  developed,  determine  whether  the  necessity  ex- 
ists for  the  inquiry.  The  statute  was  enacted  out  of  abundant  and  tender 
regard  for  the  rights  of  the  accused,  but  the  inquiry  should  not  be  allowed, 
M  from  all  the  circumstances  there  is  no  reason  to  doubt  his  sanity.  If  such 
doubt  does  arise  the  inquiry  should  be  promptly  and  thoroughly  made.  And 
this  because  it  is  the  dictate  of  humanity  and  the  command  of  the  law. 

"  In  this  case  the  testimony  as  to  the  sanity  of  the  accused  is  all  before  us,  and 
after  examining  it  carefully,  we  are  brought  to  the  conclusion  that  there  was  no 
error  in  refusing  the  proposed  investigation.  There  is  some  testimony  tending 
to  show  that  prior  to  the  alleged  larceny,  he  acted  strangely;  and  that  since,  his 
manner  occasionall}'  indicatetl  mental  imbecility.  There  is  none,  however, 
showing  insanity  at  the  time  he  appeared  for  trial.  This  was  some  five  months 
after  the  commission  of  the  offence.    The  testimony  not  only  did  not  show  in- 


1  People  V.  Ah  Ying,  42  Cal.  18  (1871). 

3  Jones  V.  State  n  Ala.  15:!  (is.»8). 

3  Bonds  V.  State,  Mart.  &  V.  143  (1827). 


<  Guagando  v.  State,  41  Tex.  fi2(!  (1874). 
'  12  Iowa,  479  (1801). 


918 


INSANITY   AT   TUIA..    OU   AFTER   CONVICTION. 


Noti's. 


sanity,  but  we  can  see  nothing  tending  to  show  it  at  that  time.  The  legal  prc- 
numptiou  is  that  ho  was  sane.  Tliis  presumption  slioukl  be  rebutted,  and  tlie 
reasonable  doubt  created  by  tlie  i)risoner,  or  from  a  consideration  of  the  testi- 
mony and  circumstances  presented.  To  do  this,  evidence  of  mere  incapacity  to 
fully  understand  and  comprehend  all  his  legal  rights;  and  to  niaice  known  in 
the  most  succinct  and  intelligent  manner  to  his  counsel  all  the  facts  material  to 
his  defence  is  not  sufhcient.  A  doubt  must  be  raised  whether  at  the  time  there 
is  such  mental  impairment  citlier  under  the  form  of  idiocy,  intellectual  or  moral 
imbecility,  or  the  lilie,  as  to  render  it  prolmble  that  the  prisoner  cannot,  as  far  as 
may  devolve  upon  him,  have  a  full,  fair,  and  impartial  trial.  If  insanity  existed 
at  the  time  of  tlie  commission  of  tlic  offence,  of  course,  it  presents  a  different 
question,  availing  as  it  would  the  prisoner  on  his  linal  trial.  So  if  his  mental 
condition  has  been  such  in  the  interim  as  to  prevent  the  preparation  of  his  de- 
fence, it  might  be  a  good  ground  for  a  continuance.  But  if  there  is  no  room 
for  a  reasonable  doubt  on  the  subject  at  the  time  he  is  arraigned  for  trial,  or  on 
any  other  occasion  when  he  is  recpiired  to  appear,  he  cannot  demand  the  investi- 
gation contemplated  by  the  statute." 

In  People  v.  Hcott,^  the  prisoner  pleaded  guilty  to  an  indictment  for  incest. 
His  present  Insanity  being  alleged,  a  jury  was  impanelled  which  found  him 
insane,  and  he  was  committed  to  an  asylum.  On  his  discharge,  his  reason  being 
restored,  his  case  was  brought  before  the  court  and  he  was  sentenced  to  ten  years' 
imprisonment.  Before  judgment  he  asked  to  withdraw  the  plea  of  "guilty  " 
and  plead  "not  guilty,"  supporting  his  application  with  aiTldavits  that  he  had 
been  insane  for  many  years.  But  this  the  court  refused.  On  appeal  it  was  held 
that  as  the  evidence  raised  a  doubt  of  his  sanity  at  the  time  the  plea  was  inter- 
posed, the  motion  should  have  been  granted. 

Where  tlie  prisoner  at  the  trial  objected  to  be  defended  by  counsel,  but  after- 
wards assented  to  allowing  him,  it  was  held  no  ground  of  error  that  the  judge 
permitted  the  counsel  to  conduct  the  case.* 

On  a  trial  of  present  insanity  the  jury  may  form  tlieir  judgment  that  he  is  in- 
sane, on  his  appearance  before  them,  witliout  calling  witnesses.' 

In  England  a  grand  jury  has  no  right  to  ignore  a  bill  on  the  ground  of  in- 
sanity; for  this  would  result  in  preventing  the  continement  of  the  prisoner  under 
the  statute.* 

So  one  must  not  be  tried  when  he  is  so  intoxicated  as  not  to  appreciate  his 
peril  or  to  act  advisedly  with  his  counsel.^ 

§102.  Deaf  and  Dumb  Person.  —  A  prisoner  though  deaf  and  dumb  may  he 
tried  if  he  can  be  connnunicated  with  by  signs.*  Where  it  is  alleged  tliat  pris- 
oner is  a  deaf  mute  and  cannot  understand  tlie  trial,  the  court  will  empanel  a  jury 
to  try  the  truth  of  this  suggestion,  and  if  found  to  be  true  will  decline  to  try  him.' 
In  Dyson^s  Casc,^  the  prisoner,  a  girl  deaf  and  dumb,  was  indicted  for  the  murder 
of  her  infant  child.    On  being  called  on  to  plead,  an  Interpreter  was  unable  to 


1  59C.ll.  341  (1881). 

s  Ueg.  r.  Southey,  4  F.  &  F.  SW  (1805) . 
3  Queen  v.  CJoode,  7  Ad.  &  El.  53G  (18:i7). 
*  I{.  V.  Hodges,  8  C.  &  P.  105  (18;iS). 
'  Taffe  V.  State,  23  Ark.  34  (1861). 


'  R.  V.  Jones,  1  Leach,  120(1773) ;  R.  v.  Steel, 
I  Leach,  507  (1785) ;  R.  r.  Wliitlleld,  3  C.  &K. 
121  (18i-)0). 

'■  State  r.  Harris,  8  Jones  (L.)  137,  (1860). 

"  7  C.  &  P.  305 


INSANITT   AFTER   VERDICT. 


919 


Coutiiicmuut  of  liisiiiic  rrisouors. 


make  her  uuderstand.  Tarkk,  J.,  ompancUcd  a  jury  to  try  whether  she  was 
insane  or  not,  and  witnesses  testified  tliat  she  liad  not  sutlicient  reason  to  under- 
stand wliat  was  goinf;  on.  Pakkk,  J.,  said  to  the  jury :  "  You  are  cnipanelied  to 
try  whether  tlie  prisoner  is  sane,  not  wliether  slie  is  at  tliis  moment  la))oring 
under  lunaey,  l)at  whetlier  slie  has  at  this  time  sullicicnt  reason  to  understand 
tlie  nature  of  tliis  proceeding,  so  as  to  be  able  to  conduct  her  defence  with  dis- 
cretion."   Tlie  jury  found  tliat  she  was  insane. 

§  103.  Insanity  after  Verdict  or  Judgment. — If  the  prisoner,  after  conviction 
of  a  capital  felony,  suggests  insanity,  tlie  judgnventmust  bo  suspended  until  that 
fact  can  be  tried  by  a  jury;  if  after  judgment,  execution  must  be  likewise 
stayed.!  In  an  inquisition  to  inquire  into  the  sanity  of  a  man  convicted  of 
murder  and  sentenced  to  be  hanged,  Init  avIio  it  is  claimed  has  since  become  insane, 
evidence  of  his  insanity  before  conviction  is  inadmissible,  except  where  such 
insane  acts  are  explanatory  of  insane  acts  since  conviction.'' 

§  104.  Confinement  of  Insane  Criminals.- -In  England,  when  a  prisoner  stands 
mute  or  exhibits  signs  of  insanity  at  the  trial,  a  jury  is  empanelled  to  try  the 
question,  and  if  they  lind  him  insane,  he  is  thereupon  ordered  to  be  de- 
tained in  custody  during  the  Queen's  pleasure.*  In  Minnesota  it  is  required  by 
statute  that  if  a  prisoner  is  acquitted  on  the  ground  of  insanity  the  jury  shall  so 
state  in  their  verdict,  and  the  court  may  then  order  the  prisoner  to  be  com- 
mitted as  a  dangerous  person.* 

In  Commonwealth  v.  Merriam,^  where  one  who  had  been  committed  to  the  house 
of  correction  as  a  person  dangerous  to  go  at  large  was  Ijrought  from  there,  and 
tried  and  acquitted  of  a  charge  of  murder  under  a  plea  of  insanity,  he  was  re- 
manded by  the  court  to  the  place  whence  he  came. 


1  State  V.  Vanii,  84  N.  V.  722  (1881) ;  State 
V.  Brinyea,  5  Ala.  241  (1843). 

2  Spann  v.  State,  47  Ga.  .'549  (1873). 

3  Keg.  V.  Davie8,  6  Cox.  326;  3  C.  &  K.  328 
(1853).  As  to  the  practice  under  the  Eng- 
lish statute  in  this  respect,  see  R.  v. 
Dwerryhouse,  2  Cox,  446  (1847) ;  R.  v.  Israel, 


2  Cox,  263  (1847) ;  R.  v.  Pritchard,  7  C.  &  P. 
303  (1830). 

*  Bonfanti  v.  State,  2  Minn.  123  (1858). 
As  to  the  constitutionality  of  a  statute  pro- 
viding for  the  conflnemeut  of  insane  crim- 
inals. Underwood  v.  People,  32  Mich.  1, 
(1875). 

s  7  Mass.  168  (1810) 


INDEX. 


ACTS  AND  CONDUCT. 

In  considering  tlie  question  of  tlie  sanity  of  a  prisoner,  tlie  jury  may  prop- 
erly be  directed  to  consider  his  appearance,  conduct,  and  language 
prior  to  tlie  time  of  the  commission  of  the  alleged  crime.  State  v. 
Mewherter  (la.),  P-  102. 

G.,  being  indicted  for  murder,  pleads  insanity.  The  opinion  of  one  who 
was  in  the  army  with  G.  as  to  whether  G.  when  in  oattle  was  unduly 
excited,  is  irrelevant.    People  v.  Garbutt  (Mich.),  p.  403. 

In  a  crl  nal  prosecution  for  the  crime  of  murder,  the  witnesses  for  the 
accused  may,  under  the  plea  of  insanity,  be  permitted  to  give  to  the 
jury  the  acts,  declarations,  conversations  and  exclamations  they  saw, 
had  with,  and  heard  the  accused  make  at  any  time,  shortly  before,  at 
the  time  of,  or  after  the  killing.  The  objections  to  such  testimony  go 
to  its  effect.     State  v.  Hays,  (La.),  p.  7'J7. 

Where  insanity  is  relied  on  as  a  defence  to  crime,  evidence  of  acts  and 
conduct  of  the  prisoner  subsequent  to  its  commission  is  not  admissible 
to  prove  his  condition  at  the  time  of  the  offence,  unless  they  arc  so 
connected  with  evidence  of  a  previous  state  of  mental  disorder  as  to 
strengthen  the  presumption  of  its  continuance  at  the  time  of  the  crime, 
or  when  they  indicate  permanent  unsoundness,  which  must  necessarily 
relate  back.     Com.  v.  Fomeroy  (Mass.),  p.  799. 

The  plaintiff  in  error  was  tried  and  convicted  for  falsely  swearing  to  his 
qualiflcation  as  bail  in  a  criminal  case.  Upon  the  trial  tlie  prisoner 
claimed  that  he  was  at  the  time  of  the  commission  of  the  offence,  some 
six  months  previous  to  the  trial,  insane  from  delirium  tremens.  The 
judge  charged  the  jury  that,  in  deciding  upon  his  insanity,  they  might 
take  into  account  his  physique  and  apparent  age,  and  consider  his  con- 
duct upon  the  trial.  There  was  no  evidence  tending  to  show  that  his 
physical  appearance,  six  months  after  xhe  disease,  would  be  affected 
thereby.  Held,  that  the  charge  was  erroneous.  JBowden  v.  People 
(N.  Y.),  p.  807. 

On  an  indictment  for  murder,  evidence  that  the  prisoner  Avas  or  was  not 
generally  drunk  when  out  of  work,  whether  he  did  not  move  more 
quickly  when  drunk  than  sober,  is  not  relevant  where  there  is  no  proof 
of  actual  intoxication,  or  that  he  was  out  of  work  at  the  time.  Warren 
V.  Com.  (Pa.),  p.  809. 

Evidence  of  acts  and  conduct  at  other  times,  pp.  859,  377. 

Specific  acts  of  insanity  need  not  be  shown,  p.  SOo. 

921 


922 


IXDKX. 


ADULTERY. 

On  an  indictment  for  murder,  evidence  tl'at  the  prisoner's  wife  had  been  In 
the  hiibit  of  comniitliuK  adultery  with  the  deceased  is  inadmissible. 
Nothing  but  finding  a  man  in  the  very  act  can  mitigate  the  homicide 
from  murder  to  manslaughter.     State  v.  John  (N.  C),  p.  787. 

S.  was  indicted  for  tlie  murder  of  his  wife.  On  the  trial  he  offered  evi- 
dence that  she  had  for  a  long  time  been  having  an  adulterous  inter- 
course with  one  B.  and  others,  of  which  S.  had  for  a  long  time  been 
cognizant.  Held,  inadmissible,  both  on  the  question  of  heat  of  passion 
and  of  insanity.     Saiojer  v.  State  (Ind.),  p.  790. 

When  evidence  of  wife's  adultery  relevant,  p.  857. 

ALABAMA. 

Test  in,  2.'U. 

Moral  insanity  disapproved,  p.  309 

Burden  on  prisoner,  514. 

ANGER. 

And  wrath  is  not  insanity,  p.  14G. 

Frenzy  arising  solely  from  the  passion  of  anger  and  jealously,  no  matter 
how  furious,  is  not  insanity  which  will  excuse  a  crime.  Quetig  v.  State 
(Ind.),p.  45G 

Where  a  homicide  is  done  with  premeditation  and  deliberation,  evidence 
that  the  prisoner  had  an  irascible  tomper  or  was  subject  to  tits  of  pas- 
sion for  slight  causes  is  incompetent.     Sindram  v.  People  (N.  Y.),  p. 

802, 

ANOTHER  CRIME. 

As  a  general  rule,  on  the  trial  of  one  crime,  proof  that  the  prisoner  had  com- 
mitted another  is  not  permissible.  But  where  the  defence  is  insanity, 
and  the  coolness  and  unconcern  of  the  prisoner  at  the  time  are  relied 
on  as  evidence  of  it,  it  is  competent  to  show  that  the  prisoner  had  in 
former  years  been  a  smuggler,  as  tending  to  rebut  the  impression  that 
his  deportment  was  the  result  of  insanity.  Hopps  \.  People  (Ill.)> 
pp.  444,  8C5. 

APPEAL. 

Trial  on  main  charge  will  not  be  postponed  to  wait  result  of  appeal  on 
question  of  insanity  at  trial,  p.  878. 

APPEARANCE  AT  TRLVL. 

See  Acts  axd  Conduct. 

ARKANSAS. 

Burden  of  proof  on  prisoner,  p.  514. 
AUTREFOIS  ACQUIT. 

See  "Once  in  Jeopardy." 


BAIL. 

Refusal  of,  defence  being  insanity,  p.  8ti. 


INDEX. 


923 


ie  had  been  in 

inadmissible. 

!  the  liomicide 

787. 

le  offered  cvi- 
uiteroiis  inlcr- 
ong  time  been 
Leat  of  passion 


sly,  no  matter 
Guetig  v.  State 

ition,  evidence 
;  to  flts  of  pas- 
ple  CN.  Y.),  p. 


loner  had  corn- 
ice is  insanity, 
time  are  relied 
)risoner  had  in 
npression  that 
.  People  (lU.), 


t  of  appeal  on 


BAEBARITY  OF  ACT. 
See  PuKSUMPTioN. 

BEGIN  AND  RIPPLY,  RIGHT  TO. 

See  Open  and  Close,  Right  to;  Trial,  Insanity  at. 

BOOKS  OF  SCIENCE.      • 
See  Experts. 

BURDEN  OF  PROOF. 

Defence  of  insanity  must  be  proved  to  the  reasonable  satisfaction  of  the 

jury.    State  v.  Erb  (Mo.),  1>-  H- 
Insanity  as  a  defence  to  crime  must  be  proved  to  the  satisfaction  of  the 
jury;  it  is  not  necessary  that  the  jury  .'(hall  be  satisfied  of  tlie  insanity 
of  the  prisoner  beyond  a  reasonable  doubt.    Dejarnette  v.  Com.  (Va.), 
p.  18. 
The  burden  of  proving  sanity  does  not  fall  upon  the  prosecution.    The 
presumption  is  that  every  one  is  sane,  and  the  prisoner  must  overcome 
this  presumption  by  satisfactory  evidence.    If,  however,  there  is  rea- 
sonable doubt  as  to  the  prisoner's  sanity,  arising  upon  the  evidence  in 
the  case,  and  upon  nothing  else,  the  jury  should  give  the  accused  the 
benefit  of  that  doubt  and  acquit  him.     Walker  v.  People  (N.  Y.),  p.  40. 
Where  the  recorder's  charge  accompanied  the  foregoing  propositions  -with 
the  instruction  that  the  insanity  must  be  clearly  proveit;  held,  that  the 
charge  was  correct.     Id.,  p.  40. 
If  no  evidence  is  given  on  the  subject  of  the  mental  condition  of  the  accused, 
the  presumption  is  that  he  is  sane.    Where  evidence  on  the  subject  is 
offered  by  the  defence  the  prosecutor  may  produce  answering  testi- 
mony, but  he  must  satisfy  the  jury  on  tlie  whole  evidence  that  tlie 
prisoner  was  responsible;  for  the  affirmative  of  the  issue  tendered  by 
the  indictment  remains  with  the  prosecution  to  the  end  of  the  trial. 
Id.,  p.  49. 
The  defence  of  insanity  should  not  be  sustained  on  vague  and  shadowy 
testimony,  or  mere  conjecture.    There  should  be  clear  and  substantial 
evidence  of  insanity;  but  if  there  is,  upon  the  whole  evidence  in  the 
case,  any  reasonable  doubt,  the  accused  is  entitled  to  the  benefit  of 
that  doubt,  and  to  an  acquittal.    Id. 
The  law  does  not  presume  insanity  arose  from  any  particular  cause ;  and  if 
the  government  asserts  that  the  prisoner  was  guilty,  though  insane, 
because  his  insanity  was  drunken  madness,  this  allegation  must  be 
proved,     U.  S.  v.  McQlue  (U.  S.),  p.  55. 
Upon  an  indictment  for  murder,  where  the  defence  is  insanity,  the  jury 
should  acquit  if  they  entertain  a  reasonable  doubt  as  to  the  soundness 
of  mind  of  the  prisoner  at  the  time  of  the  homicide,  although  they 
believe  he  had  judgment  and  reason  sufficient  to  discriminate  between 
right  and  wrong  in  the  ordinary  affairs  of  life.     He  is  as  much  entitled 
to"  the  benefit  of  a  doubt  on  that  as  any  other  material  fact  in  the 
case.     Stevens  v.  State  (Ind.),  p.  87. 


924 


INDKX. 


BURDEN  OF  VROOF  — Continued. 

Where  there  is  a  reasonable  doubt  of  the  prisoner's  insanity  adduced  by  liim, 

the  burden  of  proving  his  sanity  falls  on  the  State.     Bradley  v.  State 

(Ind.),  p.  115. 
Evidence  tcndina;  to  show  the  prisoner's  insanity  does  not  throw  upon  the 

prosecution  tlie  burden  of  overbalancing  it,  if  it  does  not  raise  a 

reasonable  doubt.    People  v.  Finley  (Mich."),  p.  140. 
The  burden  of  proving  insanity  to  the  satisfaction  of  tlie  jury  is  ou  the 

prisoner.    Lynch  v.  Cor.i.  (Pa.),  p.  14(1. 

The  jurors  ought  to  be  told  that  every  man  is  presumed  to  be  sane,  and  to 
possess  a  Eufflcient  degree  of  reason  to  be  responsible  for  his  crimes, 
until  the  contrary  be  proved  to  their  satisfaction;  and  that  to  establish 
a  defence  ou  the  ground  of  insanity,  it  must  be  clearly  proved  that  at 
the  time  of  committing  the  act  the  party  accused  was  laboring  under 
such  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the 
nature  and  quality  of  the  act  he  was  doing,  or  as  not  to  know  that 
what  he  was  doing  was  wrong.    McNaghten^s  Case  (Eng.),  p.  150. 

A  jury  may  find  a  person  insane  where  the  preponderance  of  the  evidence 

is  in  favor  of  his  insanity.     Com.  v.  Rogers  (Mass.),  p.  158. 
Where  the  defence  of  insanity  is  set  up  as  an  excuse  for  crime,  the  burden 

of  proving  it  is  on  the  person  alleging  it.    The  presumption  is  that  he 

is  sane.     U.  S.  v.  Guitcau  (U.  S.),  p.  103. 
The  defence  of  insanity  must  be  made  out  to  the  satisfaction  of  the  jury. 

State  V.  Gut  (Minn.),  p.  189. 
The  prisoner  must  prove  the  plea  of  insanity  beyond  a  reasonable  doubt; 

otherwise  the  presumption  of  sanity  will  remain  in  full  force.     State  v. 

Pratt  (Del.),  p.  31' 7. 

The  burden  of  proof  of  insanity  is  on  the  accused.  State  v.  Spencer  (N.  J.), 
p.  335. 

Insanity,  when  set  up  as  a  defence  to  a  crime,  must  be  sho^vn  by  clear  and 
convincing  proof;  but  if  the  jury  entertain  a  reasonable  doubt  of  the 
prisoner's  sanity,  they  should  acquit.    State  v.  Marler  (Ala.),  p.  34G. 

The  defence  of  insanity  must  be  proved  beyond  a  reasonable  doubt.     State 

V.  Brinyea  (Ala.),  p.  340. 
The  burden  of  proof  is  on  the  prisoner  to  show  insanity,  and  a  reasonable 

doubt  of  sanity  will  not  authorize  an  acquittal.    Bosioell  v.  State  (Ala.), 

p-  352. 

The  defence  of  insanity  must  be  established  by  proof  satisfactory  to  the 
jury.     State  v.  Fetter  (la.),  p.  371. 

To  authorize  an  acquittal  ou  the  ground  of  insanity,  the  jury  must  be  sat- 
isfied that  the  accused  was  insane.     Graham  v.  Com.  (Ky.),  p.  373. 

The  legal  presumption  of  sanity  must  be  rebutted  by  satisfactory  evidence. 
A  doubt  of  sanity  is  not  sufficient  to  justify  an  acquittal;  for  the  pre- 
sumption of  sanity  must  be  overcome  by  a  preponderance  of  evidence. 
Kriel  v.  Com.  (Ky.),  p.  373. 

To  establish  the  defence  of  insanity,  the  burden  is  on  the  defendant  to 
prove  by  a  preponderance  of  evidence  that  at  the  time  of  committing 


B 


f 


INDEX. 


925 


BURDEN  OF  PROOF  —  Continued. 

the  act  111!  was  laboring  under  such  a  defect  of  reason,  from  disease 
of  the  mind,  as  not  to  know  the  nature  and  quality  of  the  act  lie  was 
doini;;  or,  if  he  did,  that  he  did  not  know  he  was  doing  what  was 
wrong.    State  v.  Lawrence  (Me.)>  ?•  158(1. 
Partial  insanity,  if  not  to  the  extent  above  indicated,  will  not  excuse  a 

criminal  act.    Id. 
The  prisoner  pleading  insanity  as  a  defence  to  crime  must  establish  it  to 

the  satisfaction  of  the  jury.    Baldwin  v.  State  (Mo.),  P-  31)5. 
The  burden  of  proof  Is  on  the  defendant  to  ^l)0w  that  he  was  insane  at  the 
time  of  the  commission  of  tiie  crime  cliarged.     State  v.  McCoy  fMo.), 
p.  408. 
The  burden  of  establishing  the  insanity  of  the  prisoner  Is  on  the  defence. 
But  it  is  not  necessary  that  it  be  provi'd  beyond  a  reasonable  doubt ;  it 
Is  sufficient  if  the  jury  are  satisfied  by  the  weight  aiid  preponderance 
of  the  evidence  that  the  accused  was  insane  at  the  time  of  the  commis- 
sion of  the  act.    State  v.  Klinger  (Mo.),  p.  410. 
The  burden  of  proof  being  on  the  prisoner  to  prove  his  insanity,  an  instruc- 
tion that  to  overthrow  the  presumption  of  sanity  he  must  satisfy  the 
jury  by  "the  weight  and  preponderance"  of  the  testimony  that  he  was 
insane  at  the  time  he  committed  the  crime,  is  not  error.     State  v.  Smith 
(Mo.),  p.  415. 
If  the  jury  have  a  reasonable  doubt  of  the  commission  of  the  crime,  on  the 

whole  evidence,  they  should  acquit.    Id. 
The  burden  of  proving  insanity  to  the  satisfaction  of  the  jury  rests  upon  the 
defence;  l)ut  it  is  not  necessary  that  insanity  should  be  established 
beyond  a  reasonable  doubt.    An  instruction,  therefore,  whu;h  requires 
a  clear  preponderance  of  the  evidence  to  establish  insanity  is  erroneous. 
State  v.  Hundley  (Mo.),  p.  418. 
The  burden  of  proving  insanity  as  a  defence  to  a  criminal  charge  rests  on 
the  prisoner.    To  establish  such  a  defence,  evidence  is  necessary,  such 
as  will  reasonably  satisfy  the  jury.    State  v.  Bedemeier  (Mo.),  p.  424. 
The  burden  of  proving  tlie  defence  of  insanity  to  the  satisfaction  of  the 

jury  rests  on  the  prisoner.    Loeffner  v.  State  (0.),  p.  432. 
On  the  trial  of  an  indictment  for  murder,  where  the  defence  Is  that  the 
prisoner  was  insane  at  the  time  he  committed  the  act,  it  is  not  sulliclent 
to  raise  a  doubt  in  the  minds  of  the  jury  as  to  Avhether  the  prisoner 
was  sane,  but  the  evidence  must  be  such  as  satisfies  the  minds  of  the 
jury  that  he  was  in  fact  insane.     Ortwein  v.  Com.  (Pa.),  p.  4;i8. 
It  is  error  to  instruct  the  jury  that  insanity  must  be  proved  by  "clearly 
preponderating"  evidence.     It  is  only  necessary  that  the  evidence  sup- 
porting it  sliould  <' fairly  preponderate."     Coyle  v.  Com.  (Pa.),  p.  441. 
A  prisoner  charged  with  crime,  who  sets  up  insanity  as  a  defence,  does  not 
thereby  assume  the  burden  of  proof  of  such  insanity.     Such  a  defence 
is  only  a  denial  of  one  of  the  essential  allegations  to  be  proved  by  the 
State;  and  therefore,  if,  on  the  whole  evidence,  the  jury  entertain  a 
reasonable  doubt  of  his  sanity,  they  must  acquit.    Foster's  Case,  23 
111.  21)3,  overruled.     TInpm  v.  Ppnnio  rill.),  p.  444. 


92(5 


INDEX. 


BURDEN  OF  VROOF  —  Continncd. 

G.  was  indicted  for  murder,  th«  defence  belnj?  insanity.  Tlie  court  in- 
structed tlio  jury  tliiit,  "  tlio  liiw  presumes  tliat  ii  man  Is  of  Bound 
mind  until  there  is  some  ovideuoe  to  tlie  contrary.  *  •  *  An  accused 
Is  entitled  to  an  acquittal  if  tlw!  evidence  engenders  a  reasonablo  doul)1 
as  to  tlio  mental  capacity  at  tlio  time  tlie  alleged  offence  is  charged  to 
have  been  committed.  Evidence  tending  to  reliut  the  presumption  of 
sanity  need  not,  to  entitle  the  defe  dant  to  an  acquittal,  preponderate 
In  favor  of  tlie  accused.  It  will  be  sufficient  If  It  raises  In  your  minds 
a  reasonable  doubt."    Held,  coiTect.     Ouetig  v.  State  (Ind.;,  p.  455. 

The  defendant  under  a  plea  of  insanity  is  not  required  to  establish  its 
truth  by  a  preponderance  of  the  evidence;  but  if,  upon  tho  whole  of 
the  evidence  Introduced  on  the  trial,  together  with  all  the  legal  pre- 
sumptions applicable  to  the  case  under  the  evidence,  there  Is  a  reason- 
able doubt  whether  he  is  sane  or  insaiK;,  he  inilst  be  acquitted.  tStaV' 
V.  Crawford  (Kas.),  p.  451). 

Whenever  evidence  is  given  which  tends  to  overthrow  the  presumption  of 
sanity,  the  burden  of  proof  of  sanity  is  cast  upon  the  prosecution. 
People  V.  Garhutt  (Mich.),  p.  4ija. 

When  any  facts  are  proved  which  raise  a  doubt  of  the  sanity  of  a  person 
accused  of  crime,  it  devolves  on  the  State  to  remove  that  doubt,  and 
establlsli  the  sanity  of  the  prisoner  to  the  satisfaction  of  the  jury 
beyond  all  reasonable  doubt.     Cimningham  v.  State  (Miss.),  p.  470. 

Where,  in  a  criminal  case,  the  accused  relies  npon  insanity  as  a  defence, 
the  burden  of  jiroof  is  on  tlir  prosecution  to  show  sanity.  Wright  v. 
People  (Neb.),  i).  477. 

In  sustaining  such  a  defence,  where  there  is  testimony  to  rebut  the  legal 
presumption  that  the  accused  was  sane,  unless  the  jury  are  satlsUcd 
beyond  a  reasonable  doubt  that  the  act  complained  f)f  was  uot  pro- 
duced by  mental  disease,  they  must  acquit.     Id 

Where  insanity  is  set  up  as  a  defence  to  an  indictment,  the  jury  must  l)e 
satisfied  beyond  reasonable  doubt  of  the  soundness  of  the  prisoner's 
mind  and  his  capacity  to  commit  the  crime,  upon  all  the  evidence 
before  tliem,  regardless  of  the  fact  whether  it  be  adduced  by  the  prose- 
cution or  by  the  defendant.     State  v.  Bartlett  (N.  IL),  p.  480. 

On  a  trial  for  murder,  Avhere  the  defence  was  insanity,  the  judge  charged 
the  jury  that  sanity  being  the  normal  state  of  the  mind,  there  is  no 
presumption  of  insanity;  that  the  burden  of  proving  it  is  upon  the 
prisoner;  that  a  failure  to  prove  it,  like  a  failure  to  prove  any  other 
fact,  is  the  misfortune  of  the  party  attempting  the  proof," and  that  tlicy 
must  be  satisfied  of  his  insanity  beyond  a  reasonable  doubt;  otherwise 
they  must  convict.    Held,  error.    People  v.  McCann  (N.  Y.),  p.  4'JO. 

The  burden  of  proof  is  upon  the  prosecution  to  show  by  the  whole  evidence 
that  a  person  chargeil  with  crime,  alleged  to  have  been  committed  in  a 
state  of  insanity,  is  sane.     O^Connell  v.  People  (N.  Y.),  p.  4!)1). 

A  charge  that  "  the  proof  of  insanity  must  be  as  clear  and  satisfactory,  in 
order  to  acquit,  as  the  proof  of  the  crime  ou^ht  to  be  to  find  a  sane 
man  guilty;  "  or  to  charge  that  if  the  jury  have  a  reasonable  doub-r^ 


: 


INDKX 


927 


BUKDKN  OK  VnOOV  —  Continued. 

to  the  insanity  of  dcfcndunt,  they  uu^ht  to  convict,  id  crntr.     Dove  v. 
Slate  (Ti!un.;.  p.  502. 
The  burden  of  proof  Is  on  the  prisoner  who  pleads  Insanity  iia  a  defence ; 
and  tiic  jury  aro  llio  Jihljies  of  tth;  wcl;;lit  of   the  testimony  adduced 
thereon.     McKemie,  v.  State  (Ark.),  p.  b'.V.\. 

The  defence  of  insanity  tnu.st  be  proved  to  tlic  satisfaction  of  the  jury. 

BosioeWs  Case  (Va.),  p.  S92. 
An  instruction  that  where  tlie  jury,  from  the  evidence,  entertain  a  rational 
doubt  on  the  question  of  insanity,  they  slioiild  always  llud  in  favor  o! 
sanity,  is  erroneous.     Smith  v.  Com.  (Ky.;,  p.  670. 
The  evidence  of  Insanity,  to  warrant  an  acquittal,  .should  be  sufflclently 
clear  to  convince  the  minds  and  consciences  of  the  jury.     Webb  v.  State 
(Tex.),  p.  835,  and  see  King  v.  State  (Tex.),  p.  811. 
The  burden  of  proof  of  Insanity  is  upon  the  defendant,  yet  he  should  have 
the  benefit  of  any  reasonable  douljt.     U.  S.  v.  Lancaster  (U.  S.),  p.  897. 
Three  theories  as  to  the  burden  of  proof,  p.  513. 

First  theory  that  burden  on  prisoner  to  prove  defence  beyond  reason- 
able doubt,  pp.  5i;'>,  514. 
now  almost  obsolete,  p.  511. 
except  perhaps  In  Delaware,  p.  514. 
and  New  Jersey,  p.  614. 
Second  theory,  that  burden  on  prisoner  to  satisfy  jury  of  truth  of  plea, 
p.  614. 

Rule  in  Alabama,  pp.  514,  874. 

Arkan.sas,  p.  514. 
California,  p.  614. 
Connecticut,  p.  516. 
Georgia,  pp.  516,  874. 
Iowa,  pp.  516,  878. 
Kentucky,  p.  517. 
Louisiana,  p.  617. 
Maine,  p.  517. 
Massachusetts,  p.  617. 
Minnesota,  p.  518. 
Missouri,  p.  518. 
North  Carolina,  p.  518. 
Ohio,  p.  518. 
Pennsylvania,  p.  520. 
Texas,  p.  532. 
Virginia,  p.  521. 
West  Virginia,  p.  521. 
England,  p.  522. 
Third  theory,  that  burden  is  on  prosecution,  p.  525. 
Rule  in  Illinois,  p.  526. 

Indiana,  pp.  526,  875. 
Kansas,  p.  527. 


}»28 


INDKX. 


IJURDKN  OK  Vnooi'—Vontinncd. 

Mirhlpan,  p.  5l.'7. 
MLssisslpi)!,  p.  ol.'7. 
N('l)ra8ku,  p.  u'JJ. 
New  Hiimpsblrt',  p.  627. 
New  York,  p.  529. 
Teuuessee   p.  5;!1. 

BURGLARY. 

See  Intknt;  Capacity  to  Commit  Crime. 
CALIFORNIA. 

Test  in,  p.  231. 

Burden  on  prisoner,  p.  514. 

CAPACITY  TO  COMMIT  CRIME. 

It  is  competent  to  show  as  a  defence  to  a  crime  that  the  prisoner  was  in 
such  a  physical  condition  as  to  render  it  improbable  that  he  committed 
It;  as  for  example,  that  he  was  too  drunk  to  have  carried  out  a  cure- 
fully  executed  larceny  or  burglary.    Ingalla  v.  State  (Wis.),  p.  712. 

CERTIORARI. 

See  Vkkdict,  I.vsanity  aktkk. 

CHALLENGE. 

On  a  trial  of  present  insanity  tlie  prisoner  is  not  entitled  to  peremptory 
challenges.  The  right  to  peremiilory  challenges  exists  only  as  to  the 
trial  on  the  indictment  and  not  on  the  trial  of  preliminary  or  collateral 
issues.    Freeman  v.  People  (N.  Y.),  p.  882. 

CHARACTER. 

Evidence  of  the  uniform  good  (Character  of  the  prisoner  is  admissible  where 
the  defence  is  insanity.     Hopps  v.  People  (HI.),  p.  444,  and  see  p.  865. 

CHILD. 

A  temporary  mental  derangement  produced  by  drinking  intoxicating  liquor, 
under  which  a  hoy  oi  thirteen  years  of  age  committed  a  theft,  author- 
izes a  jury  to  acquit  luni.     Com.  v.  French  (Mass.),  p.  681. 

The  child  test,  p.  20n. 

CHILDREN. 

See  Dementia. 

CONFESSION. 

When  insane  no  evidence  of  guilt,    p.  8G1. 

CONFIDENTIAL  COMMUNICATIONS. 

See  IlfsUAXi}  and  AVife. 

CONFINEMENT. 

Of  insane  criminals,  p.  1)19. 

CONNECTICUT. 

Moral  insanity  recognized,  p.  270. 
Burden  on  prisoner,  p.  61G. 


iM)i:\, 


1>2!» 


<:()NSTITI  TION.M,    LAW, 

See  "  ((N»  !•;  i\  .Ikoi-auh^  ." 

('<»NTINII.\N(;|.;. 

Ui'fiiHiil  of  appliciitioii  for,  held  <Tror:  .•vhl.'ii(;c  not  ciimiilalivr.     p.  ,s(;;i. 
AtllUavit  of  (IcfciKliinl   for  coiiIIiiiiiukc  not  iiiliiiis^il)|r  on  trial,     j).  s7i, 

(.'UNTINrANCK  ri|"  SAMTV  nl{   INSAMIV 

.S>«'  I'UKSI   MITIIIN, 

CONVICTION. 

.SW;  Nkukict,  I.NM.wirv  .Vi  ri;n. 
<'(»rNSKI,,  IlKJIITSnl'. 

.SV'«  TiMAi,,  I.N.sANirv  ^r'l'lMl:  n\. 
DK.VK  .MKTi:. 

Practice  on  trial  of.     p.  itjM. 
DKChAlJATInNS. 

(S'fif,  also,  .Vi'T.S  AND  ('o.Miicr. 

Tlic  prisoner's  nn.sworndcrlaralioiis  arc  not  ailniisNihlc  in  iiis  favor,  Hk.iii;!, 
adnilssibic  asaiiainsi  liim.     ('.  ,v.  v.  GuUpuh  (U.  S.),  p.  l(i4. 

Dfclaralion.sof  llic  licccasi'd  arc  ii..  ••vidi'iicc  of  ilir  insaniivof  ilir  prisoner 
States-    .S>e«rec  (N.  ,1.),  |).  ;i;!.-). 

Whero  ttic  defence  to  an  indictment  for  murder  i.s   insiirdt.v,  evidence  of  ;i 
.sul)S.'(piciit    conversation  witli   the  i)rison<'r,  and  of  liie  tests  made  at 
tliat  fiine  are  not  adniis.-dMe  to  sliow  Ids  in.sanitv.     Choice  v.  Stotf  tr.n  ' > 
p.  oM.  ■  '  ■^' 

Of  prisoner  wlien  U(iniissil)ie.     s/afe  v.  John  (S.  ('.;,  \>.  7x7. 

Tlie  |)ri,sonor  Ixdnjj;  indicted  for  tlie  ninrd.'r  -f  his  wife,  ••videne,.  ,,f  i,,.,.  a.-ts 

and  declarations  (jn  tlie  same  ilay  are  ii'relevant.      n'on-fntw  Com   d'a  ) 
p.  .so'.i.  .  ■      '  -J^ 

Dcclaration.s  not  ms  i/e.ttir  inadniis.sihie,  p.  s.v.i. 

1)K(;kkks  of  cim.mi:. 

Tlionfrl,  a  total  want  of  responsiliility  on  account  (.f  imsanit.v  he  not  sliown, 
yet  if  the  prisoner's  mind  was  so  fur  impaired  as  to  render  ii:-!  incap^ 
able  of  a  de]il)erate,  premeditated  murder,  lie  shoidd  be  convicted  only 
of  murder  in  tlie  sec^oiid  degree.     Andpison  v.  Stale  (Conn.),  p.  i:.':i. 

Where  tliere  are  degrees  of  murder,  tlie  fact  of  druul^enness  is  relevant  on 
tlie  question  wlietlier  the  liiliing  sprang  from  a  premeditated  piirpo.se, 
or  from  passion  e.xcited  by  inadefiuate  |)rovocation.  Haile  v.  Sfa/'>- 
(Tenii.),  p.  57;!. 

Intoxication  is  relevant  on  the  (juestion  of  deliberation  and  premeditation. 
BoHV-e.lVs  ('due  (\'a.),  j).  o'.*2. 

On  an  indictment  niidcr  a  statute  |)rovidiiig  that  ail  murder  "perpetrated 
by  any  kind  of  wilful,  deliberate,  and  iiremeditated  killing"  is  murder 
in  the  first  degree,  a  state  of  intoxication  or  any  otiicr  fact  tendiii"  to 


iiao 


INDEX. 


DIOGKKKS  OF  CmMK  —  Contimied. 

prove  that  the  prisoner  was  incapable  of  delil)eration  may  be  shown. 
Statev.  Johnson  (Covu.),  p.  GOH. 

Tile  intoxication  of  the  prisoner  is  relevant  in  ileterniininjuj  the  prisoner's 
state  of  mind  at  the  time  of  the  act;  and  in  connection  with  proof  of 
provocation  may  tend  to  show  that  the  act  was  one  of  suilden  passion 
and  not  of  premeditation,  and  that  therefore  the  homicide  is  man- 
slaugliter  and  not  murder.     Id.,  p.  (109. 

Where  the  crime  was  conunitted  after  provocation,  evidence  of  intoxica- 
tion is  admissible  on  the  question  whether  it  was  done  in  tlie  heat  of 
passion,  :',nd  wliether  tln-eatening  words  were  uttered  by  tlie  prisoner 
with  deliberate  purpose  or  otherwise.    People  v.  Rogers  (N.  Y.),  p.  i!24. 

Intoxication  is  no  excuse  for  crime;  but  if  it  deprives  the  reason  of  power 
to  thinlc  anil  weigli  the  nature  of  the  act  committed,  it  may  prevent  a 
conviction  for  murder  in  tlie  first  degree.    Jones  v.  Com.  (I'a.),  p.  088. 

On  the  question  of  the  degree  of  a  murder,  evidence  of  the  drunkenness  of 
the  prisoner  is  relevant.     Swan  v.  State  (Tenn.),  p.  G48. 

Drunkenness  works.no  mitigation  of  the  grade  of  tlie  guilt  of  any  one  who 
lias  committed  a  criminal  offence;  yet  in  a  case  where,  under  the  act  of 
182St,  cli.  53,  sec.  ii,  there  must  be  a  deliberate  and  premeditated  killing 
to  constitute  murder  in  the  first  degree,  proof  of  drunkenness  is  admis- 
sible, because  it  may  show  that  the  party  accused  was  incapable,  l)y 
reason  of  the  state  of  liis  mind,  of  forming  a  deliberate  and  premedi- 
tated design  to  take  life.  As  between  the  offence  of  murder  in  the 
second  degree  and  manslaughter,  the  drunkenness  of  the  offender  can 
form  no  legitimate  inquiry;  the  killing  voluntary,  the  offence  is  neces- 
sarily murder  in  tlie  second  degree,  unless  the  provocation  were  such 
as  to  reduce  the  offence  to  manslaughter.  Pirtle  v.  State  (Tenn.),  p. 
645. 

If  :i  person  is  so  drunk  as  to  be  incapable  of  forming  a  premeditated  aii<l 
deliberate  intent  to  kill,  he  cannot  be  guilty  of  murder  in  the  first  di- 
gree.  But  where  drunkenness  does  not  exist  to  this  extent,  the  jury 
may  consider  it  with  all  the  other  facts  to  see  (1)  whether  the  purpose 
to  kill  was  formed  in  passion  produced  by  a  cause  operating  upon  a 
mind  excited  by  liquor  —  not  such  adequate  provocation  as  to  reduce 
the  crime  to  manslaughter,  —  but  it  may  reduce  it  to  murder  in  the 
second  degree;  (2)  whether  the  purpose  was  formed  with  deliberation 
and  premeditation,  for  a  drunken  man  may  be  guilty  of  mui'der  in  tlie 
first  degree.     Gartioriyht  v.  State  (Tonn.),  p.  (i52. 

Upon  a  trial  for  murder  in  the  first  degree  or  an  assault  with  intent  to 
commit  murder  in  the  first  degree,  drunkenness  to  any  extent  is  rele- 
vant. Though  it  may  not  i)e  so  excessive  as  to  render  the  prisoner 
incapable  of  deliberating,  yet  it  may  have  excited  him  and  produced  a 
state  of  mind  unfavorable  to  premeditation  and  deliberation.  Lancat^ter 
V.  State  (Tenn.),  p.  (J58. 

Where  a  murder  is  done  by  some  kind  of  wilful,  deliberate  and  premedi- 
tated killing  other  than  by  means  of  poison  or  lying  in  wait,  the  degree 
of  the   offence   is   not   lessened  by  proof  that  at  the  time  it  was  com- 


INDEX. 


931 


)(i  sliowu. 

prisoiur's 
I  proof  of 
m  passion 
8   is  niaii- 

t  iutoxicii- 
he  heat  of 
e  prisoner 
:'.),p.  (;24. 

1  of  power 
prevent  ti 

l),  p.  (]S«. 
kenness  of 

y  cue  ^\^]u> 
the  act  of 
ted  killinii 
8  is  admis- 
;apable,  l)y 
rl  preniedi- 
rder  in  the 
Sender  csin 
;e  is  neees- 
were  such 
;^Tenn.),  1). 

litated  and 
he  first  de- 
t,  th'!  jury 
he  purpose 
ing  upon  a 
i  to  reduee 
rder  in  the 
eliberation 
rder  in  the 

h  intent  to 
ent  is  rele- 
he  prisoner 
produced  a 
Lancaster 

d  preniedi- 
,  tlie  degree 
t  was  com- 


I)I:(;HEES  of  ClU'^iV.—  Continued. 

nutted  the  prisoner  was  intoxicated,  any  more  tlian  it  would  l)e  if  it 
had  been  perpetrated  by  means  of  poison  or  by  lying  in  wait.  State  v. 
Tatro  (Vt.),  i>.  <i<!0. 

Under  a  statute  establishing  degrees  of  the  crime  of  murder,  and  providing 
that  wilful,  deliberate,  malicious  and  premeditated  killing  shall  be 
murder  in  the  first  degree,  evidence  that  the  accused  was  intoxicated 
at  the  time  of  the  killing  is  competent  for  the  consideration  of  tlie  jury 
upon  the  question  whether  he  was  in  such  a  condition  of  uund  as  to  i)e 
capable  of  premeditation.     Hoyt  v.  People  (U.  S.),  p.  Cdl. 

A  person  who  designing  a  honucide  drinks  to  excess,  and  'then  eonnnits  it, 
is  guilty  of  murder.  But  drunkenness  brought  on  by  sensual  or  social 
gratification  with  no  criminal  intent  may  reduce  an  unprovoked  homi- 
cide from  murder  to  manslaughter.     Smith  v.  Com.  (Ky.),  p.  Od!). 

Drunkenness  may,  under  peculiar  circumstances  repelling  malice,  reduce 
the  grade  of  the  crime  from  murder  to  manslaughter.  Blimm  v.  Com. 
(Ky.),  p.  (uo. 

Deliberation  as  affected  by  drunkenness.     Warren  v.  Com.  (Pa.),  p.  SOU. 
DKLAWAHE. 

Test  in,  p.  I'SI 

Burden  on  Prisoner,  p.  514. 

DI'lLIBERATION. 

.S'ee  Dkgreks  ok  C)umk. 

DELIKIUM  tremens;. 

See,  also,  Drixkknxess. 

If  a  person  suffering  under  delirium  tremens,  is  so  far  insane  as  not  to 
know  the  nature  of  his  act,  etc.,  he  is  not  punishable.     U.  S.  v.  McGlue 

(U.  S.),  p.  55. 

Voluntary  intoxication  does  not  excuse  or  palliate  a  crime,  tlirough  insan- 
ity—mania  a  potu  or  delirium  tremens  may.  Carter  v.  .state  (Tex.), 
p.  588. 

Delirium  tremens  is  a  species  of  insanity.     Erioin  v.  .State  (Tex.),  p.  845. 
Delirium  tremens   is   usually  the  result   of  a  disuse  of  intoxicants  by  an 
habitual  drunkard,  but  it  may  ensue  from  casual  drunkenness.     Id. 

DELUSIONS. 

One  who  commits  a  crime  under  the  influence  of  an  insane  delusion  is  pun- 
ishable, if  he  knew  at  the  time  that  he  was  actiug  contrary  to  law. 
State  V.  Metoherter  (la.),  p.  102. 

Notwithstanding  a  i)arty  accused  did  an  act  which  was  in  itself  criminal, 
under  the  intluence  of  insane  delusion,  with  a  view  of  redressing  or 
revenging  some  supposed  grievance  or  injni-y,  or  of  producing  some 
public  benefit,  he  is  nevertheless  punishable  if  he  knew  at  the  time  lie 
was  acting  contrary  to  law.     McNanhten's  Case  (Eng.),  p.  150. 

A  party  laboring  under  a  partial  delusion  must  be  considered  in  the  same 


1)32 


INDKX. 


DKLUSK  >NS  —  Continued. 

situation,  iis  to  respousibility,  as  if  tlie  facts,  in  respect  to  whicli  tlic 
delusion  exists,  were  real.     Id. 

Where  the  delusion  of  a  person  is  siuli  that  he  has  a  real  and  llrm  belief  of 
tiie  existence  of  a  fact  which  is  wholly  imaginary,  and  under  that  in- 
sane belief  lie  does  an  act  which  would  be  justitiable  if  such  fact  ex- 
isted, lie  is  not  responsible  for  such  act.     Com.  x.liogers  (Mass.),  p.  lo«. 

An  insane  delusion  is  an  unrea.soning  and  incorriuible  belief  in  the  existence 
of  facts  which  are  either  impossible  absolutely,  or  impossible  under 
the  circumstances  of  the  individual.     U.  S.  v.  Guitean  {V.  S.),  p.  let. 

(Opinions  or  beliefs  founded  <m  reasonin.ix  and  reliectioii  are  not  insane  (h- 
lusions  nor  within  the  law  regarding  them.     Id. 

The  court  instructed  the  jury:  "If  the  defendant  has  an  insiine  delusion 
upon  any  one  subject,  l)ut  connnits  crime  upon  some  other  matter  not 
connected  witli  that  particular  delusion,  lie  is  equally  guilty  as  if  he  hail 
no  delusion,  and  was  iterfcctly  sane."  Held,  proper.  tState  v.  Gut 
(Minn.),  p.  18'J. 

The  law  as  to  insane  delusions,     p.  ','>2A. 

An  insane  delusion  relieves  a  person  from  responsibility  when,  and  only 
when,  the  fact  or  state  of  facts  which  are  believed  in  under  the  in.sane 
delusion  would,  if  actually  existing,  have  justified  the  act.  llosiccU  \. 
State  (Ala.),  p.  :!oL'. 

Wiicii  is  a  criminal  act  iloue  under  an  insane  delusion  not  punishable. 
State  V.  John  (\.  ('.),  i).  7H7. 

DKMENTIA. 

See  I.Miux'n.K. 

l)UrN'ivI<:NNESS. 

See,  aluo,  Kxowi.Kixii: ;  CAi'Acrrv  to  Commit  Ciumi;;  Lntim';  Dki.ikh.m 
Tkkmkns:   I'rovoc.vtio.n  ;    Dkoui'.ks  oi.-  (.'huh; :   M.\i,i(t::  Ciiii.o. 

If  a  person,  while  sane  and  responsil)le,  makes  himself  intoxicated,  and 
while  intoxicated,  commits  murder  l>y  reason  of  insaiuty,  which  wa> 
one  of  the  consequences  of  intoxication,  and  one  of  the  attendants  on 
that  state,  he  is  responsible,     f.  S.  v.  McGhte  (U.  S.),  p.  55. 

N'oluntary  drunkenness  is  no  excu.se  for  crime:  but  insanity  produced  i)y 
continued  intoxication  is.     lirudleij  v.  State  (Ind.),  p.  11."). 

Wliere  a  crime  is  connnitted  intentionally  as  a  matter  of  revenge,  the  In- 
toxication of  the  prisoner  does  not  cliange  its  grade.  State  v.  (rut. 
(Minn.),  p.  18'.'. 

Drunkcuuess  from   social  hilarity  is  no  excuse  for  crime,     h'riel  v.  (.'"»" 
(Ky.),  p.  :i7i'. 

Temporary  insanity  resulting  immediately  from  voluntary  intoxication  is  \\<> 
defence  to  crime.  Hut  in.saiiity  remotely  occasioned  by  previous  li:ul 
habits  is  entitled  to  the  same  consideration  as  if  It  arose  from  any  otinr 
cause.     State  v.  Hnndlen  (Mo.),  p.  418. 

N'oluntary  tirunkenness  of  whatever  degree  constitutes  no  (U'fence  to  tin 
commission  of  crime.     People  v.  Garhnit  (Mich.),  p.  1(1,'). 


i 


INDKX. 


'.)3.'} 


DIU'NKENNKSS  —  Continued. 

Drunkenness  is  no  excuse  for  eriuie.     McKcnzic  v.  State  (Ark.),  p.  5;'.:?. 

If  ii  man's  mind,  unexeited  by  lit|Uor,  is  capable  of  distingnlslihiK  between 
ri.!,'ht  and  wrong,  and  he  voluntarily  deprives  lumself  of  reason  by  in- 
toxicatiou.snch  intoxication  is  no  excuse  for  a  crime  committed  in  tiiat 
condition.     Choice  v.  Slate  ((ia.),  p.  ii.-.s. 

Nor  does  it  make  any  difference  that  a  man,  either  i)y  a  former  injury  to  the 
head  or  i)rain,  or  a  constitutional  inhrmity,  is  more  apt  to  l)e  maddened 
i)y  liquor  than  another  man.  If  he  has  leijal  memory  and  discretion 
when  sol)er,  and  voluntarily  deprives  himself  of  reason,  he  is  responsi- 
ble for  his  acts  while  in  that  condition.     Id. 

4n  inordinate  thirst  for  liquor,  produced  I)y  the  habit  of  drinkinji,  is  no  ex- 
cuse for  the  consequences  of  such  indulgences.  The  disease  called 
oinomania  questioned.     Id. 

The  voluntary  drunkenness  of  a  murderer  neitiier  excuses  the  crime  nor 
mitigates  the  punishment.     Shannahati  v.  Com.  (Ky.),  p.  557. 

One  in  a  state  of  voluntary  intoxication  is  sul)ject  to  the  same  rules  of 
conduct  and  principles  of  law  as  a  sol>er  man,  and  where  a  provocation 
is  offered,  and  the  one  offering  it  is  killed,  if  it  mitigates  the  offence  of 
the  man  drunk,  it  should  mitigate  the  offence  of  the  man  sober.    Id. 

Voluntary  intoxication  is  no  defence  to  crime;  so  long  as  the  offender  is 
capable  of  conceiving  a  design  he  will  be  i)resumed  to  have  intended 
the  natural  consequences  of  his  acts.    Kenny  v.  People  (N.  V.),  p.  5G2. 

Artificial  and  temporary  madness  l)y  drunkenness  voluntarily  contracted  is 
no  defence  to  the  charge  of  homicide.     Bennett  v.  State  (Tenn.),  p.  571 . 

II.  was  indicted  for  murder.  It  was  proved  that  he  was  drunk  at  the  time 
of  the  offence.  The  judge  charged  die  jury  that  drunkenness  was  an 
aggravation  of  the  offence,  unless  the  prisoner  was  so  deeply  intoxicated 
as  to  be  incapable  of  forming  a  deliberate  and  premeditated  design  to 
do  the  act.     //e?d,  error.     Haile  v.  State,  {l^mx.),  {).  ol?,. 

Drunkenness  may  produce  intoxication  or  mental  unsoundness.  So  far  as 
it  produces  the  former  it  is  no  defence  to  crime.  But  mental  unsound- 
ness resulting  from  drunkenness  may,  if  it  overthrows  the  prisoner's 
sense  of  right  and  wrong,  be  an  excuse  or  palliation  for  crime,  lieasle^i 
V.  State  (Ala.),  p.  577. 

Insanity  resulting  from  long  continued  drunkenness  is  an  excuse  for  crime: 
but  insanity,  the  immediate  result  of  'ntoxication,  is  not.  Cornwell  v. 
State  (Tenn.),  p.  683. 

Voluntary  drunkenness  does  not  excuse  a  crime,  but  permanent  insanity, 
like  every  other  kind  of  insanity,  excuses  an  act  which  olherwi.se  wouiii 
be  criminal.     BosweWs  Ccxe  (Va.),  j).  5<)'J. 

Where  a  person  is  insane  at  the  time  heconunitsa  murder,  he  is  not  punish- 
able as  a  murderer,  although  such  insanity  be  remotely  occasioned  In 
undue  indulgence  in  spirituous  liquors.  But  it  is  otherwise,  if  he  be  ai 
the  time  intoxicated,  ami  his  insanity  be  directly  caused  by  the  immedi- 
ate influence  of  such  li(|Uors.     ['.  S.  v.  Drew  (U.  S.),  p.  (JOl. 


\}U 


INDEX. 


DIJL'NKKNNKSS  —  Continued. 

Drunkenness  does  not  mitigate  a  crime;  neither  can  it  be  talven  into  cim- 
sideration  by  a  jury  in  deterniiniiifi  whether  a  person  committing  ;i 
lioniicide  acted  tiierein  wilfully, .deliberately,  and  premeditutedly,  so  as 
to  constitute  murder  in  the  first  degree.     State  v.  Cross  (Mo.),  p.  fjl'.i. 

Voluntary  intoxication  is  no  excuse  for  crime.  Peoplev.  Rogers  (N.  V.),  p. 
G24. 

Insanity  resulting  from  habits  of  intemperance  and  not  directly  from  the 
immediate  influence  of  intoxicating  liquors,  may  amount  to  a  defence 
to  crime.     Id. 

On  an  offer  to  prove  the  prisoner's  intoxication  at  the  time  of  the  commis- 
sion of  the  alleged  crime,  the  court  remarked:  "  If  you  offer  it  as  a 
defence  I  think  it  is  immaterial,  because  I  shall  instruct  the  jury  that 
driinkenness  is  more  of  an  aggravation  than  an  excuse."  Held,  error. 
State  V.  Donovan  (la.),  p.  G78. 

Insanity  occasioned  by  voluntary  intoxication  will  not  excuse  where  tin- 
person  is  aware  of  hi.s  liability  to  insanity  from  the  cause,  and  has  sulli- 
cient  mental  capacity  to  form  an  Intent.     Boberts  v.  People  (Mich.),  ]<. 

(;87. 

But  insanity  (of  which  a  person  is  ignorant)  resulting  from  voluntary 
intoxication  will  render  a  person  not  responsible,  whei'e  he  does  not 
know  what  he  is  doing  or  why  he  is  doing  the  act,  or  if  conscious  ot 
this,  he  is  not  conscious  of  any  object  in  doing  it,  or  if  the  diseascil 
mind  has  so  perverted  his  reason  that  he  does  not  know  that  what  he  i> 
doing  is  wrong.    Id. 

Where  the  defence  of  temporary  insanity  proceeds  upon  the  theory  that  it 
was  induced  by  the  operation  of  strong  drink  upon  a  mind  rendered 
unsound  by  an  injury  to  the  brain,  it  is  error  to  leave  tlie  question  oi 
criminal  responsibility  to  be  determined  upon  the  facts  of  injury  and 
mental  unsoundness  alone,  or  upon  the  effect  of  intoxicating  liquors 
apart  from  the  other  facts.     People  v.  Cummins  (Mich.),  p.  (it)5. 

One  in  a  state  of  voluntary  intoxication  is  sui)ject  to  the  same  rules  of  con- 
duct and  the  same  legal  inferences,  as  a  sober  man.  State  v.  McCants 
(S.  C),  p.  722. 

N'oluntary  drunkenness  will  not  mitigate  a  crime.     State  v.  John  (N.  C),  p. 

787. 
Drunkenness  is  no  excuse  for  crime,  pp.  727-744. 

No  defence  to  crime  of  perjury,  y   744. 

No  defence  to  crime  of  hlasphem.     p.  745. 

No  defence  to  crime  of  arson,  p.    15. 
Hut  it  does  not  aggravate  the  offence,  p.  745. 
Kxceptions  to  the  rule,  p.  747. 

An  excuse  if  it  produces  insanity,  pp.  747-754,  873,  874. 
.Vnd  it  is  relevant  on  the  degree  of  a  crime,  pp.  754-757,  87;'),  874. 

But  not  in  Missouri,  p.  757. 
.Vnd  it  is  relevant  on  (luestion  of  intent,  p.  758. 


Y 


INDEX. 


1)35 


lly,  so  as 

,  p.  fii;-. 

r.  v.),  \>- 


DHrNKKNNESS  —  Continued. 

An  excuse  for  attempt  at  suicide,  p.  7<!5. 

Effect  of  drunkenness  on  confessions,  p.  7ti5. 

Relevant  on  question  of  knowledge,  p.  7(15. 

Relevant  to  explain  threats,  p.  7(!i!,  87-1. 

Relevant  on  question  of  provocation,  p.  707. 

Relevant  on  question  of  self-defence,  p.  7(!7. 

Drunkenness  created  by  third  party  to  cau.se  crime,  p.  7(J8. 

ECCENTRICITIES. 

Evidence  not  offered  to  prove  insanity,  l)ut  solely  as  bearing  on  the  ques- 
tion of  intent,  deliberation,  and  premeditation,  that  the  conduct  of  the 
prisoner  prior  to  the  homicide  was  characterized  by  eccentricities  and 
peculiarities  causing  criticism  with  reference  to  his  mental  capacity,  is 
inadmissible.     Sindram  v.  People  (N.  Y.),  p.  802. 

ELECTIONS. 

See  Intent. 
ENGLAND. 

Test  of  insanity  in,  p.  210-231. 
Burden  of  proof  on  prisoner,  p.  522. 

EROTOMANIA. 

Irrelevant  on  charge  of  murdering  a  man,  p.  782. 
ERSKINE. 

His  argument  in  Hadfleld's  Case,  p.  201. 
EVIDENCE. 

See  Relatives,  Insanity  in;  Prior  Insanity;  Experts;  Acts  and  Con- 
duct; Husband  AM)  Wife;  Deci,ar.vtion's. 

Irrelevant,  confusing,  or  misleading  questions  based  on  the  defence  of  In- 
sanity, should  not  be  permitted.    Dejarnette  v.  Com.  (Va.),p.  18. 

A  jury  is  not  authorized  to  tind  a  prisoner  insane  because  some  cause  existed 
Avhich  might  tend  to  produce  Insanity.     Sawyer  v.  State  (Ind.),  p.  7!}0. 

EXCITEMENT. 

See,  also,  Adultery. 

Insanity,  when  pleaded  in  defence  of  a  criminal  act,  such  as  homicide,  must 
be  clearly  sliown  to  have  existed  at  the  time  of  the  commission  of  the 
act.  Therefore,  evidence  of  a  witness  to  show  a  state  of  mental  excite- 
ment in  the  accused,  produced  by  the  insulting  (language  and  threats 
used  towards  him  by  the  deceased,  his  wife's  paramour,  at  the  time  of 
the  killing,  is  not  admissible  to  show  insanity.  State  v.  Graviotte  (La.), 
p.  785. 

EXPERTS. 

See,  also.  New  Trial. 

Proper  form  of  questions  to,  p.  2(). 


!t;;i; 


INDKX. 


KWEHTH  —  Continued. 

Kxpcrts  arc  not  allowed  to  ifivt-  tiu'ir  oiMiiions  on  tin'  lahU',  whore  its  fuels 
are  eontrovcrtcd:  l)iit  counsel  may  pnttothein  a  state  of  facts,  and  ask 
their  opinions  tliereon.     ^'.  ,S'.  v.  MrAilue  (!'.  S.),  p.  iH. 

Medical  witnesses  who  have  no  i)ersonal  l<nowle(l;;e  of  the  i)rlsoner  cannot 
l)e  allowed  to  give  an  opinion  formed  from  the  testimony  in  the  case, 
and  his  condnct  on  the  trial,  as  to  his  sanity  at  the  time  of  the  act- 
State  V.  Felter  (la.),  p.  D-'. 

Books  of  science  are  not  adniissil)le  in  evidence,  limdley  v.  Slate  (.Ind.), 
p.  115. 

The  evidence  of  an  expert  should  not  l)e  discredited  merely  becau.se  he  ex- 
pects to  have  his  expen.ses  paid  by  the  party  calling  liim.     Id. 

Where  an  accused  person  is  supi)osed  to  be  insane,  a  medical  man,  wlio  lias 
been  present  in  court  and  heard  tlie  evidence,  may  be  asked,  as  a  mat- 
ter of  science,  wliether  the  facts  stated  by  the  witnesses,  supposing 
them  to  be  true,  show  a  state  of  mind  incapable  of  distingnishing  be- 
tween right  and  wnmg.     McNagliteiCs  (Jane  (Kng.),  p.  150. 

i'he  opinions  of  medical  men  on  the  state  of  ndnd  of  the  prisoner  are  ad- 
m'ssible,  thongh  they  liave  not  personally  examined  him.  Com.  v, 
h'->i  ■   ->  (Mass.),  p.  158. 

The  wt'ialr  ')f  '.ucli  testimony.     Quetig  v.  State  (Ind.),  i).  450. 

Medical  experts  who  have  heard  the  whole  of  the  evidence,  or  to  whom  the 
whole  of  the  evidence  has  been  hypothetically  stated,  may  give  an 
opinion  as  to  the  sanity  of  the  prisoner  at  the  time  in  question ;  but 
they  cannot  predicate  an  opinion  on  anything  less  than  the  entire  evi- 
tlence  whether  actually  or  hypothetically  presented.  Webb  v.  State^ 
(Tex.),  p.  835. 

Evidence  of  experts,  p.  87'.t. 

FORMER  TRIAL. 

Where  witness  becomes  insane,  liis  testimony  on  former  trial  is  adnussible. 
p.  8()(;. 

GEORGIA. 

Test  in,  p.  231. 

Burden  on  prisoner,  p.  510. 

HABEAS  coRrrs. 

Refusal  of,  where  defence  was  insanity,  p.  874. 

HKREDITARY  INSANITV. 

See,  RKi..\TiVES,  Ins.\nmtv  in. 
HUSBAND  AND  WIFK. 

Testimony  as  to  insanity  not  within  rule  as  |to  contldential  communications, 
p.  858. 

HYrOCONDRIA, 

Occasional  oddity  or  hypocondria  does  not  amount  to  insanity  excusing  tlie 
com*  iiraion  of  a  criminal  offence.  Nothing  short  of  the  inability  to  dis- 
tinguish right  from  wrong  can  ilo  so.      Hawe  v.  State  (Neb.),  p.  Kl. 


INDKX. 


!>;;7 


ILLINOIS. 

No  test  in,  p.  ;{24. 

Burden  on  prosecution,  p.  52<:. 

IMBKCILE. 

An  Imbecile  ought  not  to  be  hold  responsil)le  criniinally  unless  of  capacity 
of  ordinary  children  under  fourteen  years  of  age,  i.e.,  chihiren  of  hniii- 
ble  life  and  of  only  ordinary  training.  State  v.  Richards  (Conn.),  !••  1  : 
and  see  yi.  782. 

INDIANA. 

Test  in,  p.  )V>\. 

Burden  on  prosecution,  p.  r)2(l. 
INSANE  PERSON. 

Acts  of  not  punlsiuible,  p.  200. 
INSANE  OR  UxVCONTROLLABLE  IMPULSE. 

See,  also,  Morai,  Insanity;  Tkst  of  Insanity. 

If  an  insane  impulse  leads  to  the  comnussion  or  a  crime,  the  actor  is  not 
responsible.  An  instruction  that  "  if  the  jury  believe  that  the  defend- 
Miit  knew  the  difference  between  right  and  wrong  in  respect  to  tlie  act 
in  question;  if  he  was  conscious  that  such  act  was  one  which  he  ought 
not  to  do,"  he  was  responsible  for  his  act,  is  erroneous.  Stevena  v. 
State  (Ind.),  p.  87. 

If  a  person  commit  a  homicide,  knowing  it  to  be  wrong,  t)Ut  driven  to  it  i)y 
an  uncontrollable  and  irresistible  impulse  arising  not  from  natural  pas.- 
sion,  bnt  from  an  insane  condition  of  the  mind,  lie  is  not  criminally 
responsible.     State  v.  Felter  (la.),  p.  !t2 

The  uncontrollable  impulse  which  will  relieve  a  person  from  the  consc- 
(piences  of  the  commission  of  a  crime,  must  have  its  origin  alone  in  a 
diseased  mind.     State  v.  Mewherter  (la.),  p.  102. 

"  Emotional  insanity,"  i.e,  "that  convenient  form  of  insanity  which  enables 
a  person  who  does  not  choose  to  bridle  his  passion  to  allow  it  to  get 
and  keep  the  upper  hand  just  long  enough  to  enable  him  to  commit  an 
uctof  violence  and  then  subside,"  criticised.  People  v.  Fiiiley  (Midi,), 
p.  140. 

The  law  does  not  recognize  any  moral  power  compelling  a  man  to  do  what 
he  knows  to  l)e  wrong.     State  v.  Brandon  (N.  C),  p.  144. 

The  insanity  which  takes  away  the  criminnl  quality  of  an  act  must  be  sucli 
as  amounts  to  a  mental  disease,  and  prevents  the  accused  from  know- 
ing the  nature  and  quality  of  the  act  he  was  doing.     Id. 

INSTRUCTIONS. 

It  is  error  for  the  court  to  select  certain  facts  shown  by  the  evidence,  and 

tell  the  jury  what  weight  should  be  attached  to  them.     State  v.  Smitli 

(Mo.),  p.  413;   State  v.  Hundley  (Mo.),  p.  418. 
An  instruction  which  states  that  there  was  some  evidence  tending  to  show 

that  the  defendant  was  drunk  in  misleading.     State  v.  Donovan  (la.). 

p.  (i78. 


y 


93« 


INDKX, 


INSTUrCTIONS  —  Continnnl. 

A  prisoner  on  trial  is  entitled  to  Imvt-  tiio  tlieory  of  Ills  <lof<'iH-('  clfarly  ri'c- 
oirnized  in  tlio  clmrge  of  tlic  court.  I'euplK  v.  Cummins  (Midi.),  p. 
(Mo. 

On  a  trial  f<<r  tlicft  tlu-  (lefence  being  tlie  propensity  to  sti'all<no\vn  as  lilep- 
tomania,  and  tliere  being  evidence  tending  sustain  to  it,  tlie  court 
should  charge  tlie  jury  speclllcally  on  this  point.  A  submission  of  the 
usual  tost  of  the  prl.soner's  ability  to  distiiiguisli  between  right  and 
wrong  is  insuHlcieiit.     Louney  v.  iState  (Tex.),  p.  7(;!i. 

It  is  proper  for  tlie  court  to  direct  the  attention  of  tiie  jury  to  the  defence 
of  insanity,  and  Instruct  them  that  it  siiouid  lie  carefully  and  intelli- 
gently scrutinized.     Sawyer  v.  iState  (Ind.),  p.  7'.»0;  and  .seep.  8()7. 

Oil  a  trial  for  murder  certain  letters  written  by  the  prisoner  after  tlie  lioni- 
icide  were  introduced  in  evidence,  in  commenting  upon  which  in  his 
charge  the  court  .said :  "They  exhibit  a  reckless  de|)ravlty  of  nature, 
destitute  of  remorse  or  regret,  the  reckless  spirit  of  a  des|)erado." 
Subsequently  the  court  told  the  jury  to  disregard  what  had  been  said 
about  the  letters  and  to  form  their  own  conclusions.  Held,  no  error. 
The  court  also  said  that  tliese  letters  exhibited  a  "liigh  order  of  intel- 
ligence," but  afterwards  withdrew  the  words  "  high  order  of."  Held, 
no  error.     Sindram  v.  People  (N.  Y.),  p.  802. 

Where  the  court  instructs  the  jury  on  the  general  issue  of  guilt  that  the 
prisoner  is  entitled  to  the  benetlt  of  any  reasonable  doubt,  it  is  not  error 
to  refuse  to  charge  as  to  reasonable  doubt  specially  with  regard  to  tiie 
issue  of  his  sanity.     Webb  v.  State  (Tex.),  p.  835. 

The  defence  being  delirium  tremens,  and  there  being  evidence  tending  to 
establish  it,  the  court  should  charge  specially  the  principles  of  law 
applicable  to  this  defence.    Irwin  v.  State  (Tex.),  p.  845. 

However  slightly  the  evidence  may  tend  to  establish  a  defence,  the  court 
should  charge  the  law  applicable  to  that  defence.    Id. 

Judge  need  not  specially  detiue  the  various  types  of  insanity,  p.  8<!(!. 

Duty  to  instruct  on  insanity  plea,  p.  867. 

INTENT. 

On  a  trial  for  assault  with  intent  to  commit  rape,  if  the  j)risoner  was  so 
drunk  as  to  be  incapable  of  forming  an  intent  to  ravish,  he  should  be 
acquitted.     State  v  Donovan  (la.),  p.  i!78. 

One  wrongfully  taking  the  property  of  anotlier,  but  too  drunk  to  entertain 
a  felonious  intent,  cannot  be  convicted  of  larceny.  Wood  v.  Statf 
(Ark.),  p.  {i80. 

In  a  prosecution  for  breaking  and  entering  a  dwelling  house  with  intent  to 
commit  larceny,  the  drunkenness  of  the  |)risoner  at  the  time  is  admissi- 
ble in  evidence  on  the  question  of  Intent.     State  v.  Bell  (la.),  p.  (182. 

Drunkenness  cannot  excuse  or  justify  crime,  but  It  may  be  shown  in  order 
to  determine  whether  any  crime  or  a  particular  crime  has  been  com- 
mitted at  all.     Scott  V.  State  (Tex.),  p.  liS<>. 

Voluntary  intoxication  will  not  excuse  acts  which  constitute  an  offence. 
Where,  however,  the  offence  cliarged  Is  an  act  combined  with  an  Intent 


iM)i:x. 


}>31« 


\STKXV  — Continued. 

to  commit  ail  ojfencc  not  actually  committed,  if  tiio  prisoner  was  roti- 
(Icrod  by  intoxication  incapalilc  of  cntortaining  tin-  intent,  he  is  not 
re.sponsil)lc.     Itoberta  v.  People  (Mich.),  p.dST. 

If  a  person  has  tlie  capacity  to  form  tlie  intentto  l<ill  Ijy  tiie  intiaiis  used  Ids 
voluntary  intoxication  will  l)e  no  protection,  althouiih  ids  mental  facul- 
ties were  tiiereby  so  obscured  as  to  malie  him  incapable  of  jnd<|in<;  be- 
tween right  and  wrong,    hi. 

A  person  cannot  Ik;  guilty  of  larceny  whose  ndnd  cannot  comi)rehend  all  the 
essential  ingredients  of  tlie  offence,  and  recognize  tiieir  existence. 
Therefore  an  instruction  that  one  who  knows  he  has  been  taking  proi)- 
erty  not  his  own  is  sane  enough  to  commit  the  crime  of  larceny  is  error. 
People  V.  C'ommiiis  (Mich.),  p.  Wo. 

It  is  no  defeniu;  to  an  indictment  for  illegally  voting  more  tlian  once  at  tlie 
same  election  that  tlie  (irisoner  was  so  drunk  when  he  gave  his  second 
vote  that  he  did  not  know  what  lie  was  doing  and  did  not  know  that  he 
had  alreatly  voted.     Stute  v.  IVelcli  (Minn.),  p.  i;!)7. 

The  act  of  voting  more  than  once  at  the  same  election  is  not  a  crime  unless 
done  knowingly  and  with  wrong  intent.  Tlierefore  a  person  charged 
with  this  crime  may  show  that  he  was  intoxicated  at  the  time  he  (!om- 
mitted  the  act,  not  as  an  excuse  for  the  crime,  but  to  enable  the  jury 
to  determine  whether  his  mental  condition  was  such  tliat  lie  knew  lie 
was  committing  an  ofiEence.     People  v.  Harris  (Cal.),  ().  701. 

Mere  intoxication  is  no  extenuation  or  excuse  for  crime ;  but  it  may  be  con- 
sidered by  the  jury  upon  the  (luestion  of  intent  or  malice.  Kelly  v. 
State  (Miss.),  p.  70(>. 

In  cases  which  involve  intention,  as  well  as  acts  (as  theft,  etc.),  evidence 
of  the  drunkenness  of  the  prisoner  at  the  time  of  the  commission  of  the 
crime  is  relevant.      Wenz  v.  State  (Tex.),  p.  708. 

IOWA. 

Burden  of  proof  on  prisoner,  p.  5l(i. 

JURY. 

See,  also,  L.^w  and  Fact;  Ciiali.knge. 

Misconduct  of  jury;  reading  newspaper  accounts  of  insanity  as  a  defence, 
p.  873. 

KANSAS. 

Test  in,  p.  232; 

Burden  on  prosecution,  p.  527. 

KENTUCKY. 

Moral  insanity  recognized,  p.  270. 
Burden  on  prisoner,  p.  517. 

KLEPTOMANIA. 

See,  also.  Instructions. 

Ts  a  recognized  symptom  of  insanity.  Looney  v.  State  (Tex.),  p.  7ii'.»;  and 
see  p,  77!). 


St40 


INDKX. 


KNOWLEDGE. 

Drunkenness  of  the  uccuscd,  at  the  time  of  piissliig  the  iillegfd  counterfeit 
l)lli,  is  a  circumstance  proper  to  be  .submittetl  to  thi'  consideratinn  of 
tlic  jury,  and  sliould  iuive  Its  just  u eight  in  determining  wliether  tin- 
accused  l<nc\v  tiie  l)ill  to  l)e  counterfeit.     Pi<imnn  v.  State  (().),  p.  I'JO. 

LAUCENY. 

.S'ec  Intk.nt;  C^ArAciTY  ro  (^)M.\iir  Crimk. 

L.VW  AND  FACT. 

Insanity  a  questiou  of  fact  for  jury,  p.  HM. 
Finding  of  jury  conclusive,  p.  H\',H. 

LOUISIANA. 

Burden  of  proof  on  prisoner,  p.  517. 
MAINE. 

Test  in,  p.  '2ii2. 

Burden  on  prisoner,  p.  i)\7. 

MALICE. 

On  the  question  of  malice,  evidence  of  the  prisoner's  intoxication  is  ailinis- 

siblf.     ShannahaJi  v.  Com.  (Ky.),  p.  557. 
Intoxication  does  not  necessarily  disprove  the  existence  of  malice  in  the 

commission  of  a  criminal  act.     State  v.  Johnson  (Conn.),  p.  OO'J. 

C;i  an  indictment  for  murder  in  the  first  degree,  which  by  statute  requires 
the  existence  of  actual  malice,  tlie  fact  that  the  prisoner  was  intoxi- 
cated at  tl'c  time  is  to  be  considered  as  tending  to  prove  that  such 
malice  did  not  exist.    Id. 

In  murder  in  the  second  degree,  whicli  rests  upon  Implied  malice,  the  jury 
may  find  the  existence  of  malice,  although  the  prisoner's  condition  at 
the  time  of  tlie  crime  disproves  express  malice.    Id. 

On  an  indictment  for  maliciously  stabbing  with  intent  to  kill,  it  was  in 
evidence  tliat  the  prisoner  was  intoxicated  at  the  time  of  the  act.  The 
judge  refused  to  charge  the  jury  that  intoxication  "  is  a  circumstance 
proper  to  be  taken  into  consideration  by  them,  and  should  have  its 
just  weight  in  determining  tlie  malicious  intent."  IMd,  not  error. 
Nichols  v.  State  (O.),  p.  ()(!7. 

MASS.VCHUSICTTS. 

Test  in,  p.  2!52. 

Burden  on  prisoner,  p.  517. 

MICHIGAN. 

Test  in,  p.  233. 

Moral  insanity  disapproved,  p.  300. 

Burden  on  State,  p.  527. 

MINNESOTA. 

Test  in,  p.  233. 

Burden  on  pri.soner,  p.  518. 


FNDKX, 


•.•41 


•MISSISSIl'lM. 
Test  in,  p. :.';)!!. 
Uiirdt'ii  on  State,  |).  yjl . 

MISSOUKF. 

Test  in,  p.  l'a;i. 

Burden  on  prisoner,  p.  oIH, 

MORAL  INHAMTV. 

See,  iilsd,  Insank  oi{  Uncon  i  uor.i.Aiti.K  I.mimi.sk. 

A  person  wlio  is  possessed  of  a  sound  mind  is  liable  for  a  rriiiiiiial  net, 
though  committed  under  tiie  impulse  of  passion  or  revenge  which  may 
temporarily  dethrone  reason  and  control  the  will,  StntP  v  >stifkl<''/ 
(lu.),  I.    108. 

Insanity  may  destroy  either  tlie  understanding  or  tlie  will.  An  instruction, 
therefore,  which  limits  tlie  inquiry  of  the  jury  to  the  conditi«)n  of  the 
power  to  apprehend  l>y  the  understanding,  is  erroneous.  Ih-ndloj  v. 
State  (Ind.),  p.  in. 

Moral  mania,  i.e.,  the  derangement  of  the  moral  faculties,  wliere  it  Is 
proved  to  exist,  shouhl  l)e  considered  l)y  the  jury  in  determining  llie 
degree  of  a  crime.     Anderson  v.  State  (Conn.),  p.  12'.>. 

Moral   insanity  existing   in  such  violence  as  to  render  it  impossil)le  for  tlie 
party  to  resist  its  promptings   is  an  excuse  for  crime.     Scott  v    Vom 
(Ky.),  p.  l:t<;. 

The  court  instructed  tlie  jury  that  they  sliould  not  acquit  on  tlie  ground  of 

moral   in.sanity   "unless    it   had  manifested    it.seif   in  former  acts   of 

similar  character  or  lilve  nature  to  the  offence  ciiarued."     Udil  error 
Id.  ,  . 

Moral  In.sanity—  Irrisistiliie  Impulse,  L'70: 
Doctrine  recognized  in  some  States,  270; 
Denied  In  others,  ;50!); 
and  In  Kngland,  309. 
Moral  insanity,  which  consists  of  irrisistil)le  impulse,  co-existing  with  men- 
tal sanity,   should    not  l)e    recognized   liy    tlie  law.     Bosmull   v.    St<ii^ 
(Ala.),  p.  ;i5i'. 

Mental  or  moral  insanity,  however  recent,  to  such  an  extent  as  to  destroy 
free  agency  or  moral  responsibility,  on  boiTif:  establlshetl  by  satisfac- 
tory evidence,  will  excuse.     Krielw  Com  .' k;  .),  ;!7!i. 

Moral  insanity  criticised,  Coyle  v.  Com.  (I'a.),  p.  441;  Cnnninghmn  v. 
State  (Miss),  p.  4  7(i. 

Moral  insanity  or  irresponsibility  for  crime  from  inability  to  control  the 
will  from  the  hatiit  of  indulgence,  has  no  foundation  in  the  law. 
Choicvw  State  (Ga.),  5;]!». 

Moral  insanity  is  now  as  well  understood  and  established  as  intellectual  in- 
sanity.    Smith  V.   Com.  (Ivy.),  j).  070. 

MOTIX'K. 

Si'f     I'HKSlMI'riON. 


J»42 


INUKX. 


NKBKASKA. 

Tost  in,  )).1.';;4. 

Hiirdt-n  on  Stat*-,  p.  :yJ7. 

NKW  HAMrSIIIHK. 

No  tost  in,  p.  ;UI . 
Burden  in  State,  j).  .")L'7. 

.\i;VV  JICUSKV, 

'IVst  in,  p.  2;U. 

Biinlen  on  i'risoncr,  p,  .IN. 

NKW  YORK. 

Test  in,  p.  2;U. 

Bunlcnon  prosecution,  i).  J2!i. 

NEW  TRIAL. 

See,  also,  Nkwly  Discuvkkkd  Kvii>i:n(  k. 

A  new  tritil  will  not  be  granted  on  account  of  newly  discovered  evidence 
whicli  is  cumulative.     State   \ .  liedemeicr  (Mo.),  p.  4l'4,  and  see  p.  8(l'.i 

That  an  expert  witness  by   tlie   defence  has,  testified  contrary   to   expecta- 
tion is  no  reason  for  a  new  trial  on  the  ground  of  surprise.     Webb  v 
State  (Tax.),  p.  S85. 

NEWLY  DlSCOVERKl)  EVIDENCE. 
See,  also,  Nkw  Trial. 

A.  was  indicted  for  murder  in  the  first  degree,  and  was  c»^  cd  after  of- 
fering some  evidence  of  his  insanity.  A  new  trial  was  afterwards 
asked  for  on  the  ground  of  newly  discovered  evidence  of  his  insanity. 
Held,  that  it  sliould  be  granted.    Anderson  v.  State  (Conn.),  p.  12;t. 

NORTH  CAROLINA. 
Test  in,  p.  267. 

Moral  insanity  criticised,  p.  ;50y. 
Burden  on  prisoner,  p.  518. 

OHIO. 

Test  in,  p.  257. 

Burden  on  prisoner,  518. 

"ONCE  IN  JEOPARDY." 

If  it  is  not  suggested  that  tlie  accused  is  insane  at  the  time  of  the  trial,  and 
the  jury  impanelled  for  the  trial  of  the  cause  be  discharged,  tlic  pris- 
oner is  thereby  wrongefl  byl)eing  prevented  from  malting  his  proper  de- 
fence before  the  jury,  and  is  entitled  upon  his  motion  to  be  disciiargcd 
from  further  prosecution  of  the  indictment.  Oruher  v.  State  (W.  ^'a.), 
p.  912. 

OPEN  AND  CLOSE,  RIGHT  TO. 

See,  also,  Trial,  Insanity  at  Time  of. 

In  a  criminal  trial,  where  the  defence  is  insanity,  the  prisoner  is  not  en- 
titled to  open  and  close.     State  v.  Felter  (la.),  p.  371. 


1  evidence 
see  p.  8il'.i 
>  (;xi)ecta- 
[Vebb  V 


1  after  of- 
fterwiirds 
1  insanity. 
|).  12'.). 


trial,  niid 
I  tlie  pris- 
proper  de- 
isciiargcd 

(W.  Va.), 


IS  not  011- 


INDKX. 


#48 


ol'KN  AM)  (JI.OSi:,  KKiiiT  To   ~  Contimipcl. 

Tlie  deffiice  of  insanity  under  tlu'  plea  of  not  j,'iiilty  docs  not  entitle  tla-  de- 
fendant to  the  oi)enin«  and  eloslnji  aruiinient  to  tlie  jnry.     Loefnet'  v, 

Hiylit  to  open  and  close,  p.  HCti. 

In  uii  lnc|nislli(ni  of  insanity  tlie  eonnscl  for  ilic  |»risoiier  ylmuld  open  and 
close  the  case  to  the  jniy,     (^.  S.  v.  Lnncantfr  {V.  S.),  |).  hii7. 

oriNIONS. 

See,  also,  Exim'.u is. 

A  witness  not  an  expert  may  kIvc  his  opinion  of  a  person's  insanity,  if  ac- 
eomiianied  witli  Mie  facts  on  which  it  is  based.  Statew  £r6  (.Mo.), 
p.  11. 

Of  witnesses  when  adnii.sslhie.     State  v.  Stickley,  (la.),  p.  108. 

The  opinion  of  an  ordinary  ^witne.sH  as  to  a  pri.soner'.s  sanity  arc  inadmis- 
sible.    State  V.  lirinijea  (Ala.),  p.  ;'.4!i. 

C)|)lnions  of  witness  as  to  the  prisoner's  insanity  are  admissible.  Baldwin 
V.  State  (Mo.),  j).  ;}!)5. 

Uniirofessional  witnesses  may  be  asked,  after  giving  tlie  circumstances  and 
condnct  of  the  party,  to  state  their  opinion  as  to  his  sanity;  and  tlie 
exclusion  of  such  evidence  dfered  by  a  defendant  is  error.  Duvew 
State  (Tenn.),  p.  502. 

The  opinions  of  persons  not  experts  as  to  the  sanity  of  the  prhsoner  are  ad- 
missible, if  accompanied  by  the  facts  upon  which  they  are  founded. 
Choice  v.  State  (Pa.),  p.  538. 

The  opinions  of  witnesses,  that  tin-  prisoner  appeared  to  be  drinking  are 
admissible.     Id. 

The  opinions  of  physicians  as  to  the  .sanity  of  the  prisoner  on  facts  liypo- 
thetically  stated  are  admissible.     Id. 

OPIUM. 

Insanity  caused  by  use  of,  782. 
ORDER  OF  PROOF. 

See  Opkn  .\nd  Cj.osk,  Right  to. 

It  is  not  error  for  the  court,  on  a  trial  for  murder,  where  insanity  is  set  up 
as  a  defence,  to  require  the  defendant  to  submit  his  hypothetical  case 
to  his  professional  witnesses,  before  the  rebutting  evidence  of  the 
State  is  heard  on  the  question  of  insanity.  If  evidence  materially 
varying  the  hypothetical  case  is  afterwards  introduced,  the  defendant 
must  ask  leave  to  re-examine  as  to  the  new  matter.  If  the  new  proof 
does  not  make  any  change  in  the  hypothetical  case  submitted,  the  de- 
fendant would  not  be  injured  by  the  refusal.  Doce  v.  State  (Tenn.), 
p.  502. 

Where  the  prosecution  has  proved  a  homicide,  and  the  prisoner  introduces 
evidence  tending  to  show  his  insanity,  the  prosecution  may,  in  re- 
buttal, offer  evidence  of  express  malice.     Choice  v.  State  ((ia.),  p.  538. 


}>44 


IXDKX. 


PASSING  CUUXTKKFKIT  .MONKV. 
See  KxowLKixiK. 

I'KNNSYLVAMA. 

Test  ill,  p.  2iVJ 

Burden  on  prisoner,  i».  5i'0. 

I'LEA. 

It  is  not  error  for  tlx'  court,  in  its  clmrge,  to  spesilv  of  tlic  defence  of  in- 
sanity set  uj)  as  a  plea  of  insanity  put  in.  Dove  \.  Slate  (Teun.j, 
p.  502. 

In  a  case  wficre  tiie  liillinfj  is  proved  l)eyond  (juestion,  t-n'  the  judge  to 
cliarge  the  jury  that  the  plea  of  insanity  put  in  (tliedL-fence  of  insanity) 
was  an  admission  of  the  killing,  is  not  error.    Id. 

Inder  plea  of  not  guilty,  evidence  of  Insanity  is  admissible,  \>.  HOd. 

It  is  error  to  exclude  from  the  jury  evidence  of  the  prisoner's  insanity 
at  the  time  of  tiie  commission  of  the  offence,  on  the  plea  of  not  guilty. 
Gruherx.  State  (W.  \'a.),  p.  'J12. 

I'HKMEDITATION. 

See  I)E(iREK.s  or  Cnnii:. 

I'UKSHNT  INSANITV. 

(See  Tki.vi,,  Insaxitv  at  Ti.mk  ok:   Nkudkt,  In    x.virv  Aitki;. 

PKKSrMPTION. 

Every  one  presumed  to  lie  sane,  llovard  v.  State  (.Miss.),  p.  4;  L'.  S.  v 
McGlue  (U.  S.),  p.  54:  and  see  p.  513. 

If  the  homcide  charged  is  proven,  in  the  opinion  of  the  jury,  the  l)arl)arity 
of  the  act  affords  no  legal  presumption  of  insanity  in  the  accused.     Id. 

The  enormity  of  the  crime,  or  the  al)seiKe  of  motive  is  no  evidence  of  in- 
sanity. V.  S.  v.  Gtdteau  (V.  S.),  p.  1(14:  Larosv.  Com.  (Pa.),  j).  824: 
and  see  p.  85(i. 

Where  a  person  is  .sane  shortly  before  and  after  an  act,  the  presumiition  is 
that  he  was  sane  at  the  time.     Lynch  v.  Cinn.  (Pa.),  p.  i4i;. 

Tlie  continuance  of  insanity  is  presumed  unless  a  lucid  interval  is  sliown. 

State  V.  Spencer  (N.  J.),  P-  liJij. 
Where  it  is  shown  that  the  prisoner  was   insane   at  anytime  prior  to  tlic 

commission  ol  the  crime  charged,  the  law  presumes  tlic  continuance 

of  sucli  insanity  until  a  lucid   interval,  or  a  restoration   to  reason  is 

proved.     Baldvin  v.  State  (Mo.),  p.  I'>!t5. 
Where  insanity  is  shown  to  exist  a  siiort  time  before  the  act,  tlic  evidence 

should  show  insanity  at  the  time  or  tlie  jury  should  acquit.     State  v. 

Johnson  (Conn.),  p.  603. 
Delirium  tremens  to  be  available  as  a  defence  must  be  sliown  to  e.xist  at  tlic 

time  the  act  was  done.     In  tlie  case  of  temporary  in.sanity  tlu-re  is  no 

presumption  of  continuance.     State  v.  Seioell  (N.  C),  p.  817. 

Presumption  of  continuance  of  insanity,  p.  8(11. 

.\\\  attempt  at  suicide  niises  no  iiresumption  of  insanity,  ('uiih'w  Com. 
(Pa.),  p.  4  +  1. 


INDKX. 


945 


fence  of  in- 
U'  (Teiin.j, 

le  judge  to 
»f  insanity) 

Gfi. 

i''s  insanity 

not  guilty. 


»;   U.  S.  V. 

barl)!irlty 
used.     111. 

enco  of  in- 
O.P.  8-'+: 

imption  is 

is  sliown. 

rior  to  the 

ntinuante 

reason  is 

'  <'viden('e 
State  \ . 

cist  at  till' 
tiere  is  no 


''  \'.  Com. 


PKICVIOUS  AND  SUBSEQUENT  CONDITION. 

See  Priou  and  SrnsictiUKNT  Insanity, 
PRIOR  AND  SUBSEQUENT  INSANITY. 
/S'ee,  also,  Acts  and  Conduct. 
On  the  trial  of  the  sanity  of  a  person,  evidence  of  liis  previous  and  sul)se- 

quent  condition  is  admissible.     U.  S.  v.  Guiteau  (U.  S.),  p.  1(;4. 
Evidence  that  the  prisoner  had  been  insane  at  a  period  prior  to  the  date  of 

the  con^ijpiission  of  the  act  is  admissible.     State  v.  FeUer  (la.),  !t2. 
previous  or  subsequent  insanity  will  not  discharge  the  accused.     It  must 

be  shown  to  exist  at  the  time  the  deed  was  done.     State  v.  Hays  (La.), 

p.  7117. 

On  a  trial  for  murder  by  poisoning,  the  defence  being  insanity,  the  court 
submitted  to  the  jury  the  fact  of  the  sanity  or  insanity  of  the  prisoner 
on  the  day  he  purchased  tlie  poison  as  Avell  as  on  the  day  it  was  admin- 
istered.    Held,  proper.    Laros  v.  Com.  (Pa.),  p.  824. 

Previous  and  subsequent  insanity,  p.  8G0. 

On  the  trial  of  an  indictment  for  murder  the  court  refused  to  permit  evi- 
dence to  be  given  that  the  prisoner  was  insane  at  any  time  after  the 
finding  of  the  verdict  in  the  preliminary  issue  of  insanity  at  the  trial. 
Held,  error.     Freeman  v.  People  (N.  Y.),  p.  882. 

Where  the  prisoner  was  tried  for  murder,  four  months  after  the  crime  was 
committed,  evidence  that  he  was  insane  at  the  time  of  the  trial  was 
relevant  on  the  question  of  his  insanity  four  months  before.    Id. 

Under  a  plea  of  not  guilty,  evidence  of  the  prisoner's  insanity  both  l)e- 
fore  and  after  the  commission  of  the  offence  is  admissible.  People  v. 
Farrell  (Cal.),p.  'JOit. 

PROVOCATION. 

In  deciding  as  to  the  degree  of  a  homicide,  the  jury  may  consider  the 
drunkenness  of  the  accused  at  the  time  of  the  killing,  not  to  excuse  or 
mitigate  or  extenuate  his  crime,  but  to  assist  them  in  deciding  when 
there  was  a  provocation,  whether  the  intention  to  kill  preceded  the 
provocation,  or  was  produced  by  it.    Jones  v.  State  (Ga.),  p.  012. 

On  a  charge  of  murder,  the  fact  that  the  prisoner  was  Intoxicated  will  not 
make  an  inadequate  provocation  an  adequate  one,  unless  it  was  suffi- 
cient to  rendei  him  unable  to  form  a  wilful,  deliberate  and  premedi- 
tated design  to  kill,  or  incapalile  of  judging  of  his  acts  and  their 
legitimate  consequences.     Keenan  v.  Com.  (Pa.),  p.  715. 

Where  a  provocation  has  been  received  which  if  acted  upon  instantly  would 
mitigage  the  offence  of  a  sober  man,  and  the  question  in  the  case  of  a 
drunken  man  is  whether  that  provocation  was  in  truth  acted  on,  evi- 
dence of  intoxication  may  be  considered.  S'.ate  \.  McCauts  (^.  C), 
p.  722. 

RAPE. 

See  Intknt. 
60 


946 


INDEX. 


REASONABLE  DOUBT. 

See  iNSTRircTioxs. 

Deflnitiou  of,  p.  115,  140. 
RELATIVES,  INSANITY  IN. 

On  the  (lefeuce  of  insauity  in  the  prisoner,  evidence  that  his  father  wassul)- 
jcctto  fits  of  insanitj',  is  udmissible.     State  v Feltcr  (la.),  p.  !)2. 

Where  there  is  no  evidence  of  the  prisoner'.s  in.sanity,  evidence  of  the  in- 
sanity of  his  relatives  is  irrelevant.     Bmdlen  v.  >!tate  (lud.),  p.  114. 

In  connection  with  evidence  of  his  own  insanity,  testimony  showing  insanity 
of  his  parents  or  immediate  relatives,  is  relevant.  U.  S.  v.  G^iiteau'{V. 
S.),  p.  1(J4. 

Where  there  is  evidence  of  tlie  prisoner's  insanity,  the  fact  that  sonic  of  his 
ancestors  were  insane  is  relevant.     Haldwin  v.  State  (Mo.),  p.S'JC. 

An  hereditary  tendency  to  insanity  in  the  prisoner  may  he  sliown.  People 
V.  Garbutt  (Mich.),  p.  4(18. 

Evidence  of  mental  unsoundness  on  the  part  of  a  brother  or  sister  of  the 
person  whose  sanity  is  in  question  is  admissible.    Id. 

Where  hereditary  insanity  is  offered  as  an  excuse  for  crime,  it  must  appear 
that  tlie  insanity  actually  exists  in  tlie  prisoner;  tliatit  is  not  temporary, 
but  notorious,  and  of  the  same  species  as  other.mcmbers  of  the  family 
have  been  afflicted  with.     State  v.  Christmas  (N.  C),  p.  8i'l. 

Until  there  is  some  evidence  of  the  prisoner's  insanity,  the  court  is  not 
obliged  to  hear  evidence  of  the  insanity  of  Iiis  relatives.  Laws  v.  Com., 
p.  825. 

On  the  question  of  the  prisoner's  insanity,  it  was  error  to  refuse  to  permit 
an  inquiry  into  the  mental  condition  of  any  of  his  inmiediate  relatives. 
Hagan  v.  State  (Tenn.),p.  8.'!;!. 

P^vidence  of  insanity  in  relatives,  when  admissible,  p.  805. 

REPUTATION. 

The  insanity  of  the  prisoner  cannot  be  sliown  by  evidence  of  reputation. 
Choice  V.  State  (Ga.),  p.  5o8;  and  sec  p.  8<!0. 

SLEEPLESSNESS. 

Sleeplessness  and  nervous  restlessness  are  relevant  on  the  (|uestion  of  in- 
sanity velnoH.    Bosicell  v.  State  (Ala.),  p.  o52. 

SOMNAMBULISM. 

F.  and  W.  entered  togetlier  at  night  a  public  room  of  a  hotel,  sat  down  and 
went  to  sleep.  W.  awoke  .shortly  after  and  called  to  S.,  one  of  tlie  por- 
ters, for  a  bed  for  himself  and  F.  W.  then  attempted  to  awalien  F.  by 
slialcing  him,  but  failinjr,  asked  S.  to  wake  him  up.  S.  thereupon  shook 
F.  with  great  force  and  succeeded  in  awakening  him.  While  S.  was 
holding  him  by  the  coat  collar,  and  telling  him  to  go  to  bed,  F.  drew  a 
pistol  from  his  jiocket  and  shot  S.,  killing  him.  F.  then  went  out  of  the 
room  with  the  pistol  in  his  hand,  his  manner  being  that  of  a  frightened 
man,  saying  that  he  had  shot  some  one  but  did  not  know  whom.  F. 
«lid  not  know  nor  liad  he  ever  seen  S.  before.     On  his  trial  for  the  niur- 


INDEX. 


1>47 


SOMNAMBl'LISM  —  Continued. 

der  of  S.,  F.  offcreil  to  prove  that  he  had  been  a  slocp-walker  from 
infancy;  that  he  had  to  be  watched  to  prevent  injury  to  himself ;  that 
fre(|uently  wiien  aroused  from  sleep,  he  seemed  frijCfhtened,  and  at- 
tempted violence  as  if  resisting  an  assault,  and  for  some  minutes 
seemed  unconscious  of  what  he  did  or  wliat  went  on  around  him;  that 
sometimes  when  partly  asleei),  he  resisted  the  servant  who  slept  in  the 
room  with  him  as  if  he  sui)posed  the  servant  was  assaulting  him.  lie 
also  offered  to  prove  by  medical  expei  ts  that  persons  asleep  sometimes 
act  asif  awalie.  He  likewise  offered  to  prove  that  his  life  had  been 
threatened  l)y  a  person  living  near  where  he  liad  been  on  business  during 
the  day,  and  that  he  had  on  tiiat  morning  borrowed  tlie  pistol  witli  which 
he  shot  the  deceased  and  had  stated  at  the  time  that  he  was  required  to 
go  near  to  where  the  person  lived  who  hatl  tlireatened  him,  and  he 
wanted  the  pistol  f^  defend  himself  in  case  lie  was  atta(;ked.  Tlie  court 
rejected  all  this  proffered  evidence,  and  the  prisoner  excepted.  Held, 
error.  If  the  prisoner,  when  he  shot  tlie  deceased,  was  unconscious,  or 
so  nearly  so  that  lie  did  not  comprehend  his  own  situation  and  the  cir- 
cumstances surrounding  him,  or  that  he  supposed  lie  was  being  assailed, 
and  that  he  was  merely  resisting  an  attempt  to  take  liis  life  or  do  him 
great  liodily  injury,  he  sliould  be  acquitted.     Fain  v.  Com.  (Ky.),  p.  772. 

S I  •  I CIDE ,  ATT  J-:  MPT  AT . 

See  Presi'.mptiox. 
sr  UPRISE. 

See  New  Trial. 

TENNESSEE. 

Test  in,  p.  L'Cli. 
Burden  on  State,  p.  531. 

TEST  OF  INSANITY. 

See,  also,  Insam:  ok  Uncx»ntij()m,arle  Imiulsk;  Imreciie:  IlYPiK-ONPRiA. 
A  charge  which  makes  the  test  of  insanity  depend  upon  whetlier  tin  pris- 
oner knew  right  from  wrong  generally,  insteatl  oi  with  respect  U  tlic 
act  but  which  he  is  indicted,  is  erroneous.     Encin  v.  State  (Tex.),  ]). 
845. 

If  the  jury  believe  from  the  evidence  that  tlie  accused  killed  the  deceased 
with  malice  and  not  in  necessary  self-defence  he  is  guilty  of  murder,  not- 
withstanding tliey  may  believe  he  was,  at  the  time  of  committing  the 
deed,  laboring  under  partial  insanity,  unless  he  was,  from  such  in.sanity, 
incapaiile  of  understanding  the  nature  and  consequence  of  his  act,  and 
of  knowing  that  it  was  wrong,  and  that  lie  wouhl  lie  punished  for  it. 
Bovard  v.  State  (Miss.),  p.  5. 

Insanity,  however  produced,  con.stitutesno  excuse  for  crime,  unless  it  be  so 
great  as  to  deprive  the  party  of  his  power  to  understand  the  nature  of 
his  act,  or  of  his  ability  to  distinguish  between  right  and  wrong,  and  of 
his  ability  to  understaml  that  he  will  be  liable  to  punishment  if  he  com- 
mits it.     Id. 


D48 


IXDEX. 


TEST  OF  laSA^lTY  —  Continued. 

Though  a  party  be  partially  insane,  yet  he  is  responsible  for  his  criminal 
acts,  unless  it  appear  that  he  was  prompted  or  instigated  by  his  mad- 
ness to  perpetrate  such  act.     Id. 

To  entitle  a  person  charged  with  homicide  to  an  acquittal  on  the  ground  of 
insanity,  it  must  appear  that  his  mental  faculties  were,  at  the  time  the 
act  was  committed,  so  perverted  and  deranged  as  to  render  him  incap- 
able of  distinguishing  between  right  and  wrong,  with  respect  to  that 
particular  act.     State  v.  Erb  (Mo.),  p.  10, 

The  prisoner  was  indicted  for  murder,  the  defence  being  iusanity.  The 
judge  charged  the  jury  as  follows :  '•  In  every  case,  although  the  accused 
may  l)e  laboring  under  partial  insanity,  if  he  still  understands  the 
nature  and  character  of  his  act  and  its  consequences,  and  has  a  knowl- 
edge that  it  is  wrong  and  criminal,  and  a  mental  power  sufficient  to 
apply  that  knowledge  and  to  know  that  if  he  does  the  act  he  will  do 
wrong  and  receive  punishment,  and  possess  withal  a  will  sufficient  to 
restrain  the  impulse  that  may  arise  from  a  diseased  mind,  such  partial 
insanity  is  not  sufficient  to  exempt  him  from  responsibility  to  the  law 
for  tlie  crime."     /TeW,  correct.     Dejarnette  v.  Com.  (Va.),  p.  18. 

The  test  of  insanity  as  a  defence  to  crime  is  whether  or  not  the  prisoner  was 
laboring  under  sucli  a  defect  of  reason  from  disease  of  the  mind  as  not 
to  know  the  nature  and  quality  of  the  act  lie  was  doing,  or  if  he  did 
know,  that  ho  did  not  know  he  was  doing  what  was  wrong.  People  v. 
laeim  (N.  V.),  p.  20. 

Tlie  test  of  respousil)ility  for  a  criminal  act  when  unsoundness  of  mind  is 
set  up  for  a  defence  is  the  capacity  of  the  defendant  to  distinguisli 
between  riglit  and  wrong  at  the  time  of  and  with  respect  to  the  act 
which  is  the  subject  of  inquiry.     Flanagan  v.  People  (N.  Y.),  p.  37. 

Where  the  defence  of  insanity  is  interposed  to  an  indictment,  the  true  test 
of  criminal  responsibility  is,  whether  the  accused  liad  sufficient  reason 
to  know  right  from  wrong.  If  he  had  sufficient  intelligence  to  know  it, 
whether  he  had  sufficient  power  to  control  or  govern  his  actions  is  a 
matter  of  no  moment  wliatever.      Walker  v.  People  (N.  Y.),  p.  40. 

The  true  test  of  criminal  responsil)illty  wliere  the  defence  of  insanity  is 
interposed  to  an  indictment  is,  whether  the  accused  had  sufficient 
reason  to  know  the  nature  and  quality  of  his  act,  and  whether  ho  had 
sufficient  reason  to  know  right  from  wrong.     Id.,  p.  49. 

In  his  charge  the  recorder  refused  to  add  to  this  proposition  the  further 
one,  "  and  whether  or  not  he  (tlic  accused)  had  suflicient  power  of  con- 
trol to  govern  his  actions."  Held,  that  the  refusal  was  proper,  as  the 
recorder  had  charged  that  the  accused  must  have  sufficient  control  of 
his  mental  faculties  to  form  a  criminal  intent  before  he  can  be  held 
responsible  for  a  criminal  act,  which  was  as  far  as  the  court  should 
go  on  the  subject  of  control.     Id. 

It  is  not  every  kind  or  degree  of  insanity  which  exempts  from  punishment. 
If  the  accused  understood  the  nature  of  his  act;  if  he  knew  it  was 
wrong  ant!  deserved  punishment,  he  is  resi>onsible.  U.  S.  v.  McGlue 
(U.S.),  p.  54. 


INDEX, 


l)4i) 


as  the 


TEST  OF  IJ^HAmTY  —  Continued. 

There  is  no  legal  test  of  iusauity  in  a  criminal  case.  Stale  v.  Jones  (N.  II.), 
p.  CA. 

On  the  trial  of  an  indictment  for  murder,  the  jiuy  wore  instructed  that  if 
the  prisoner  counnitied  the  act  in  a  manner  tluit  would  be  criminal  and 
unlawful  if  he  was  sane,  the  verdict  should  be  "  not  guilty  by  reason  of 
insanity,"  if  the  killing  were  the  offspring  or  product  of  mental  disease 
in  tlie  prisoner.    Held,  correct. 

To  excuse,  the  mental  disease   must  be  such  as  to  destroy  tlie  power  to 

comprehend  the  nature  and  consequences  of  the  act,  and  to  overpower 

the  will.     State  v.  Meicherter  (la.),  p.  102. 
If  the  accused  was  conscious  that  the  act  was  one  which  he  ought  not  to  do, 

and  if  tlie  act  was  at  tlie  same  time  contrary  to  law,  he  is  punishable. 

McNaohtni's  Case  (Eng.),  p.  150. 

Capacity  and  reason  suflicient  to  enable  one  to  distinguish  between  right 
and  wrong,  and  understand  the  nature,  character,  and  consequences  of 
his  act,  with  mental  power  sutlicient  to  apply  that  knowledge  to  his 
own  case,  furnish  the  legal  test  of  sanity.  Com.  v.  Eoyera  (Mass.),  p. 
158. 

The  test  of  responsil)ility  where  the  defence  of  insanity  is  interposed,  is 
whether  the  accused  liad  sutHcient  use  of  his  reason  to  understand  the 
nature  of  the  act,  and  that  it  was  wrong  for  him  to  commit  it.  U.  S.  v. 
•Guiteau  (U.  S.),  p.  KJ-t. 

If  a  man  has  not  reason  suflicient  to  enable  him  to  distinguish  between 
right  and  wrong  in  relation  to  the  particular  act,  he  is  not  punishable. 
Nor  is  he  where,  in  consequence  of  some  delusion,  the  will  is  over- 
mastered and  there  is  no  criminal  intent.  Roberts  v.  State  (Ga.),  p. 
193. 

The  test  of  the  responsibility  or  irresponsibility  of  a  person  for  a  criminal 
act  done  while  in  an  alleged  state  of  insanity  is,  was  he  at  the  time  and 
as  touching  that  act  sane  or  insane?  If  he  had  suflicient  mental  capa- 
city at  the  time  of  committing  it,  to  distinguisli  between  the  right  and 
wrong  of  that  particular  act,  and  to  know  that  it  was  wrong,  he  is 
criminally  responsible  for  it.     State  v.  Pratt  (Del.),  p.  327. 

The  test  of  insanity  is  whether  the  accused  at  the  time  of  the  commission  of 
the  crime  was  conscious  he  was  doing  what  he  ought  not  to  do.  State 
V.  Spencer  (N.  J.),  p.  335. 

The  test  of  insanity  is  the  ability  to  distinguish  between  the  right  and  the 
wrong  of  the  act  charged.     Baldwin  v.  State  (Mo.),  p.  3',m;. 

To  establish  insanity  as  a  defence,  it  must  be  proved  that  at  tlio  time  of 
committing  the  offence,  the  prisoner  was  laboring  under  such  a  defect 
of  reason  from  tlisease  of  the  mind  as  not  to  know  the  nature  and  qual- 
ity of  the  act  he  was  doing,  or  if  he  did  know  it,  such  as  not  to  know 
that  he  was  doing  wrong.     State  v.  Klinger  (Mo.),  p.  410. 

The  test  of  the  prisoner's  responsibility  is  whether  he  Avas  capable  of  dis- 
tinguishing between  right  and  wrong  in  respect  to  the  act  charged. 
State  \ . Eedemeier  (Mo.),  p.  424. 


I 


{150 


INDEX. 


TKST  OF  INSANITY— ConimHed. 

A  person  who  has  reason  sufHciont  to  distinguish  between  right  and  wrong 
and  to  understand  tlie  nature  of  the  act  is  punishable.  Loeffner  v.  State 
(U.),P.  432. 

Wherever  it  appears  from  tlie  evidence  tliat  at  the  time  of  doing  the  act 
charged,  tlie  prisoner  was  affected  witliinsanity,  and  such  affection  was 
tlie  moving  cause  of  tiie  act,  witliout  which  he  would  not  have  done  it, 
he  ought  to  be  acfjuitted.     Hopps  v.  People  (111.),  p.  ^H. 

Insanity  to  excuse  crime  must  destroy  the  power  of  distinguishing  betweca 
right  and  wrong.     Vuniiinghnm  v.  State  (Miss.),  p.  470. 

But  the  degree  of  mental  unsoundness,  in  order  to  exempt  a  person  from, 
punishment,  must  be  such  as  to  create  uncontrolhil)le  impulse  to  do  the 
act  charged.  If  it  l)e  found  insulUclent  to  deprive  the  accused  of  ability 
to  distinguish  right  from  wrong,  he  should  be  held  responsible  for  the 
conseciuenccs  of  lils  acts.     Wriijht  v.  People  (Neb.)  p.  477. 

No  person  can  be  guilty  of  murder  who  has  not  suHicient  discernment  ta 
distinguish  between  good  and  evil,  and  wlio  has  no  consciousness  of 
doing  wrong  in  the  act  he  is  committing.  Dove  v.  State  (Tenii.),  p. 
502. 

If  a  man  has  capacity  enough  to  distinguish  between  the  right  and  wrong  of 
his  act,  lie  is  a  subject  for  punishment.     Choice  v.  State  (Ga.),  p.  539. 

The  test  of  insanity  is  tlie  ability  to  distinguish  lietwcen  rig>it  and  wrong. 
In  case  of  jiartial  insanity,  tlie  question  is  whether  the  prisoner  was 
capable  of  distinguishing  between  right  and  wrong  in  the  particular 
connection  in  which  the  unlawful  act  was  done.  Carter  v.  State  (Tex.), 
p.  58!). 

To  be  criminally  responsil)le  a  man  must  have  reason  enough  to  be  al)le  to 
judge  of  the  character  and  conseciuences  of  the  act  committed,  and 
must  not  be  overcome  by  an  irresistible  impulse  arising  from  disease. 
State  v.  Johnson  (Conn.),  p.  (loa. 

The  test  of  responsil)ility  is  whether  the  accused  had  sufficient  reason  to 
know  right  from  wrong,  and  whetlier  or  not  he  had  suttlcient  power  of 
control  to  govern  his  actions.     Smith  v.  Com.  (Ky.),  p.  (Jdl). 

The  capacity  to  distinguish  1)et\veen  the  right  and  wrong  of  the  act  is  the 
test  of  unpunishable  insanity.     State  v.  Sewell  (N.  C),  p.  81(5. 

The  test  of  insanity,  when  alleged  as  a  defence  to  an  indictment,  is  whether, 
at  the  time  of  committing  the  act,  the  prisoner  was  laboring  under 
such  mental  disease  as  not  to  know  the  nature  and  quality  of  the  act  he 
was  doing,  or  that  it  was  wrong.     Freeman  v.  People,  p.  882. 

The  child  test,  p.  200. 

The  wild  beast  test,  p.  20n. 

Erskine's  argument  in  Iladlleld's  Case,  p.  201. 

Test  of  knowledge  of  right  and  wrong  in  the  abstract,  p.  218. 

Test  of  knowledge  is  applied  to  particular  case,  p.  2I'J. 
Test  in  England,  pp.  219-231. 
Right  and  wrong  test  in  the  American  courts,  p.  231. 


«^* 


INDEX. 


!>51 


gilt  and  wi-oii<r 
^oeffner  v.  State 

(loiiitf  tlie  act 
h  affection  was 
t  have  done  it, 

•filing  between 

i  person  from 
)ulse  to  do  tlie 
ised  of  ability 
nsible  for  tlie 

r 

scernment  ta 
sciousness  of 
5   (Tenn.),  p. 

and  Avrong  of 
:;Ga.),  p.  o3!t. 
t  and  wrong, 
prisoner  was 
le  particular 
State  (Tex.)> 

to  be  able  to 
imitted,  and 
■ora  disease. 

It  reason  to 
nt  power  of 

0  act  is  tlie 

1  is  wlietlier, 
oring  under 
f  the  act  he 


TKST  OF  INSANITY  —  Continued. 
In  Alabama,  p.  2,} I. 

California,  p.  i>31. 

Delaware,  p.  231. 

Georgia,  p.  232. 

Kansas,  p.  232. 

Maine,  p.  232. 

Massachusetts,  p.  2;>2. 

Michigan,  p.  233. 

Minnesota,  p.  233. 

Mississippi,  p.  233. 

Missouri,  p.  233. 

Nebraska,  pp.  234,  874. 

New  Jersey,  p.  234. 

New  York,  pp.  234,  87o. 

North  Carolina,  p.  257. 

Ohio,  p.  257. 

Pennsylvania,  p.  25!». 

Tennessee,  p.  2()!i. 

Texas,  pp.  2(>!},  875. 
In  the  United  States  Courts,  p.  270. 
No  test  in  New  Ilampsliire,  p.  311. 
Nor  in  Illinois,  p.  324. 
Nor  in  Indiana,  p.  324. 

That  person  is  simply  of  low  mental  capacity  not  au  excuse,  p.  782. 
TEXAS. 

Test  in,  p.  209. 

Burden  on  prisoner,  p.  532. 

TKIAL,  INSANITY  AT  TIME  OF. 
See,  also,  Ciiallexoe. 

The  mode  of  trying  present  insanity  at  trial  stated.    People  v  Kleim  (N 
Y.),p.  2(1. 

The  form  of  oath  administered  to  the  jury  in  such  cases.    /(/. 

On  such  inquiry  the  prisoner  holds  the  affirmative  of  the  issue.    Id. 

On  an  indictment  for  a  capital  crime  if  the  jury  tind  that  the  prisoner  tie" 
Iccts  to  plead  by  the  act  of  God,  the  court  will  not  trv  him  upon  tl^e 
indictment.     Com.  v.  L'raie?/  (Mass.),  p.  881. 

A  person  while  he  continues  insane  cannot  be  tried  or  punished;  aliler,  if 
he  be  capable  of  comprehending  his  position  and  of  making  his  ilefeiice 
though  on  some  subjects  his  mind  may  be  deranged.    Freeman  v  People 
(N.  Y.),  p.  882.  ^ 

Insanity  at  the  trial  should  be  tried  by  a  jury;  but  other  methods  may  be 
adopted  by  the  court  in  its  discretion. 

Whenever  a  prisoner's  sanity  at  the  time  of  the  offence  alleged  is  in  ques- 
tion, the  rule  that  he  may  control  or  discliarge  his  counsel  at  pleasure 
should  be  so  far  relaxed  as  to  permit  them  to  offer  evidence  on  these' 
points,  even  against  ids  will.     State  v.  Patten  (La.),  p.  iioi. 


9r)2 


INDEX. 


TRIAL,  INSAMTV  AT  TIMK  UV  —  Continued. 

Im  ii  criiiiiiial  caso,  when  after  the  close  of  tlie  testimony  in  i)ehalf  of  tlio 
Statu,  the  counsel  of  the  accused  alleged  the  prisoner's  Insanity  before^ 
at  tlie  time  of,  and  since  tlie  killing,  and  offered  to  introduce  testimony 
in  proof  of  the  fact,  and  thereupon  tiie  prisoner  arose,  and  repudiated 
sucli  defence,  and  discharged  his  counsel,  and  the  court  gave  the  case 
to  the  jury  witliout  further  evidence  or  pleadings  on  behalf  of  the  pris- 
oner. Held,  that  tiie  court  erred  in  allowing  the  prisoner,  under  the 
circumstances,  to  discharge  his  counsel,  and  erred  In  not  allowing  them 
to  offer  proofs  on  the  (|uestlon  of  Insanity.    Id. 

Where  it  Is  suggested  that  a  prisoner  brought  up  for  trial  or  judgment  is 
Insane,  the  question  of  his  sanity  must  l)e  sul)niitted  to  a  jury.  The 
rule  is  the  same  where  tlie  prisoner  has  been  found  to  be  insane,  the 
trial  postponed,  and  called  again  at  a  subsequent  term.  People  v.Far- 
rell  (Cal.),  p.  JtOii. 

On  a  second  trial,  the  former  verdict  is  i'  missible  on  the  question  of  pres- 
ent insanity.    Id. 

The  verdict  of  a  jury,  called  to  examine  the  sanity  of  a  person  at  the  trial, 
that  he  Is  Insane,  is  conclusive  that  he  was  insane  when  it  was  ren- 
dered, and  Is  admissible  in  evidence  on  his  trial  for  the  offence,  as 
tending  to  show  that  he  may  have  been  Insane  when  the  offence  was 
committed.    Id. 

If  there  is  reasonable  ground  to  doubt  the  sanity  of  the  accused  at  the  time 
of  the  trial,  and  after  a  jury  is  impanelled,  it  is  the  duty  of  the  court  to 
suspend  the  trial  and  to  Impanel  another  jury  to  inquire  into  the  fact 
of  such  sanity.  If  such  jury  find  the  accused  to  be  insane  at  the  time  of 
the  trial,  it  shall  then  inquire  as  to  his  sanity  at  the  time  of  committing 
the  offence.  If  such  jury  tlnd  the  accused  to  be  insane  at  the  time 
the  offence  was  committed,  that  fact  is  a  good  defence  in  bar  of  further 
prosecution.  If  such  jury  find  the  accused  sane  at  the  time  of  the 
trial,  then  the  trial  in  chief  shall  proceed.  Qruber  v.  State  (\V.  Va.)  p. 
<tl2. 

Insane  person  cannot  be  tried,  p.  910. 

Nor  can  intoxicated  person,  p.  i)18. 

UNCONTROLLABLE  IMPULSE. 
See  INSANK  Impulse. 

UNITED  STATES. 

Tests  in  Courts  of,  p.  270. 

VERDICT,  INSANITY  AFTER. 

If  after  verdict,  but  before  sentence,  a  prisoner  becomes  insane,  it  is  good 
ground  for  staying  the  sentence ;  aliter  where  the  insanity  is  the  same 
as  has  been  passed  on  by  the  jury.     State  v.  Brinyea  (Ala.),  p.  349. 

Where  the  jury  have  found  that  the  prisoner  was  not  insane  at  the  time  of 
the  act,  and  after  verdict  present  insanity  is  alleged,  the  trial  of  this 
plea  by  a  jury  is  not  of  right,  but  rests  in  the  discretion  of  the  court.. 
Laros  v.  Com.  (Pa.),  p.  824. 


I.VDKX. 


!»:.,"> 


ehalf  of  the- 
iiilty  I)efore> 
;e  testimony 
I  repudiatod 
ave  the  case 
of  the  pris- 
r,  uiKler  tlie 
lowiiii^thein 

judgment  is 
jury.  The 
insane,  tlie 

eople  v.Far-^ 

ion  of  pres- 

at  the  trial, 

it  was  ren- 

ofEence,  as 

offence  was 

at  the  time 
he  court  to 
ito  the  fact 
the  time  of 
committing 
t  the  time 
r  of  further 
bime  of  the 
W.  Va.)  p. 


VI-:i{I)iCT,  INSANITY  .WTEU— Vontinnrd. 

rpon  an  in<|uisition  of  insanity  on  a  motion  for  a  now  trial  iifttr  verdict  of 
guilty  of  perjury,  the  qiu'stion  is  the  same  as  if  ruiscd  wiicn  tiif  pris- 
oner was  called  to  j)iead.  The  qui-stioii  to  l)e  decidet!  is,  whether  tlu' 
defendant  Avas  incapaljle  of  comprehending  the  dangerous  position  in 
which  he  was  placed,  and  of  taking  intelligent  measures  to  meet  it. 
U.  S.  V.  Lnncaster  (V.  H.),  p.  8!I7. 

If  a  priscmer  after  conviction  allege  why  sentence  should  not  t)e  pronounced 
that  he  is  a  lunatic,  but  the  judge  upon  his  own  inspection  is  satisfied 
that  the  i)lea  is  false,  he  may  pronounce  sentence  without  calling  a  jury 
to  try  the  issue.  But  aUter  where  the  judge  has  a  iloubt  or  the  case  is 
one  of  difUculty.     Bonds  v.  State  (Tenn.),  p.  '.tOo. 

In  an  inquisition  to  inquire  into  the  sanity  of  a  man  convicted  of  murder 
and  sentenced  to  be  hanged,  and  whom  it  is  alleged  has,  after  conviction, 
become  insane,  evidence  of  his  insanity  at  times  ijefore  conviction  is 
only  admissible  as  explanatory  of  his  acts  since.  SiHiiin  v.  state  ((ia.), 
p.  OOii. 

Whether  certiorari  will  lie  to  review  the  proceedings  before  a  jury  called 
under  the  statute  to  inquire  into  the  sanity  of  a  prisoner  alleged  to 
have  become  insane  since  his  conviction,  quaere.     Id. 
Insanity  after  verdict  or  judgment,  j).  ',)i;i. 
Test  in  courts  of,  p.  270. 
VIRGINIA. 

Burden  of  proof  on  prisoner,  p.  521. 
VOTING  TWiCI':  AT  ELECTIONS. 
See  Lntext. 

WEST  A^RGINIA. 

Burden  of  proof  on  prisoner,  p.  521 . 
WILD  BEAST. 

The  wild  beast  test,  p.  200. 
WITNESS. 

Sec  FOHMKR    TiMAI.. 


it  is  goocT 
s  the  same 
).  349. 

he  time  of 
ial  of  this 
the  courts 


